Bush's 'Apex' of Unlimited Power
By Nat Parry
June 15, 2004
George W. Bush is asserting presidential authority that in theory covers the lives and liberties of everyone, everywhere, U.S. citizens and foreigners alike, a claim of power so sweeping that it permits him to imprison, torture and kill at his choice without legal constraint anywhere in the world.
Bush’s belief in his unlimited authority is implicit in a series of administration legal opinions. They include Bush’s declaration that he has the power to arrest and indefinitely imprison anyone he deems an “enemy combatant,” no need for charges or a trial. Bush’s lawyers also are claiming for him the right to order the torturing of anyone in U.S. government custody and the power to kill his international enemies whenever he judges that necessary, even if civilian bystanders also must die.
It’s not so much that Bush is saying that he is above the law or even that he – regally – is the law. He is claiming that no law can infringe on his inherent power to do whatever he wishes as commander in chief. It is a declaration of personal authority unprecedented in scope and contemptuous of American constitutional checks and balances. Ultimately, this Bush Doctrine of Presidential Power is what’s at stake in the Nov. 2 elections.
While elements of Bush’s grand self-vision have been known for months, the full picture has only slowly come into focus. In June 2002, Bush ordered U.S. citizen Jose Padilla detained indefinitely, incommunicado, without formal charges and without constitutional rights, simply on Bush’s assertion that the alleged al-Qaeda operative was an “enemy combatant.”
In August 2002, the Justice Department asserted that international laws against torture don't apply to interrogations of al-Qaeda suspects. Around the same time, White House lawyers asserted that the President has the right to wage war without authorization from Congress. And during the early days of the U.S. invasion of Iraq in 2003, Bush authorized the bombings of civilian targets, including a restaurant, merely on the belief that Iraqi dictator Saddam Hussein or other Iraqi leaders might be there.
The latest piece of the picture became apparent in Attorney General John Ashcroft’s appearance before the Senate Judiciary Committee on June 8, when Ashcroft refused to show Congress the administration’s memos arguing that Bush has the inherent authority to order torture whenever he deems that necessary.
Torture Memo
The Wall Street Journal, which obtained a draft of the torture memo, summarized its contents this way: “The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture.”
The Journal also reported that “a military lawyer who helped prepare the report said that political appointees heading the working group sought to assign to the president virtually unlimited authority on matters of torture – to assert ‘presidential power at its absolute apex,’ the lawyer said.” [WSJ, June 7, 2004]
Though administration lawyers have written legal opinions asserting Bush’s unfettered powers, the concept of “presidential power at its absolute apex” isn’t really about law; it’s about lawlessness. It’s about all power invested in the hands of one man with the law made irrelevant in the wake of the Sept. 11, 2001, terror attacks. Essentially Bush is saying that the murderous attacks have required the de facto partial suspension of the U.S. Constitution and the abrogation of international law.
While the U.S. Supreme Court and the U.S. Congress could theoretically repudiate this Bush Doctrine, it is not clear whether Bush would respect any commands from the two other constitutional branches. It’s also conceivable that the Supreme Court and Congress – given their conservative majorities – will either accede to Bush’s theories about his own powers or duck the central issues, allowing Bush to continue his activities for the foreseeable future.
That was the significance of Ashcroft’s haughty refusal to give Congress the torture memo. Ashcroft rebuffed the request from the Senate Judiciary Committee without even asserting a legal rationale, such as the concept of “executive privilege.” His refusal amounted to telling the Congress “I-don’t-wanna.” Though angry Democratic senators warned Ashcroft that he could be charged with contempt of Congress, the chances of such charges in the Republican-controlled legislature are extremely remote.
The real challenge against Bush is more likely to come from anonymous federal bureaucrats who have been so shocked at Bush’s decisions to cast aside traditional constitutional and humanitarian standards that they are leaking details of the secret policies to the news media, which itself has performed more professionally in reporting this news than it has in several years.
Word Games
Still, the media analysis of this Bush Doctrine has focused on its parts, not its larger meaning. Putting those pieces together creates a troubling mosaic of a leader who disdains legal limits, trusts his personal instincts and considers himself guided by the Almighty.
In his “gut” decision-making, Bush has assumed power over life and death for foreign opponents as well as civilians who get in the way. The New York Times, for instance, reported on June 13 that senior U.S. military and intelligence officials have disclosed that Bush’s orders to attack Iraq led to “many more failed airstrikes on a far broader array of senior Iraqi leaders during the early days of the war last year than has previously been acknowledged and some caused significant civilian casualties.” The Times reported that all 50 airstrikes were unsuccessful in killing the targeted Iraqi leaders, but did inflict dozens of civilian casualties.
“The broad scope of the campaign and its failures, along with the civilian casualties, have not been acknowledged by the Bush administration,” the Times reported.
One of the attacks aimed at killing Saddam Hussein instead blew up patrons at a Baghdad restaurant, killing 14 civilians, including seven children. One mother collapsed when rescue workers pulled the severed head of her daughter out of the rubble. Bush has offered no apology for the carnage.
During the Iraq invasion, the U.S. news media and political Establishment raised few questions about the killing of Iraqi civilians, presumably believing that Bush had the right to target Iraqi leaders because they supposedly were threatening the United States with weapons of mass destruction, the principal rationale cited by Bush for the invasion.
But the failure to find the alleged stockpiles of unconventional weapons – after having ignored the United Nations appeals for more time to search for the WMD – suggests that Bush’s self-defense argument was a bogus pretext for war. In other words, Bush was asserting a right to kill foreign leaders and civilians even if their countries were not threatening the United States. Their deaths could be ordered simply on Bush’s say-so.
Bush did win passage of a war resolution from Congress in fall 2002, but his administration argued that he already possessed the necessary war-making authority without any action by Congress. Indeed, in retrospect, the war resolution a month before the November elections was probably more a political device to create Democratic divisions and win more Republican seats than a sincere recognition of the power to declare war that the Founding Fathers invested in the Legislature, not the Executive.
Beyond simply overriding laws, Bush has sought to unilaterally redefine their meanings. The torture memo, for instance, argues that torture is not torture if the brutality doesn’t cause “serious physical injury, such as organ failure, impairment of bodily function or even death,” or in the case of psychological abuse, if it doesn’t last “months or even years.”
White House assurances that Bush’s behavior is within the law must be taken with a grain of salt, since Bush’s view of the law is that he gets to define the terms and then he gets to decide if the law applies to him.
So, what should a listener make of White House spokesman Scott McClellan’s assurance that when prisoner interrogations are undertaken, “the President expects that we do so in a way that is consistent with our laws”? Does that mean “consistent” with Bush’s interpretation of the laws? Should there be any comfort from Ashcroft’s statement that he knows of no presidential order that would allow terror suspects to be tortured? Does an all-powerful President even have to express a decision in a formal order? Wouldn’t a presidential nod of the head be enough?
Coming to Light
The possibility of torture being approved by the White House was raised in disclosures of the March 2003 memorandum obtained by the Wall Street Journal. In it, administration lawyers offered legal doctrines “that could render specific conduct, otherwise criminal, not unlawful.”
They argued that the president, and anyone acting at the president's orders, are not bound by U.S. laws or international treaties prohibiting torture, asserting that the need for “obtaining intelligence vital to the protection of untold thousands of American citizens” supersedes any obligations the administration has under domestic or international law. [WSJ, June 7, 2004]
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