Evaluation of Bush Administration Assertions of Executive Branch Authority

By Marc Seltzer

Recently released documents (opens in PDF) show the extent to which the Bush administration took unprecedented power unto itself, exercising unfettered executive branch authority to conduct war inside the United States as well as abroad. Despite profound moral and Constitutional red flags, the Bush administration also sought, post-September 11, to conduct national security without oversight.

Based on the assertion of the president’s “independent, nonstatutory power to take military actions, domestic as well as foreign, if he determines such actions to be necessary to respond to the terrorist attacks upon the United States on September 11,” the administration conducted warrantless domestic surveillance and orchestrated extra-judicial detention and torture of prisoners — all within a cloak of secrecy.

As regarded through the eyes of his critics, Bush’s secrecy was an abuse of power. It went far beyond what was needed to protect military or strategic advantage, even in time of war, and hid unconstitutional and unlawful acts from review. Glenn Greenwald, writing in Salon, recently offered the observation that for eight years, “our Government secretly vested itself with the power to . . . create a whole regimen of secret laws that vested tyrannical, monarchical power in the President.” Speaking at a convention earlier this month, New Yorker contributor Seymour Hersh charged that “eight or nine neoconservatives took over our country.”

However, the administration and its supporters can point to years of domestic security that followed the September 11 attacks. Secrecy was used in an aggressive effort to protect the nation from al Qaeda and in the belief that intrusion into executive branch authority could hinder those efforts.

One could reasonably conclude that the administration officials either believed they could not risk interference of the courts and Congress in their pursuit of national security, or they operated under the premise that in this area the president has supreme authority, with checks and balances neither necessary nor desirable. Secrecy also spared the administration from facing public outcry. However, by creating secret policies authorizing domestic surveillance and detention, the administration denied the public, and the other two branches of government, an opportunity to participate in significant Constitutional deliberations.

Had the attacks on U.S. soil continued in the weeks and months following September 11, it is likely that congress and the courts would have countenanced an extreme concentration of power in the hands of the president in order to defend the nation. The Constitution is a flexible document, open to interpretation in the light of various circumstances. However, as the potential threats were nullified and weeks and months of security turned into years without an attack, the justification for secrecy diminished.  This led to at least a risk of Constitutional crisis, as the executive branch acted on new interpretations of that foundational document without congressional or judicial oversight and without a clear need for such secrecy.

The terrorist attacks in New York and Washington, D.C. justified an extensive retooling of national security policies. The executive branch was responsible for developing new surveillance, detention and military policies. The government has now had time to implement new programs, not to mention conduct major foreign wars. Just as it wasn’t the same world on September 12, 2001 that it had been two days before, today it’s no longer the same world that it was on September 12, 2001. President Bush’s decisions with respect to executive branch authority, and the policies of surveillance, detention, and secrecy that resulted, are now being subject to scrutiny.  While there will undoubtedly be partisan acrimony as opponents of the Bush administration allege violations of the law, there are fundamental constitutional questions about the authority of the executive branch to act on new interpretations of the constitution without oversight that must be explored.

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