Unitary Executive: American Dictatorship

Approximately one year ago the NSA wiretapping story broke in the New York Times. Follow up reports continue popping up, but for the most part the story is back under the radar. The story itself remained hidden for almost a year. The Times agreed not to publish it until their hand was forced by their reporter, who would scoop them in a book. And after the ensuing furor and outcry, the program continues on as before, thank you very much.

The facts of the story were never as complicated as some tried to make them out to be. The Bush Administration asserted that it did not need to obtain warrants from the FISA court to wiretap phones and proceeded to operate on that claim. Post-Watergate legislation created the FISA Court as a reaction to a number of alarming disclosures about government abuse of power including but not limited to; domestic spying, surveillance, medical and chemical experimentation, and in a few cases, assassination of American citizens. In practice the FISA court had mostly served as a rubber stamp having rejected only handful out of tens of thousands of warrants over the years. FISA allows for retroactive warrants within 3 days of the wiretap to allow for expediency. Lastly, the court is secret - meaning that court proceedings are closed to the public. In other words, it provides the bare minimum cachet for law enforcement.

So why did the Bush Administration decide that it did not need to go through the FISA court consider that,

1. Going through the court does not impede its ability to eavesdrop on foreign phone calls in any way.
2. Getting approval was not an arduous or difficult process.
3. The court is exceptionally flexible.
   

As soon as the story broke I figured this story fit into a larger pattern of behavior that included dismissing the Geneva Conventions, legalizing torture, and generally undermining international law. Operatives within the Bush Administration are on a mission to unshackle the executive branch from any international or domestic legal constraints on its power, no matter how small. In their view, the executive does not ask permission to do as it wishes. The executive is supposed to be an extremely powerful figure, what they call a “unitary executive.” Many of the unitary executive proponents are lawyers, so it is safe to presume that they know our legal system is based on two systems of law; written law - or legislation - and precedent/common law.

The power of precedent is most well known in instances when a previous precedent is overturned. Some of the U.S. Supreme Court’s most famous decisions, like Brown v. Board of Education, were monumental precisely because they overturned an existing precedent. The supporters of Unitary Executive theory could not legislate unitary executive powers, although they authored many radical revisionist interpretations of the Constitution and existing laws, but they could establish legal precedents by taking action and daring the courts and Congress to defy them. If successful, which remains to be seen, their legacy will be institutional civilian-dictatorship.

Dictatorship as we know it takes the form of a military strongman or junta who rules through force. We often recognize them for their physical traits - military uniforms, weird facial hair, and backed by a ruthless police force - rather than the underlying principles that under gird their rule. The psychological archetype of dictatorship makes it harder for us to recognize that dictatorship can take other forms. “Unitary Executive” is an institutionalized form of dictatorship that would retain democratic forms without function. Courts would be packed with loyalists (i.e. Miers), regulatory agencies would be neutered and subjected to executive approval, and the legislation branch's function would be reduced to that of a rubber stamp.[][] Reuters. "Bush Tightens Control Over Regulatory Process." 31 January 2007

The dictator would likely get a face lift every 4-8 years, but the system would remain static with a very narrow concentration of power; unitary executives are unrestrained by any legalities and can unilaterally interpret the law. This isn’t speculation or accusation - they say this explicitly in their legal writing and articles if you care to look.

President Bush is somewhat maligned for never vetoing anything (the only veto to date has been a stem cell bill). This is not a sign of executive laziness or one party rule. It is yet another facet of the story. The Bush Administration uses something called a presidential signing statement to fundamentally alter legislation and explicitly reserve the right to interpret the law as it sees fit. Consider for a moment the ramifications of this compared to what we learn in civics classes about the three branches of government and the role each is supposed to play in governance. Bush has issued more signing statements than all of his predecessors combined (over 1000 at last count) and, according to the American Bar Association, the nature or effect of his statements have been much different than any of his predecessors. Historically, signing statements were a means for presidents to comment on a particular bill; Bush has used them to reinterpret their meaning, which encroaches on the judiciary branch's power. Furthermore, by eschewing the veto power Bush has undermined Congress by disavowing any recognition that have the authority to override his veto.

The Bush Administration’s actions are so radical, out of the ordinary, subversive, and dysfunctional to the accepted legal framework of this country that most people in the media simply can not recognize it. They operate in a universe that has rules and assumptions for how things work and when a group that does not respect the physics of their universe comes along, they lack the ability to describe it in context.

For the most part, the media and others have gotten lost in the atomic details of each story without noticing the overarching narrative. Violating FISA is not about catching terrorists. Bush and his supporters that the law hindered his ability to protect American citizens, but that does not hold up under any kind of scrutiny as we have discussed. Regardless of the facts though, they have successfully cast the debate as a false choice: you are either for legal niceties or doing what it takes to catch terrorists. By pulling on the familiar levers of fear they have neutered their opposition, who are left to explain to the body politic, raised on fictional men who break rules for the greater good like Harry Callahan and Jack Bauer, why stopping terrorism and following the law are not mutually exclusive. They have to explain why torture doesn’t work in the real world instead of arguing that torture is an immoral tool of dictatorship. We are left to figure out what exactly a prisoner of war is and whether or not they can or cannot be legally tortured or detained indefinitely. Myopia prevents us from seeing how all of these stories create a synergy that fundamentally corrupts our democracy. If we wad up the Geneva Conventions, the Nuclear Proliferation Treaty, ABM Treaty, Kyoto Treaty, UN Article 51, and on and on like used toilet paper then we have done away with habeas corpus and the Supremacy Clause of the U.S. constitution. If our government can pick and choose what laws it should follow, then we have no law. Similarly, we could go through each presidential signing statement and discuss what exactly it says and means, and whether or not it is sound opinion and completely miss that the sheer number of statements encroaches on the legislative and judicial branches of government and therefore threatens the skeletal structure of our government. Maybe we are at the pendulum of democracy’s rightmost point and through renewed public activism and concern it will swing back in due time. But perhaps a pendulum is the wrong metaphor. Maybe we are transitioning into the next phase of Plato’s evolution, from democracy to dictatorship, and once the swelling wave finally recedes, the landscape will be irrevocably altered.

Charlie Savage of the Boston Globe is a notable exception to the media’s myopic behavior, and he has done superlative work on putting the many jigs of this puzzle into a coherent picture. I now refer you to Savage’s latest piece in the Boston Globe, which documents Dick Cheney’s quest to rollback post-Watergate reforms and create an institutional dictatorship in the executive branch. (Note also that these are the people a substantial percentage of the American media establishment believes want to create democratic governments in the Middle East.)