“It is strange desire to seek Power and to lose Liberty”

One of the issues facing Barack Obama immediately upon his assumption of the presidency is the imperial state in which the Bush/Cheney administration will leave the office.  Under Bush and Cheney, the Executive Branch unabashedly accrued unto itself unprecedented power.

Under the right-wing radicals’ view of the rights of the Executive in times of extraordinary crisis, and using the attacks of 9/11 as substantiation for the existence of an extraordinary crisis, the Executive Branch has interpreted laws in accordance with the Bush/Cheney political agenda.  It has bypassed the checks and balances built into The Constitution by bending the enactment of laws to suit the desires of the Executive with an unprecedented number of presidential signing statements.  And the Whitehouse has determined, unilaterally, that the United States is not bound by international law.

Under the Bush administration, the power of the Congress has withered substantially.  Historically, there has almost always been an on-going tug-of-war between the Executive and Legislative branches.  In 1951, the 22nd Amendment, which limited future presidents to two terms in office, was ratified in a move by Congress to recoup some of the power it had lost to FDR.  During his twelve years as President, Roosevelt aggressively asserted presidential prerogative to deal with both the Depression and World War II.  His internment of Japanese-Americans based on the fear of terrorism is often cited as a precedent for the current holding of foreign nationals in Guantánamo Bay without access to a legitimate legal system.

Harry Truman urged the United Nations to intervene in the Korean conflict and dispatched troops to Korea without consulting Congress.

During the ’50s and ’60s, the Cold War tended to shift the balance of power back to the executive, until the Nixon Watergate debacle.  Following Nixon’s resignation, backlash to both Watergate and Vietnam swung the balance of authority back to Congress.  But Congress again relinquished much of the authority it had recaptured during the Carter and Ford administrations when Ronald Reagan vigorously pursued an ambitious agenda of massive tax cuts and an escalation of America’s global struggle against Communism.

The impeachment of Bill Clinton again tipped the scales of power in Congress’ favor, and, by the time Clinton finished his second term, many experts expected Congress would hold the upper hand for years to come.

As it turned out, the power of the President achieved monumental heights under George Bush, primarily through the administration’s invocation of national security and promulgation of the war on terror.  After 9/11, no one in the Congress wanted to be seen as being weak on terrorism and Bush used this fear to his advantage by labeling anyone who disagreed with him as such.

During the Bush administration, the Executive has claimed the authority to deny captured combatants, including both U.S. citizens and foreign nationals, such basic due-process rights as access to a lawyer.  It created a detention facility in Guantánamo Bay and declared it was outside the jurisdiction of the federal courts.  Then, for the prisoners of Gitmo, the administration threw out U.S. law, ignored the Geneva Conventions and discarded the Uniform Code of Military Justice as it put Guantánamo under a renegade legal system of the Bush administration’s own making, without any input from Congress.

To support these actions, members of the Bush administration, led by the Vice President’s chief legal council, David Addington, argued that the President’s commander-in-chief powers gave him the authority to violate America’s laws and treaties, including the Geneva Conventions.  As a result of Addington’s activities in shaping the Bush administration’s imperial attitude toward the power of the Executive, U.S. News and World Report labeled Addington “the most powerful man you’ve never heard of.”

Congress’ surrender of its authority during the Bush years was the result of both a highly loyal Republican majority and the fact that many of the actions the administration undertook after 9/11 - like the rendition of suspected terrorists to “ghost prisons” in foreign countries and the warrantless wiretapping of American citizens - were kept secret from Congress, making oversight impossible.  The administration also did everything it could to block unwanted disclosures about its policies, routinely invoking the formerly obscure “state-secrets privilege” to avoid revealing details of its treatment of enemy combatants.

Finally, in the fall of 2005, a year and a half after the scandal of Abu Ghraib became public, Congress appeared, on the surface, to regain some backbone when it passed a piece of legislation that was intended to limit the president’s wartime authority - the Military Commissions Act of 2006, the so-called “torture bill.”

But the truth is that this bill ended up giving George W. Bush exactly what he wanted in his unfocused “war on terror.”  When he signed into law the Military Commissions Act of 2006, Bush made it legal for the CIA to continue operating torture facilities in undisclosed, foreign countries, and for the writ of habeas corpus to be suspended for individuals who were designated “enemy combatants” against the U.S. (Designated by whom?  That question remained unanswered.)  The law also established “military tribunals that would allow some use of evidence obtained by coercion [that is, torture]…”

Senator Lindsey Graham (R-SC) has said, “The Congress was intimidated after 9/11.  People were afraid to get in the way of a strong executive who was talking about suppressing a vicious enemy, and we were AWOL for a while.  We should have been more aggressive after 9/11 in working with the executive to find collaboration, and I think the fact that we weren’t probably hurt the country.  I wish I had spoken out sooner and louder.”

In June 2006 the Supreme Court ruled in Hamdan v. Rumsfeld that the Geneva Conventions were applicable to America’s conflict with Al Qaeda.  But the White House argued that the Conventions’ prohibition against “outrages upon personal dignity” was too sweeping and placed too many restrictions on the CIA’s methods of interrogation.  To this date, the detainees in Guantánamo have yet to be accorded the full protections of the Geneva Conventions.

In retrospect, it is highly probably that after 9/11, even without the cadre of administration personnel, headed by Cheney and Addington, that was bent on increasing the power of the Executive, the balance of power would have begun to shift from Congress to the President.  Alexander Hamilton wrote, “It is of the nature of war to increase the executive at the expense of the legislative authority.”  And Hamilton was, undoubtedly, referring to conventional warfare rather than terrorism.  Even without the sinister machinations of Cheney and Addington, one could expect the President to exert imperialistic influence over U.S. policies.

The issue to which Obama will have to address himself is that, given the extent to which Congress abdicated its rightful place in the system of checks and balances, will his presidency seek to retain the level of power which has accrued to the Executive during the Bush administration, or will he work with his party in both houses of Congress to restore the balance of power to which we, the people, are entitled?