Tag Archives: George Bush

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.

Bush’s Final Act

Originally published at http://www.politicsunlocked.com



Exercise of presidential power to commute controversial sentences.

President George Bush ended the imprisonment of two former federal border guards, Jose Compean and Ignacio Ramos, convicted in the 2005 shooting of an unarmed drug dealer as he fled across the Mexican border.

Each man had been sentenced to more than a decade in prison, not only for the shooting, but also for covering up their actions, tampering with evidence and filing false reports.

Implications for Border Enforcement

The trial and subsequent convictions in 2006, unleashed a wave of controversy as supporters of the men argued that they were too harshly, or wrongly punished for seriously injuring the illegal-alien drug runner. During a period when many in the border states demanded stricter border enforcement, advocates for the men saw the prosecutions as protecting illegal immigration and punishing aggressive border enforcement.

Law Enforcement and the Use of Deadly Force

The lead prosecutor in the case, U.S. Attorney Johnny Sutton, rejected sympathy saying that the law does not allow the use of lethal force against someone fleeing, unless the lives of the officers or the public are put in danger.  

“These agents shot someone whom they knew to be unarmed and running away,” said Sutton.

Were the sentences too harsh as some have argued?  Should President Bush have overridden the judge’s discretion and given the men their freedom?

In commuting Compean’s and Ramos’ sentences, rather than giving each a full pardon, Bush has seen that the men will soon be released from prison, but will still be responsible for fines and meeting probation obligations. 

War Crimes for President Bush?

Originally published February 4, 2009, at politicsunlocked.com

Cheney, Bush, Rumsfeld

Dick Cheney, George Bush, and Donald Rumsfeld

Photo by milesgehm; licensed creative commons http://creativecommons.org/licenses/by/2.0/


The recent executive order issued by President Barack Obama, aimed at opening more presidential records to the public, has renewed discussion of the potential investigation and prosecution of Bush administration officials, including the former President himself.

Talk show host Rush Limbaugh has gone so far as to call the executive order ‘not American,’ foreseeing a media frenzy to find evidence of war crimes against former President George W. Bush.  

In its own right, the executive order, geared toward opening presidential records to scholars and journalists, is sound policy aimed at making government “of the people” more accountable.

Prosecution of George Bush, Vice President Dick Cheney, Secretary of Defense Don Rumsfeld, or other former Bush administration officials would certainly be a colossal mistake.  

Prosecuting leaders who make unpopular decisions, instead of removing them from office by electoral vote, undermines the office of the Presidency and the democratic process itself.  The belief that such prosecution would be objective, outside politics and justified by the death and destruction in Iraq or detention facilities around the globe, is simplistic.

The decisions of George W. Bush and his administration, in response to 9/11, in protecting the nation’s securitythrough the conduct of foreign wars, through surveillance, investigation, prosecution and detention, were exactly the kinds of profoundly difficult choices that those in high office are required to make.  True, they didimpinge upon the rights and freedoms of citizens and treat some non-citizen detainees brutally.  And while we may disagree, we should not underestimate the dilemma inherent in such decisions.

The President must lead in the face of rival and enemy nations, competing ideologies, religious and ethnic strife, economic turmoil and natural calamity.  At stake is the freedom, prosperity, justice and dignity of not only 300 million Americans, but also that of the nations with whom we cooperate, guide, and in many cases, help protect.

Balancing individual rights and national security is the President’s responsibility.  There are counterbalancing institutions of Congress and courts, but they generally exist to provide legislation and oversight, constitutional interpretation and protection of individual rights.  It is not perfection we seek, but balance.  

Barack Obama expressly campaigned against controversial Bush administration policies on Iraq, detentions and torture.  His election represents a shift in policy — a sign that the democratic system is working. 

Using civil or criminal courts against Bush administration officials, even in the belief that laws have been broken, will be political and would devastate our governmental system. 

The actions of the former President have outraged many, but cannot be equated with the war crimes or genocide for which international criminal laws have been devised.