Today, National Public Radio reporter Guy Raz reported that the Bush Administration is in negotiations with the Iraqi government of Nouri al-Maliki to create an “enduring relationship that will ensure that the United States occupies and guarantees the government’s safety against threats both foreign and domestic for at least the next 10 years. One Representative, Bill Delahunt of Massachusetts, has been trying to get both Administration and Pentagon officials to testify as to the nature of the negotiations, thus far with no success. Rep. Delahunt’s guess as to why? Because the agreement may qualify as a “treaty” instead of an “agreement,” and thus require Senate ratification, something that President Bush doesn’t want and doesn’t believe that he, as President, needs.
This represents yet another example of this administration’s expansive view of Presidential power, and it needs to be the one that breaks Congress’, and the public’s, back.
President Bush is a True Believer™ in the imperial presidency, a perspective that the Constitution of the United States grants the President almost unchecked power with regard to pretty much everything. First popularized by historian Arthur M. Schlesinger, the imperial presidency dates back to FDR, if not further, and supposedly reached its zenith under Richard Nixon. In the post-Watergate days and months, Congress forced new restrictions on the Presidency that presidents have been pushing back on ever since – the Freedom of Information Act (FOIA), the Foreign Intelligence and Surveillance Act (FISA), limitations on information sharing between the FBI, IRS, CIA, et al, and restrictions on the CIA’s ability to operate on U.S. soil.
But in many ways it wasn’t until President Bush that supporters of the imperial presidency, aka expansive Presidential powers, made significant headway. And most of that so-called progress has been made as a direct result of the September 11 attacks.
On September 18, 2001, Congress approved the “Authorization for Use of Military Force”, Public Law 107-40 [S. J. RES. 23], and in so doing granted President Bush the Congressional authority he needed to prosecute the so-called “war on terror.” Specifically, the President was:
…authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Based on the authority of this not-quite-a-declaration-of-war, President Bush invaded Afghanistan and overthrew the Taliban who were, then, harboring the organization responsible for 9/11 – Al Qaeda and Osama bin Laden.
But this authorization of force has been used to justify extraordinary rendition, the process of sending accused terrorists to foreign nations where they can be tortured for information in direct contravention of U.S. law. President Bush and former Attorney General John Ashcroft have acted directly against FISA by ordering warrantless NSA wiretaps, claiming that the Authorization for Use of Military Force, combined with his Constitutional authority as President, granted him all the authority he required to ignore prior federal laws and spy on U.S. citizens on U.S. soil. Similarly, President Bush and his various underlings have claimed that waterboarding is not torture and that only by threatening death or causing severe organ damage may an “interrogation technique” be called torture. Similarly, President Bush authorized secret CIA prisons abroad specifically to bypass U.S. law and developed the entire concept of illegal or unlawful combatants in order to avoid granting international POW status to suspected Al Qaeda members.
But it hasn’t stopped there. Following the successful invasion of Afghanistan (and thus far unsuccessful reconstruction), President Bush sought to make a case for invading Iraq and overthrowing Saddam Hussein, something that his father and former President, George H. W. Bush had wisely refused to do in 1991 (or possibly, in President Bush’s mind, failed to accomplish). In the process, he, Vice President Dick Cheney, and many of his highest advisors chose to lie repeatedly to Congress, the American people, and our international allies. The result was the Authorization for Use of Military Force Against Iraq Resolution of 2002 (aka the Iraq War Resolution) and, ultimately, the invasion and subsequent ongoing occupation of Iraq.
President Bush wasn’t happy with everything that the Iraq War Resolution had in it, and as a True Believer™ in “expansive” Presidential power, he issued a signing statement that said, in part:
[M]y signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use force to deter, prevent, or respond to aggression or other threats to U.S. interests or on the constitutionality of the War Powers Resolution.
Which basically meant that President Bush refused to acknowledge that Congress had any authority to limit his military activities as Commander in Chief.
Since then, President Bush has ignored repeated calls by Congress to limit the scope and duration of the ongoing occupation of Iraq. For example, he’s rejected, again through the use of a signing statement, restrictions on his ability to move money around within the Executive Branch, especially between the Department of Defense and the CIA, and even within the DoD itself. His argument is essentially that the President gets to run the Executive as he sees fit, but if this is true, then Congress’ only recourse (as defined by their Constitutional authority to control government funding) is to defund the entire Executive branch. And President Bush’ wide use of signing statements has thrown the entire Executive branch into a legal limbo regarding which laws, and which parts of laws, they have to follow. If you believe President Bush, though, neither he nor his underlings face any restrictions on their activities as imposed by federal law. In essence, the entire Administration is an extralegal and unaccountable entity. In other words, President Bush isn’t a President accountable to Congress and the judiciary – he’s a dictator.
And now President Bush is trying to do an end-run around Congress’ treaty ratification authority while at the same time trying to bypass three separate federal laws that limit his ability to construct permanent military bases in Iraq. All in the name of the very “status of forces” agreement that Guy Raz reported on. According to Mr. Raz, there are legal (if unethical) ways around those annoying federal laws, like using “adjectives like ‘enduring’ or ‘continuing’ instead of the word ‘permanent’”. Kenneth Katzman, a Middle East analyst for the nonpartisan Congressional Research Service, goes so far as to wonder whether “keeping the elected Iraqi government in power against internal threats” qualifies legally as a treaty or not. I wonder if the agreement will go so far as to define the Iraqi Parliament, of which nearly half have voted to have the U.S. end their occupation within two years, as an organization that could qualify as an “internal threat.”
Ultimately I agree with Mr. Raz’s conclusion – if the imperial presidency of George W. Bush ignores all these laws, as well as a new one that the Senate is considering, this issue will rapidly come before the Supreme Court. And then we’ll see if the President is allowed to ignore the very Constitution he’s sworn, and utterly failed, to serve and protect.