The unitary executive theory during the Bush-Cheney presidency

Unitary Executive

The notion of the powers of "unitary executive" within the context of the Constitution of the United States simply put is: that the executive powers within the nation are vested with the President of the United States. As the chief executive of the executive branch of the nation, the Constitution gives the President the right to act on his or her own within the purview of the Constitution. Some have averred that it means that the Constitutional values should be upheld and not violated; indeed the unitary executive powers should serve to strengthen the constitution. The question that will be answered in this essay is how the Bush/Cheney presidency in two terms ranging from the years 2001 to 2001 has embodied this theory. Indeed, the overwhelming literature indicates that the George W. Bush overreached in his interpretation of the theory of unitary executive and interpreted the Constitution too aggressively. (Van Bergen 2006) This essay will explore not only the legal and constitutional implications and opinion but also how the media portrayed the ex-President's aggression -- a media that was largely not favorable to the President. The other side of the argument in support of the President would support the notion that the events of September 11, 2001 were extraordinary and unprecedented, and, as such, called for the interpretation of the President's prerogative to enforce the unitary executive as largely justified.

The two issues which are raised when President Bush is criticized is support and justification for torture of those suspected as involved in terrorist acts of 9-11 and after. One form of torture that came under close scrutiny was water-boarding. The other was the re-interpretation of the National Defense Act to permit the wiretapping and other electronic surveillance of relevant appliances of private U.S. citizens in violation of FISA regulations. (Lazarus 2006) These two issues will be explored in detail. Also will be mentioned the extraordinarily high number of signing statements created by George W. Bush.

Before one delves into an exploration of the Bush/Cheney embodiment of the interpretation of the unitary executive, it would be important to explore the historical precedence of why unitary executive was introduced into the U.S. Constitution. During the birth of the United States as a nation, despite a few instances of political wrangling, there was no doubt that the first leader of the country would be George Washington. While we take for granted that the United States is a constitutional democratic republic, this notion was not obvious in 1776. (McCullough 2005)

There were several visions of how Washington's role as the father of the nation would be. Since expats from England and other parts of Europe formed the first citizens of the country when it ceased to be a colony of the England, some held the view that the United States could be created as a monarchy and there was a move to crown George Washington king. While this notion was immediately unpopular and Washington's role was established as the President, there arose a decision as what his powers as chief executive would be. Giving the President sole power would be tantamount to a coronation. There was a faction that believed that the executive powers ought to be shared by a committee. But budding constitutionalist James Madison saw it fit to vest the executive powers in the hands of the President. (Squire 1997) the establishments of the Congress and the Courts of Law with their own intrinsic powers ensured that as in all democratic republics, a system of checks and balances was introduced. The question, within the context of this essay is: did Bush and Cheney violate the trust of the people and sought to demean the constitution by overreaching in their interpretation of the power of unitary executive?

The power of unitary executive is mentioned in Clause I of the Article Two of the United States Constitution. (Constitution 2009) to wit: The Executive Power shall be vested in a President of the United States of America. He shall hold his term during the next four Years, and, together with the Vice-President chosen for the same Term, be elected, as follow. The system of checks and balances comes in through Congress. The President is not allowed to make laws. The Congress makes laws; the President executes them; the Justice system interprets laws in keeping with the Constitution. The problems with overarching interpretations of the unitary executive arises when the President misinterprets or aggressively interprets a law -- often through the creation of a signing documents and overrides the opinions of the justice system in its interpretation.

Most of the criticism centers squarely on George W. Bush. But Richard (Dick) Cheney also comes in for a fair bit of criticism. The media (liberal and in overwhelming numbers supporters of Democratic candidates for election, and often at odds with the voting public, [of the last five presidents, three have been Republicans, Eisenhower was the last Republican candidate that the New York times endorsed for President]) often derided Bush as a light-weight and puppet who was manipulated by Dick Cheney, at-large strategist Karl Rove and once Chief of Staff of the White House Andrew Card. (Greenburg, Rosenberg and de Vogue 2008) There is some support for this claim. George W. Bush came to the fore as a Republican candidate as a successful two-term Governor of Texas, who, the first time around, defeated a popular and established incumbent Ann Richards. Also, given the weakness of Robert Dole, former senator for Kansas, during the election that led to William (Bill) Clinton's second term, there was no national level Republican candidate that could seriously challenge Vice-President Albert Gore. Strategically then, to support any perceived weakness on the part of George Bush, he chose Dick Cheney as his running mate -- and Vice President for the next eight years. Dick Cheney's role helped significantly. He brought gravitas to the ticket -- experience from having been a Washington insider: Congressman and Secretary of Defense that prosecuted one of the U.S. most successful wars -- the First Gulf War. George Bush could then claim to be the outsider in an election where being the establishment candidate was seen as a liability and not an asset to the ticket. The issue of Dick Cheney might seem unimportant to this issue, superficially, but in actual fact it is significant. Because Cheney's supposed unpopularity was tied to criticisms of George W. Bush. And all major policy decisions were supposed to have been vetted through Cheney before becoming public policy. In essence therefore, any criticisms leveled at Bush were known to have the unmistakable stamp of Cheney.

To set the stage for the criticisms of Bush as being overreaching, one must consider first the background. On September 11, 2001 two passenger jets hijacked by approximately 20 Muslim men flew into each of the two skyscrapers of New York's World Trade Center. A third plane flew into the Pentagon and killed almost 200 people working there. A fourth, presumably headed for the Capitol building in Washington, D.C., was brought down by the courageous efforts of its passengers, in a field in Pennsylvania. Both towers collapsed within a few minutes of each other about an hour and a half after they were hit. A total of about 3000 people lost their lives that day. Such an attack was unprecedented in U.S. history. Not since the Civil war was there bloodshed on the scale as happened on that ill-fated day in November. In the 20th century, the four major wars fought were the two World Wars, the Korean War and Vietnam War. Each was fought on foreign soil, Europe, the Pacific, the Koreas and Vietnam and Cambodia. These wars were against Axis hegemony, fascism and communism. The closest that war came to the U.S. was the attack on Pearl harbor by the Japanese air force towards the end of World War II. But there was never an attack generated by a foreign entity or an organization based on a religion and an ideology.

The results of the events of September 11, 2001, precipitated two major wars that are still going on. One was a war in Afghanistan against Al Qaeda. The second resulted in the deposing of Saddam Hussein (and his eventual execution). Supporters of Bush in his interpretation of his role as unitary executive believe that this is a war that is unlike any wars. That is because its boundaries are neither geographical nor physical. The fighters are ideologically driven and Islamic. They can be recruited from any nation. Their incentives are also driven by the fanatical devotion to their religion. Hence it is conceivable that there could be potential Islamic terrorists in the continental United States, as was discovered at a terrorist cell in Buffalo, in upstate New York. There was also the case of Jose Padilla, an unlikely supporter of Osama Bin Laden, who purported to engage in terrorist activities in the United States by creating a dirty bomb, a conventional bomb that was packed with radioactive waste.(Ripley 2002) There is also an increasing presence of Middle Eastern expats within the metropolitan Detroit and its suburbs. Bush genuinely, believed, according to his supporters that ideologically driven Islamic youth might perform terrorist's acts from within despite any efforts by the Transportation Safety Authorities to ensure that no terrorists came into the country from without.

This gave rise to the first critic of President Bush, invoking the American Defense Act to allow security officials to perform security related wire taps on telephones and electronic surveillance on computer activities of suspected terrorists. This was in direct violations of the FISA (Federal Intelligence Surveillance Act). The violations involved non-compliance with FISA. The FISA rule involves the ordering the surveillance of suspects only after such a surveillance is court-ordered. (Apuzzo 2007) the uniqueness of the FISA construct is that for security reasons the court does not have to be informed of the identity of the suspect who will be placed under surveillance. The Bush administration circumvented FISA by creating the TSP (Terrorist Surveillance Plan) which they used to perform electronic surveillance without going to the court -- secret or otherwise. One of the few incidents which illustrates overreaching by the Bush Administration involved acting Attorney General James Comey. James Comey was in the position of Attorney General temporarily for John Ashcroft. Realizing the potential illegality of the TSP, James Comey refused to allow TSP to go on. Andrew Card who disagreed with Comey and wanted to ensure that TSP went through ignored Comey and actually visited John Ashcroft in the intensive care unit of the hospital where he was recovering from surgery. Presumably, Card wanted to take advantage of the still quite ill Ashcroft who was sedated. Comey, realizing this, attempted to race Card to the hospital to get to Ashcroft first. Ashcroft, to his credit, despite his illness, sided with Comey and refused to sign on to TSP. The issue at hand the attempt at circumventing the system of checks and balances that is the cornerstone of a democratic republic. The only reason Bush and the White House pulled back on TSP is because the entire department of Justice threatened to resign. Bush's White House came under intense criticism for this overreach in his role as unitary executive

After the War on Terror in the wastelands of Afghanistan and then in Iraq resulted in the arrest of many Al Qaeda operatives and others from the Taliban in Afghanistan. One of the reasons why it is difficult to contain these operatives is because they have no geographical boundaries. It is conceivable that operatives might arise in the Islamic dominated countries in Africa, in the refugee slums of Palestine, in Indonesia, in Iran, Iraq other countries in the Middle East, some Islamic parts of the former Soviet Republic or even Hindu dominated India, which has seen its own share of terrorist activities. Indeed, all the terrorists from September 11 were either Egyptians or Saudi Arabian youth. All that is required is a need to help the Islamic cause against any threats from other religions or the West, the threats perceived or real. In large part, Osama Bin Laden remains at large because Islamic people see it as a privilege to provide this terrorist succor. Even Saddam Hussein was captured and his sons were identified in their hideouts and killed only because a close relative informed the U.S.-led allied forces of their whereabouts. Information had to be obtained from detainees at the Guantanamo Bay facilities in Cuba; conventional interrogation techniques were deemed clearly not sufficient. Therefore techniques such as water-boarding were resorted too. Water boarding is a technique has been used for many decades. The effects of water boarding are not permanent. The detainee is covered with a thick cloth which is then kept continuously wet. The person subjected to water boarded goes through the same discomfiture as when drowning. This fear of death which transcends the pain from torture (which some are trained to deal with) causes the people to provide the information sought. Al Qaeda operatives of course were in a chain of command that was significantly low. This means they needlessly underwent torture because they could not provide the information sought.

Critics of President Bush sought to get the detainees relief by identifying them the same status as prisoners within the U.S. Penal System since they were on U.S. soil. They were also identified as being covered under the Geneva Convention in regards dealing with prisoners of war. But the White House retorted by indicating that since the detainees could not be protected under the Geneva Convention because they could not be identified as soldiers belonging to any one country. Indeed, they could not be identified even as soldiers. (Shane, Johnston and Risen 2007) More importantly however, crucial and unusual punishment, such as water boarding was illegal under U.S. law irrespective of who was being subjected to that punishment. Water boarding however, continued and the Bush White House supported the notion indicating that this was justified given the circumstances. The U.S. And indeed, the rest of the world were fighting the kind of war that had never been fought before. This circumventing of the U.S. law to permit this was considered an abuse of the unitary executive powers. The same arguments were furthered by the Bush White House, which in a losing effort, sought to defend certain undisciplined members of the U.S. armed forces at the Abu Ghraib prisons, where they used humiliating techniques against the prisoners.