The seeming irrationality behind the George W. Bush administration’s "against the grain" (and the law) policies on torture, warrantless domestic surveillance, and now notification of Congress about CIA covert operations was not irrational at all. Most experts say that torture is counterproductive because the subject will tell the interrogator what he or she wants to hear to stop the pain and because many military people say that it merely revs up the opposition, gives them no incentive to surrender, and gives them every incentive to torture U.S. military personnel. Yet in the face of this mountain of authoritative opinion and the policy’s clear violation of international law and a U.S. criminal statute against torture, the Bush administration gleefully did it anyway.
The 1978 Foreign Intelligence Surveillance Act (FISA) clearly prohibited surveillance in the United States without a court-approved warrant and explicitly stated that it was the only law governing that practice. The Bush administration, in the wake of 9/11, made no effort to get a likely willing Congress to change the already flexible law. After all, if surveillance had been urgently needed to stop a terrorist attack, the secret and pro-security court could have issued the warrant after the fact. But the Bush administration strangely chose to flagrantly violate the law and Fourth Amendment to the Constitution to conduct domestic warrantless searches anyway.
Most recently, it has been revealed that Vice President Dick Cheney told the CIA to violate a law requiring prompt disclosure of even anticipated covert operations. The red herring that Republicans are now trying to stand by in defense of the uncharacteristically silent Cheney — that the executive branch must guard intelligence sources and methods — could apply to a particular assassination attempt but not the existence of the entire program over a seven-year period. Amazingly, Vice President Cheney — not even the president — decided to knowingly and affirmatively disregard the law.
Are these merely examples of Cheney’s or Bush’s arrogance? I suppose arrogance plays a part, but to paraphrase Rahm Emanuel, Barack Obama’s Chief of Staff, no crisis should go unexploited. Pundits galore, including this one, have railed against the Bush administration for cynically using the tragedy of 9/11 to invade Iraq. But fewer have noticed an even worse legacy of the Bush administration than the Iraqi quagmire.
What could be worse than killing U.S. service people and innocent Iraqis? The unitary theory of the executive, that’s what.
Dick Cheney came into office believing that executive power had been excessively eroded during the Vietnam and Watergate years. Few reputable scholars believe this nonsense. Most presidential scholars have concluded that the executive branch has grown in power vis-à-vis the other governmental branches since the turn of the 20th century, but really got boosted to an "imperial presidency" during the Cold War from the Truman presidency onward. This development is a far cry from the legislative-dominated system that the nation’s founders and the Constitution envisioned. The slight rollback of executive power during Vietnam and Watergate was only a momentary pause as the executive juggernaut rolled forth up to the Bush administration.
Cheney’s advocacy of the unitary theory, and evidently convincing his self-interested boss to buy into it too, meant that the administration believed that it could use broadly construed commander-in-chief powers — another anathema to the founders — to ignore congressionally passed laws during "wartime." In dictatorships, we call this "rule by decree." So the administration’s willful violation of laws had the more sinister purpose and effect of establishing a "hyper-imperial presidency." This is the single most important thing that the Bush administration did in office and the worst. We can already see that in the Obama and probably future administrations, executive self-restraint will be much harder in the face of the temptations of this more powerful inherited office, which will be based on the Bush-era precedents. Fear for the republic.