Frederick A.O. Schwarz, Jr., and Aziz Huq
The American Lawyer
02–01–2007
Before 9/11, who would have imagined that the vice president of the United States would publicly endorse the use of waterboarding in interrogating suspects as a “no-brainer”? Or that the administration would exploit the political opportunity of a tight election to ram immunity for government torturers through Congress? Who would have imagined that America would be condemned around the world for “disappearing” suspects, sweeping them off into secret prisons and brutal interrogations? That, only five years after 9/11, the sympathy expressed and felt around the world for America’s tragic losses would have frayed? Or that Guantnamo and Abu Ghraib would become, for much of the world, more potent symbols of America than the Statue of Liberty?
It has not been terrorism alone that has changed the nation, but our response. A telltale sign: At one time, the New York Daily News’s recent revelation that the president asserts open-ended power to read Americans’ mail would have been a shock. Today, it’s almost old hat. What once would have been dismissed as outlandish speculation is today the inevitable consequence of an executive branch that purports to stand above the checks and balances of the Constitution.
The president asserts the power once claimed by British kings to set aside the laws of the land. He uses that power to ignore laws banning torture and warrantless wiretapping. But this monarchical presidency makes the nation no safer and breaks faith with foundational constitutional traditions.
The theory of a monarchical presidency, decried by The New York Times last month as a return to the “imperial presidency” condemned by Arthur Schlesinger, Jr., during the Nixon years, has been used to underwrite precisely those policies that the American people would not countenance as open laws. The president thus claims unilateral power to use interrogation practices that amount to torture, to consign citizens to indefinite detention, and to sift through Americans’ mail and telephone calls unchecked by any judge.
Contrary to popular belief, though, the monarchical presidency is not a response to 9/11, but a long-nursed ideological project of a small clique. Vice President Richard Cheney drew from Watergate and its aftermath the lesson that checks on an imperial presidency should be cast aside. In 1987, in the minority report on the Iran-contra scandals, which he authored, Cheney made a remarkable call for “monarchical notions of prerogatives for the presidency.” Nearly 15 years later, as the nation reeled from 9/11, Cheney and his allies seized their chance.
Neither the original understanding of the Constitution nor present day need, however, licenses the unprecedented concentration of power in one branch of government sought by the administration. Leave aside for the moment the fact that a theory of unchecked presidential power breaks faith with our deepest constitutional traditions of limited government under law. It is also dangerously ill-suited to making counterterrorism policy.
Consider first the practical consequences of the policies justified by this theory of executive power, such as the use of coercive interrogation and “extraordinary rendition” to torture in Syria or Egypt. These practices have yielded international opprobrium. “The world,” former secretary of State Colin Powell has warned, “is beginning to doubt the moral basis of our fight against terrorism.”
This reputational hit has immense consequences for the nation’s safety. As surveys conducted by the Pew Global Attitudes Project and others have shown, attitudes toward the United States in Muslim countries-the primary recruiting grounds for Al Qaeda-have nosedived. As former Defense secretary Donald Rumsfeld lucidly explained, it does us no good if our counterterrorism policies create more terrorists than they stop. Powerful symbols of American hypocrisy, including Guantnamo and Abu Ghraib, the bitter fruit of monarchical presidency theory, do precisely this.
Hypocrisy takes its toll among our allies, too. The British House of Lords, the highest court in the land of our closest ally, noted recently in relation to American counterterrorism policy that “the use of torture is dishonorable. It corrupts and degrades the state that uses it and the legal system which accepts it.” Such official condemnation not only signals a much deeper public disdain, but in practical terms makes it more difficult for Prime Minister Tony Blair and company to cooperate with White House counterparts.
Executive power mavens often argue that the president and his colleagues have better information than the rest of us, and that therefore they should be trusted to make decisions. But policies that flow from presidential unilateralism too often lead to dramatically flawed decisions based on wildly wrong facts or flights of ideological fancy.
Drumming up support for the Iraq war, the president, vice president, Secretary Powell, and Secretary Rumsfeld claimed that Iraq and Al Qaeda were linked. The evidence, Rumsfeld told the nation, was “bulletproof.” But the evidence came from a senior Al Qaeda operative who had been “rendered” to Egypt for torture. The Defense Intelligence Agency later advised the administration that the suspect’s statement was unreliable. Indeed, we know now that it was untrue.
Executive unilateralism thus allowed the administration to use tools such as coercive interrogation and rendition to torture to generate the evidence it wanted. Then the executive branch used the same powers to limit public and congressional scrutiny of its claims.
Unchecked executive power, in other words, is based on a false assumption that an unchecked executive will govern judiciously. It assumes that bureaucrats and politicians, freed from the need to describe and account for their conduct, will be effective and just. History abundantly proves this wrong. Power without accountability lurches too easily into loss of innocent lives.
The nation’s Founding Fathers were well aware of that aspect of human nature, that even the best-intentioned men and women can be seduced into error by the allure of being the “decider” in a moment of high tension. It should not then be surprising, then, that the theory that the president can break the law flies in the face of America’s founding covenant to be a government of laws, not men. The Revolution was fought to rid America of monarchical powers of the sort the president, vice president, and John Yoo have sought to resurrect.
The language and structure of the Constitution makes this clear. In contrast to the terse offices allotted the president, the Congress is given the lion’s share of power, including power over military matters. The Constitution even authorizes Congress to “make Rules for Government and Regulation of the land and naval Forces.” The debates at the constitutional convention and in the state ratifying conventions that followed also undercut the current administration’s position. Perhaps most harmful to the administration’s claims is Alexander Hamilton’s sixty-ninth Federalist Paper, which sketches an executive with limited authority, neither omnipotent nor invulnerable to check by judiciary and legislature.
Mr. Yoo has argued that the framers of the Constitution silently intended to adopt the “unwritten British Constitution’s allocation of powers between Parliament and Crown,” giving presidents the British king’s powers to cast aside congressional laws. Setting aside the small problem that the Revolution repudiated the abusive structures of royal rule, the British monarchy in fact had been stripped of power to “suspend” parliamentary laws in the Glorious Revolution of 1688-almost exactly 100 years before the constitutional convention.
Nor has the U.S. Supreme Court, starting with Chief Justice John Marshall, been hospitable to resurrection of monarchical power in America. From Marshall’s time through to Justice Robert Jackson’s canonical opinion on presidential power in the steel seizure case (endorsed as “very important” by Chief Justice John Roberts, Jr., in his Senate confirmation hearing), there has been no doubt, at least in the high court, that the founders rejected the model of the British king.
The administration lawyers who concluded that the Constitution gave us a king were relying on internal processes of deliberation and debate that failed: Pivotal memos failed to mention key Supreme Court precedent. Political appointees did not seek insight from seasoned professionals in the military and the State Department. Nor did the legal analysis account for its inevitable consequences-the handicapping of America’s moral leadership in the world.
The Constitution’s structure of checks and balances, however, ought not to rest on the shoulders of executive branch lawyers alone. It is up to all three branches of government to play their constitutionally assigned role. The Supreme Court has risen to the task in decisions from 2004 such as Rasul v. Bush and Hamdi v. Rumsfeld. In June 2006, it delivered a clear rebuke to the administration in Hamdan v. Rumsfeld, which invalidated the military commission system established by a November 2001 unilateral presidential fiat.
But the response to Hamdan shows Congress’s performance still leaves much to be desired. In September 2006, President George Bush and his allies on Capitol Hill stampeded the Military Commissions Act into law. The legislation delegated to the executive unwarranted powers to detain and interrogate suspects outside the rule of law. Rather than acting on the basis of considered debate and a full understanding of the facts, legislators fell over themselves to sign off on a “tough on terror” agenda that broke with our nation’s historically enshrined liberties, most importantly habeas corpus. Congress may have the power and responsibility to rein in an overweening executive branch. But that doesn’t mean it can or will act wisely.
Throughout history, the task of keeping the republic is not one for just the three branches of government, but for “We the People of the United States.”
The framers knew that maintaining the Constitution’s system of checks and balances was not easy. Stepping into Philadelphia sunlight in 1787, Benjamin Franklin was asked by an eager passerby what he and his fellow constitutional convention delegates had wrought-"a republic or a monarchy”? “A republic,” replied Franklin, “if you can keep it.”
Frederick A.O. (“Fritz”) Schwarz, Jr., and Aziz Huq are coauthors of Unchecked and Unbalanced: Presidential Power in a Time of Terror, to be published by The New Press in March. Both now work at the Brennan Center for Justice at the New York University School of Law. Schwarz was chief counsel for the Church Committee, a U.S. Senate committee that investigated intelligence gathering operations. He was also chief lawyer for New York, and for many years, a partner at Cravath, Swaine & Moore. Huq is a 2006 Carnegie Scholars Fellow and clerked at the U.S. Supreme Court.