Will the U.S. Constitution survive George W. Bush?

Local constitutional scholars warn that the American system of checks and balances has grown perilously out of whack. Can democracy be saved?

He knows when you’ve been naughty. He knows when you’ve been nice. Big Brother Bush hears you, even if you don’t want him to.

He knows when you’ve been naughty. He knows when you’ve been nice. Big Brother Bush hears you, even if you don’t want him to.

Illustration By Rick Sealock

It’s a balancing act, and none too subtle. For more than two centuries, the executive, legislative and judicial branches of the U.S. government have engaged in a three-way tug of war guided by a simple and remarkably resilient document, the Constitution of the United States. It has seen us through the birth of a nation, the Civil War and the struggle for equal rights, always managing to restore the nation’s equilibrium, no matter how fractious the disagreement.

Today, that equilibrium is threatened once again, by a wartime president who has pushed the limits of executive power the Constitution grants the commander in chief of U.S. military forces to the extreme.

Previous presidents have attempted to expand executive power during wartime, but those wars ended and stability returned. However, President George W. Bush’s war on terror promises to be a conflict without end, and there seems to be no limit to the executive powers his legal advisers have magically conjured from out of modern democracy’s most hallowed document.

Benjamin Franklin’s dictum that those who would give up liberty for security deserve neither has been thrown by the wayside. The result is that an increasing number of constitutional scholars, policy-makers and politicians, including local law professors from the UC Davis and McGeorge law schools, are warning that the balance of powers has grown perilously out of whack. Some are even calling it a constitutional crisis.

While we all share responsibility for this crisis, if that’s what it is, the brunt of it currently rests on the shoulders of a single man, a native Sacramentan, Supreme Court Justice Anthony Kennedy.

To say The Wall Street Journal editorial board is upset with Justice Kennedy is putting it mildly. The moderate conservative authored the 5-4 majority decision last month in Boumediene v. Bush, which found that an Algerian native being held at Guantanamo Bay is entitled to the habeas corpus provisions of the Constitution; that is, he is eligible to seek legal relief from unlawful detention.

Also known as the Great Writ, the history of habeus corpus goes back more than 700 years, to English common law. The Journal minced no words in its critique of the court’s decision to extend the writ to enemy combatants being held at Guantanamo.

“Justice Kennedy’s opinion is full of self-applause about his defense of the Great Writ and no doubt it will be widely praised as a triumph for civil liberties. But we hope it is not a tragedy for civil liberties in the long run. If there is another attack on U.S. soil—perhaps one enabled by a terrorist released under the Kennedy rules—the public demand for security will trample the Constitutional delicacies of Boumediene.”

It’s the same hard line the Bush administration and its supporters, Republicans and Democrats alike, have been pushing for seven years, ever since the terrorist attacks on 9/11. You can have liberty or security, but not both. Ben Franklin is rolling in his grave.

In the Constitution, the decider in chief has found license to detain prisoners of war and suspected terrorists indefinitely, including U.S. citizens, without legal recourse or contact with the outside world. When confessions were not forthcoming, the Bush legal team found justification for torturing detainees, conflicting with U.S. and international law. The powers vested in the “unitary executive” even allow Bush to violate the Foreign Intelligence Surveillance Act and eavesdrop on the telephone and Internet conversations of American citizens.

This is not your father’s Constitution. It’s not even Bush’s father’s Constitution.

In the aftermath of 9/11, the Bush administration harnessed the nation’s fear and bloodlust rode roughshod over the Constitution. Congress cowered before the tinhorn Churchill barking malapropisms from the rubble pile, granting him a blank check to remake the map of the Middle East. When corruption and lawlessness here and abroad became impossible to ignore, official investigations were stymied by the administration’s penchant for secrecy. As George W. Bush celebrates his last Fourth of July as commander in chief, he continues to do what he wants, and his successor stands to assume the same powers. And while the administration’s most strident critics come from the left side of the aisle, libertarians and even a few Republicans have joined the fight. They say if the constitutional system of checks and balances is not righted, and quickly, our democracy may be in danger.

That sounds a lot like a crisis. But things may not be as bleak as they seem, according to UC Davis School of Law professor Vikram Amar, who counts constitutional law among his areas of expertise.

“Progressives who view the Constitution in crisis are exaggerating somewhat,” Amar said. “Just look at the last couple of weeks. You’ve got the Supreme Court repudiating the president and Congress’ attempt to subject Guantanamo detainees to some kind of abbreviated military justice. You’ve got a 5-4 majority striking down Louisiana’s attempt to impose the death penalty for something other than murder [the rape of a child]. In both cases, Justice Kennedy sided with the liberal wing of the court in these very important decisions.”

Perhaps, if there were nine Clarence Thomases or nine Antonin Scalias on the bench, progressives would have more cause for concern, Amar said. For the time being, the court is slowly but surely reining in Bush’s executive overreach.

“I don’t think we’re in a crisis,” Amar said. “Not yet.”

The decider in chief
In January 2001, George W. Bush took the oath of office as prescribed in Article II of the Constitution, solemnly swearing to faithfully execute the office of president and to the best of his ability preserve, protect and defend the Constitution of the United States.

The meaning of those simple words would be utterly altered by the deadly terrorist attacks on September 11.

Exactly one week after the attack, Congress passed the Authorization for to Use of Military Force Against Terrorists, permitting the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

The war on terror had begun, fully supported by a populace still reeling from the live-on-TV collapse of the twin towers. In October 2001, coalition forces began bombarding Afghanistan. Congress hastily crafted and passed the Patriot Act, which dramatically expanded the power of law enforcement agencies to invade the privacy of Americans.

It wasn’t enough for Bush. The administration’s next move, which came as it prepared to process the influx of prisoners captured on the battlefields of Afghanistan, continues to perplex McGeorge School of Law professor John Sims.

“A sensible person trying to devise procedures to deal with enemy combatants would have said, well, you know, we have a whole court marshal system that deals with military matters and is very sophisticated and is frequently used,” Sims explained over coffee in Midtown last week. “Why don’t we get these experts together and work out procedures that will give us as much secrecy as we need in the carrying out of these prosecutions, that will be fair enough to withstand court scrutiny, that will be relatively quick, and we’ll get Congress to approve them? We know with their mood after 9/11, Congress would have signed off on anything.”

But that never happened. Instead, the hardcore neoconservatives in the Bush administration made it up as they went along. Secretary of Defense Donald Rumsfeld and Vice President Dick Cheney, armed with dubious legal advice provided by David Addington and UC Berkeley School of Law professor John Yoo, muscled the legal experts from the Judge Advocate General Corps and the State and Defense departments out of the way.


Nancy Pelosi was among the first members of Congress to approve of Bush’s warrantless wiretap program. She still thinks it’s a great idea.

Illustration By Rick Sealock

“They said, let’s not talk to the military lawyers, because those guys will want to give a fair trial, and we can’t afford a fair trial; we need to get this done fast,” Sims continued. “So they exclude everybody else and they dream up their own little plan and they just announce it, in November 2001. They didn’t ask Congress to approve it, they didn’t want Congress to approve it, they just announced it. Here’s what we’re gonna do. So there.”

UC Davis law professor Diane Marie Amann, an expert on the Constitution, international law and border affairs, began closely following the Bush administration’s plans regarding detainees immediately after 9/11. Although she’s away for the summer and not available for comment, she has written extensively about the issue, including what has become known as the Supreme Court’s “detention trilogy,” a series of three cases decided in 2004 that first hauled in the reins on Bush’s detainee policies. Two years before those decisions, the world got its first glimpse of what the U.S. war on terror would look like. Amann writes:

“On January, 11, 2002, exactly four months after the attacks in New York and Washington, a U.S. cargo plane delivered the first group of captives, hooded, shackled and clad in lurid orange jumpsuits, to cages hastily constructed inside the military base at Guantanamo Bay, on the island of Cuba. … Guantanamo became the premier site at which the U.S. executive subjected captives to interrogation, without access to family or counsel and with little hope for release. At one point the detainee population approached 700. Detainees reportedly came from dozens of countries and ranged in age from as young as ten to as old as 105.”

Bush ignored international outcry over the prison; impetuous fiat became the administration’s modus operandi, John Yoo one of its chief legal enablers. Sims has debated Yoo twice at local Federalist Society events; last November, they squared off over the issue of warrantless wiretapping. But in the early days of the war on terror, then White House Counsel Alberto Gonzalez tasked Yoo with providing legal cover for CIA operatives to use torture and other forms of cruel and inhumane punishment to extract information from prisoners, which is prohibited by U.S. and international law. Yoo found cover by grotesquely twisting the Constitution to suit the Bush administration’s needs. Gonzalez signed off on the “torture memo” just as prisoners began arriving in Guantanamo.

“Their bottom line is this,” Sims elaborated. “If the president tells you to torture someone because he needs to do that as commander in chief, well then, even if the statute says it’s a crime, the statute must be unconstitutional. It’s constitutional law flipped on its head.”

Here, the outlines of the constitutional crisis are clearly delineated.

“The president is violating the law,” Sims said. “Torture is illegal. The U.S., through its treaty commitments and by statute, has outlawed torture, and the president is directing his subordinates to commit torture.”

Sims granted that it’s possible that a statute—even the U.S. prohibition against torture—might be invalid because, say, it violates the wartime authority granted to the commander in chief. But no one individual branch may unilaterally decide what those statutes are. The Constitution provides a remedy for that.

“The one legitimate response by a president who sees a law that is a problem is to formulate a proposal for changing the law and present it to Congress and argue for it,” Sims said. “When your party controls both houses, that shouldn’t be an unattractive path.”

In fact, no matter who controls Congress, it’s the path demanded by Article II and implicit in the oath of office Bush gave to take care that all laws are faithfully executed. But time and time again, on issues ranging across the board from the detention of detainees to the surveillance of American citizens to the classification of state secrets and beyond, the Bush administration has taken the low road and gone their own way.

“In many areas, the administration’s decision, made cold-bloodedly, has been to not follow the law, because the law was found to be unwise, or inconvenient, or too tedious and confining,” Sims said. “For whatever reason, they just decided to not follow the law.”

But like a late Republican president once said, you can run, but you can’t hide.

Congress falls down
Run Bush did, using all of his newfound power, real and imaginary, to direct the country’s anger and military might against Iraq, a country that had nothing to do with the terrorist attack on America.

Iraq had long been in the sights of the necons that dominate the Bush administration, who view the country as a stepping stone to a “New American century” that will see America rise as the one and only true superpower. September 11 was the new Pearl Harbor the neocons had longed for, and they wasted little time building a false case to justify an invasion.

When weapons inspectors and other intelligence sources reported that Iraq had no discernable weapons-of-mass-destruction program and no known connections to Al Qaeda, administration officials from the president on down conjured facts up out of thin air, generated false intelligence reports from the vice president’s Office of Special Plans and disseminated bogus WMD stories to willing mainstream media outlets, such as The New York Times and The Washington Post.

Although easily debunked, the propaganda worked on a nation still trying to decipher the Homeland Security’s color-coded terrorist-attack warning system. In October 2002, a cowed Congress granted Bush his second authorization to use military force, this time against Iraq. In March 2003, the United States invaded in what Sims calls an “embarrassing failure of our political process.”

“It’s somewhat false to blame Iraq totally on the president,” he said, adding that many members of Congress were fully aware the facts on the ground didn’t support Bush’s call for a pre-emptive strike. “While the president was the main decider, he was not the only decider, he had lots and lots of others, including lots of media outlets who were saying, yeah, go for it!”

But despite Congress’s failure to keep Bush in check, the Constitution provides another remedy: elections. By the time the 2004 contest rolled around, public support for the war in Iraq was beginning to wane. Nevertheless, Democrats in Congress, many of whom had approved the use of force against their own better judgment, approached the election cautiously, fearful of ceding the terrorism issue to the commander in chief. Had he been more bold, Sen. John Kerry and the Democrats might have defeated Bush, halting the constitutional crisis in its tracks. Instead, they lost a narrow contest that saw the Republicans retain majorities in both houses.

In the months prior to the 2006 midterm elections, an increasing number of scholars, politicians and policy-makers began declaring a constitutional crisis. Among the more eloquent was former Democratic Presidential candidate and longtime Senate Intelligence Committee veteran Sen. Gary Hart, who observed, “President Bush has given Commander-in-chief Bush unlimited wartime authority. Relying on opinions from Attorney General Albert Gonzales, then working in the White House, and John Yoo, in the Justice Department, Bush has insisted there can be no limits to the power of the commander-in-chief in time of war. More recently the president has claimed that laws relating to domestic spying and the torture of detainees to not apply to him.”

The 2006 midterm election swept Democrats into power in both houses of Congress and provided clear-cut proof that the public was fed up with Bush’s executive overreach. Yet progressives, libertarians and even old-school paleoconservatives such as Pat Buchanan who hoped the Democrats might curb Bush’s wartime power grab would be sadly disappointed. Congress continued to fund the unpopular war, incoming House Speaker Nancy Pelosi immediately took impeachment off the table and with relatively few exceptions—Reps. John Conyers and Dennis Kucinich and Sen. Russ Feingold come immediately to mind—Democrats continued to dance to Bush’s lead.

It’s the same old fear-driven equation that’s been in effect since 9/11: What do you want, liberty or security? You can’t have both.

Last week’s debate over the proposed amendments to the Foreign Intelligence Surveillance Act offered yet another case in point. The FISA controversy began in late 2005, when The New York Times disclosed that the National Security Agency, with the complicacy of the major telecommunications carriers, had launched a massive new electronic-surveillance program after 9/11 that may have violated the privacy of millions of American citizens without obtaining warrants as required by statute. At a Senate Judiciary Committee in January 2006, Attorney General Alberto Gonzalez testified that the administration “commenced down this road five years ago because of a belief that we could not do what we felt was necessary to protect this country under FISA. That is why the president relied upon his inherent authority under the Constitution.”

Except of course the president has no inherent constitutional authority to break the laws of the United States anytime he feels like it. That’s why the telecommunications companies that assisted the administration are desperately seeking backdated immunity to protect themselves from the myriad of lawsuits that have sprung up across the nation. The House was more than willing to oblige them.

The new legislation passed on Friday not only provides the blanket immunity the telecoms were seeking, it grants even more surveillance power to the president. Writing in The American Prospect, Julian Sanchez awarded the prize for most bald-faced lie on the floor of the House to Nancy Pelosi, for insisting the bill “does not allow warrantless surveillance of Americans.”


Between democracy and despotism: Local boy Supreme Court Justice Anthony Kennedy may be the Constitution’s best hope.

Illustration By Rick Sealock

“She is wrong,” Sanchez continued. “It does. The broader spying powers given to the executive branch by the compromise bill require intelligence agencies to ‘target’ foreigners. But if those foreign ‘targets’ happen to call or e-mail Americans, those communications are fair game. And since the Foreign Intelligence Surveillance Court is only permitted to review the broad targeting procedures government eavesdroppers use to determine that a target is abroad, and not the substantive basis for authorizing surveillance of any target, anyone is a potential target. The bill, in other words, allows the government to conduct ‘vacuum cleaner’ surveillance—sweeping up international traffic willy-nilly—then filter it for anything that looks interesting.”

This week, the bill headed for almost certain passage by the Senate, where a frustrated Feingold has been leading the opposition to it.

“This is a deeply flawed bill, which does nothing more than offer retroactive immunity by another name,” said Feingold, the only member of the Senate who voted against the Patriot Act. “If the Senate does proceed with this legislation, our immediate response will be to offer an amendment that strips the retroactive immunity from this bill. We hope our colleagues will join us in supporting Americans’ civil liberties by opposing retroactive immunity and rejecting this so-called ‘compromise’ legislation.”

Protect the security and civil liberties of Americans? That’s a program most congressional Democrats just can’t seem to get behind.

Court is in session
Cry wolf one too many times and people stop listening. That didn’t prevent the Journal from going to the fear-well a half-dozen times in its savaging of Kennedy’s majority opinion in Boumediene v. Bush.

“We can say with confident horror that more Americans are likely to die as a result,” the Journal warned, echoing Antonin Scalia’s predictably prickly dissent.

The problem with the admonition, as National Lawyers Guild president Marjorie Cohn has noted, Scalia based the claim on an erroneous government report that as many as 30 prisoners released from Guantanamo had returned to the battlefield. In fact, only one detainee has returned to the battlefield, and that was against the military’s wishes.

When in doubt, scare the crap out of them.

“Scalia, who sits on the highest court in the land, has acted as a loyal foot soldier for the executive branch of government,” Cohn concluded.

While it’s commonplace to think of Supreme Court Justices as omniscient masters of objectivity looming over the bench, there’s an “enormous political dimension to the court,” explained UC Davis School of Law professor Alan Brownstein, a nationally recognized constitutional-law scholar.

“What’s important here is not only do the justices have different methodologies for interpreting the Constitution,” Brownstein said, “they bring different values to the court. Their own [individual] understanding of social reality is very, very different.”

Those differences color the way many important cases are decided—and generate a lot of paperwork.

“Get a copy of the United States Constitution and look at it, see how small it is,” Brownstein said. “Then go to a law library and look at the 600 volumes of the United States courts, which are interpreting the Constitution. There’s no objective way to get from this very limited document to these extraordinarily complex cases.”

In any event, a majority of the justices in Boumediene were capable of seeing past Scalia’s fear-mongering to the obvious: The United States maintains de facto sovereignty over Guantanamo, and therefore, the administration must abide by the Constitution in the treatment of the prisoners held there.

“U.S. officials freely admitted that they had chosen Guantanamo for reasons of extraterritoriality,” writes UC Davis law professor Diane Marie Amann. “That is, because they believed that no court of the United States, let alone any enforcement mechanism, possessed the power to ensure that non-Americans at the offshore base received the benefits of the rule of law.”

As it turns out, U.S. officials were wrong on more than just that count. The Bush administration rejected review of detainee cases by international groups such as the Inter-American Commission on Human Rights and the International Committee of the Red Cross. The Supreme Court initially declined to hear the federal appeals filed by the detainees. But then the court reversed course in the summer of 2004, resulting in a trio of rulings that Amann refers to as the “detention trilogy.”

In the first ruling, Rasul v. Bush, the court held that U.S. courts do have jurisdiction to consider whether Guantanamo detainees are being held lawfully. The remaining two cases involved a pair of U.S. citizens defined as “enemy combatants,” Jose Padilla and Yaser Esam Hamdi. The court declined to rule in Rumsfeld v. Padilla, but in Bush v. Hamdi, the court found that while Bush, as commander in chief, has the power to detain enemy combatants, Hamdi is entitled to due process, including the right to an attorney and to confront the facts against him in an impartial court.

“The detention trilogy of June 2004 thus put an end to the period in which the executive had enjoyed unfettered discretion to detain and interrogate, inside and outside the United States, persons it considered enemies in what it calls its war on terror,” Amann writes. “The landmark consequences of its essential holding—that in a democracy founded on the separation of powers the judicial branch is obliged, even in wartime, to check the executive—soon became apparent.”

Hamdi, a duel citizen, was flown home to Saudi Arabia after renouncing U.S. citizenship. Padilla was transferred to the federal court system, where he was tried and convicted in a civilian court and sent to prison. The ad hoc special military commissions by which some of the detainees were to be tried were stopped by a federal judge. Amann asserts that the horrors of Abu Ghraib, made public as the justices were deciding the trio of cases, may have played an important roll in their decision-making process. She writes:

“Four justices in the Padilla case spoke of torture—an issue central to Abu Ghraib but not raised in the cases at the bar—in the course of condemning indefinite, incommunicado detention. ‘At stake in this case,’ they wrote, ‘is nothing less than the essence of a free society. … Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber.’ Having raised the specter of that loathed and secret tool of the old English monarchy, the four observed, ‘There is torture of mind as well as body; the will is as much affected by fear as by force. And there comes a point where this Court should not be ignorant as judges of what we know as men.’”

In the long run, the men and the women who serve on the Supreme Court are the final bulwark protecting the Constitution—our liberty and our security—from out-of-control executives such as George W. Bush, in peace or in wartime. As we’re reminded every time a presidential election rolls around, the most important decision the executive makes is his her nominees to the highest court in the land.

Amar, Sims and Brownstein all expressed concern that the Supreme Court is in danger of tipping decidedly to the right, should Republican presidential nominee John McCain win November’s election. But for now, Justice Anthony Kennedy is the man of the moment, the swing vote on a court that could go either way, conservative or liberal, depending on the case before it.

“He’s a very unusual guy,” said Sims, who will soon join Kennedy to teach at McGeorge’s summer session in Salzburg, Austria. The Sacramento native enjoys mixing with the students and attends all the school’s special functions. “He doesn’t need to teach, but he’s very loyal to the school.”

Sounds like just the kind of guy you’d want around in a crisis—assuming there is one, a point Sims isn’t willing to concede.

“The Supreme Court has been rendering controversial decisions for its entire history,” Sims said. “People object to particular decisions, but in general, we accept the process. This is our process. After the 2000 election, there were many who said the Supreme Court would never be respected again; this was an unforgivable decision, the election’s been stolen, nothing like this has ever happened in our history. Today, the same people, in terms of these detention cases, are mostly saying thank heaven we’ve got the Supreme Court to stand up to the administration, protect the separation of powers and defend the rule of law.”

It’s something to think about this Fourth of July, the last we’ll spend with George W. Bush as commander in chief. The Constitution didn’t stop working because the Bush administration chose to ignore it for the past seven years. Elections were not put on hold. Congress and the Supreme Court are on the case, and come November, American voters will do what they’ve always done when some tinhorn potentate threatens their liberty.

They’ll throw the bastard out.