Right wing conspiracy: the unitary executive theory

Selected excerpts from "King George" by Tom Engelhardt in Salon.

The "cabal," as Lawrence Wilkerson, Colin Powell's chief of staff at the State Department, has called Dick Cheney, Donald Rumsfeld and various of their neocon-ish pals, stewed over this for years, along with a group of lawyers who were prepared, once the moment came, to give a sheen of legality to any presidential act. The group of them used the post-9/11 moment to launch a wholesale campaign to recapture the "lost" powers of the imperial presidency, attempting not, as in the case of Nixon, to create an alternate national security apparatus but to purge and capture the existing one for their private purposes. Under George Bush, Dick Cheney and their assorted advisors, acolytes and zealots, a virtual cult of unconstrained presidential power has been constructed, centered around the figure of Bush himself. While much has been made of feverish Christian fundamentalist support for the president, the real religious fervor in this administration has been almost singularly focused on the quite un-Christian attribute of total earthly power. Typical of the fierce ideologues and cultists now in the White House is Cheney's new chief of staff, David Addington. The Washington Post's Dana Milbank described him this way back in 2004 (when he was still Cheney's "top lawyer"):

"[A] principal author of the White House memo justifying torture of terrorism suspects ... a prime advocate of arguments supporting the holding of terrorism suspects without access to courts[,] Addington also led the fight with Congress and environmentalists over access to information about corporations that advised the White House on energy policy. He was instrumental in the series of fights with the Sept. 11 commission and its requests for information ... Even in a White House known for its dedication to conservative philosophy, Addington is known as an ideologue, an adherent of an obscure philosophy called the unitary executive theory that favors an extraordinarily powerful president."

For these cultists of an all-powerful presidency, the holy war, the "crusade" to be embarked upon was, above all, aimed at creating a president accountable to no one, overseen by no one, and restricted by no other force or power in his will to act as he saw fit. And so, in this White House, all roads have led back to one issue: how to press ever harder at the weakening boundaries of presidential power. This is why, when critics concentrate on any specific issue or set of administration acts, no matter how egregious or significant, they invariably miss the point. The issue, it turns out, is never primarily -- to take just two areas of potentially illegal administration activity -- torture or warrantless surveillance. Though each of them had value and importance to top administration officials, they were nonetheless primarily the means to an end.

This is why the announcement of (and definition of) the "global war on terror" almost immediately after the 9/11 attacks was so important. It was to be a "war" without end. No one ever attempted to define what "victory" might actually consist of, though we were assured that the war itself would, like the Cold War, last generations. Even the recent sudden presidential announcement that we will now settle only for "complete victory" in Iraq is, in this context, a distinctly limited goal because Iraq has already been defined as but a single "theater" (though a "central" one) in a larger war on terror. A war without end, of course, left the president as a commander in chief without end, and it was in such a guise that the acolytes of that "obscure philosophy" of total presidential power planned to claim their "inherent" constitutional right to do essentially anything.

Sooner or later, the hubris of taking all such powers up as your own is likely to prove overwhelming and then many things begin to slip out of control. Consider the developing scandal over the National Security Agency's wiretapping and surveillance on presidential order and without the necessary (and easily obtained) FISA court warrants. In this case, the president has proudly admitted to everything. He has essentially said: I did it. I did it many times over. We are continuing to do it now. I would do it again. ("I've reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for so long as our nation is -- for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens.") In the process, however, he has been caught in a curious, potentially devastating presidential lie, now being used against him by Democratic pols and other critics.

While in Buffalo, N.Y., for his reelection campaign in April 2004, in one of those chatty "conversations" -- this one about the Patriot Act -- that he had with various well-vetted groups of voters, the president said the following:

"There are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution."

By that time, as he has since admitted, the president had not only ordered the warrantless NSA wiretapping and surveillance program and recommitted to it many times over, despite resistance from officials in the Justice Department and even, possibly, from then-Attorney General John Ashcroft, but had been deeply, intimately involved in it. (No desire for classic presidential "plausible deniability" can be found here.) So this, as many critics have pointed out, was a lie. But what's more interesting -- and less noted -- is that it was a lie of choice. He clearly did not make the statement on the spur of the moment or in response to media questioning (despite the claims in some reports). He wasn't even "in conversation" in any normal sense. He was simply onstage expounding in a prepared fashion to an audience of citizens. So it was a lie that, given the nature of the event (and you can check it out yourself online), had to be preplanned. It was a lie told with forethought, in full knowledge of the actual situation, and designed to deceive the American people about the nature of what this administration was doing. And it wasn't even a lie the president was in any way forced to commit. No one had asked. It was a voluntary act of deception. Now, he is claiming that these comments were meant to be "limited" to the Patriot Act as the NSA spying program he launched was "limited" to only a few Americans -- both surely absurd claims. ("I was talking about roving wiretaps, I believe, involved in the Patriot Act. This is different from the N.S.A. program. The N.S.A. program is a necessary program. I was elected to protect the American people from harm. And on Sept. 11, 2001, our nation was attacked. And after that day, I vowed to use all the resources at my disposal, within the law, to protect the American people, which is what I have been doing, and will continue to do.")

In other words, by his own definition of what is "legal" based on that "obscure philosophy" (and with the concordance of a chorus of in-house lawyers), but not on any otherwise accepted definition of how our Constitution is supposed to work, the president has admitted to something that, on the face of it, seems to be an impeachable act -- and he has been caught as well in the willful further act of lying to the American people about his course of action. Here, however, is where -- though so many of the issues of the moment may bring the Nixon era to mind -- things have changed considerably. Our domestic politics are now far more conservative; Congress is in the hands of Republicans, many of whom share the president's fervor for unconstrained party as well as presidential power; and the will to impeach is, as yet, hardly in sight.

Comments

[Bill]

Don't confuse the unitary executive with imperialism or dictatorship. Unitarian powers are essential to a strong executive branch. What we're seeing is a very bad president, owned by ultra right zealots, abuse those important powers. They abuse all executive powers, and when threatened by law they use lawyers to say it isn't really law. Don't blame the power, blame the abuse.

Separation of powers was essential when we were a democracy, and unitarian powers are essential to a strong Executive branch. If electronic voting machines somehow went down in the next election, real votes were counted, and a Democrat was elected to office, how would he defend himself against a hateful Congress who considered him an enemy to be crushed. Clinton used the powers of the unitarian executive - to the disgust of the neocons.

Separate the American democratic system from the abusive neocon overthrow. Protect checks and balances, even if it seems to hurt. Hate the destruction of our democracy, but defend what is left of the Constitution, the Bill of Rights, and a moral, ethical society. We may get a chance one day to fight back and rebuild a respectable democracy. We may need unitarian executive powers.

[mattcalarco]

Jodi,

excellent posts lately as usual! I really liked the one on Zizek, Agamben, and Paul. I haven't read _Puppet_ all that carefully, but it's on my list.

As for this post, I think it relates closely to the issues you posed in that other post. I'm not sure how you (Jodi) would respond to Bill's post, but the concern I would have is that it is not altogether clear to me that the unitary executive is a necessary part of what you (Bill) call a "moral, ethical society." In fact, it might be antithetical to it. Certainly any sovereign power structure has the (virtual) possibility of becoming a dictatorship, and checks and balances are necessary for preventing such excesses. But why *must* we stick with a model of (sovereign-based) politics that constantly runs this risk?

[Jodi]

Matt--I agree with your response to Bill. If our government is to rely on constitutional separation of powers, if that basic idea is worthwhile, then the power of the executive has to be checked--what's weird to me is that I thought this was done after Nixon. So, I was asleep at the wheel on this score under Clinton.

There is something appealling about absolute power or 'enough' power to get one's agenda through. I like that very much. But that means that I would be advocating something like a dictatorship I agree with (the rule of the party of Jodi). So, I can imagine a revolution where this party takes over--and I wouldn't want to share power with any opposition at all.
So, I want power for me--not them, the bad guys. If this won't happen or isn't likely in the near future, then it's suicidal madness to advocate a form of power that lets the bad guys get stronger and stronger and stronger.

[Jodi]

Oh, Matt, thanks for your kind words!

[Virgil Johnson]

It seems as though many are missing an obvious point on this subject. The point is - the court(FISA)which was assigned this task is not cumbersom in any form - you could look at it like a monkey with a rubber stamp. In fact, all the action necessary to execute this clandestined activity can be done before addressing the court - after doing what is necessary to stop the so-called terrorists.

If this is true it brings us to another possibility - can these acts of domestic spying not stand the scrutiny of the court? Are they obviously illegal - the wrong use of the power, etc? This can be the ONLY reason why the court was not informed before or AFTER the act (which can be a number of days) - which is an option of the spying official.

In other words, this administration was abusing the power. If the court was never informed before or after the act, what has this administration been doing? Are they doing something that would even alarm this trained monkey with a stamp (FISA)? The possibilities are both endless and ominous.

[warisforsuckers]

some "good" posts, some very scary posts...
can't believe even knowledgeable people are willing to trade democracy for dictatorship if it's "their dictatorship" (call it unitary executive if you want but if there is a disproportionate holding of power by the executive branch it mirrors very much the structure of totalitarian government)
what we need in America (and what the future will inevitably bring) is more separation of powers - more branches of government (what the hell, say 8, or 11 branches)
that will balance out the exponential growth and accelerated consolidation (nsa, dod, "homeland security") of a centralizing executive (the very antithesis of democracy)

state power is an old, destructive idea... corporate power is becoming an old, destructive idea, it's time for new, even more individualistic bases of power (yet to be created - have fun) that at the same time maintain a balance between all people, and on purpose because we realize the dissipation of power as a benefit and not a 'bad thing' (as if we're losing power by spreading it - it actually accelerates the net gain)