The Unitary Executive

[Updates below.]

Bush, Denmark's Rasmussen Confer on Iraq at Camp David:

Bush said Rasmussen brought up the issue of detainees at Guantanamo Bay, Cuba, and that he had assured Rasmussen the United States would like to close that facility. "We're now in the process of working with countries to repatriate people," the president said. "But there are some that, if put out on the streets, would create grave harm to American citizens and other citizens of the world. And, therefore, I believe they ought to be tried in courts here in the United States."

Bush said the United States will proceed with trials "once the Supreme Court makes its decision as to ... the proper venue for these trials."

Every person who counts themselves as a fan of the people and ideas that gave birth to this nation ought to be horrified upon reading this. Here's the full context:

Remarks by President Bush and Prime Minister Rasmussen of Denmark in Joint Press Availability

The Prime Minister and I share values, and he spent time making sure that I understood his strong belief that when we fight the war on terror and we help new democracies, that we've got to uphold the values that we believe in, and he brought up the Guantanamo issue. And I appreciate the fact that the Prime Minister is concerned about the decisions that I made on -- toward Guantanamo. I assured him that we would like to end the Guantanamo. We'd like it to be empty. And we're now in the process of working with countries to repatriate people.

But there are some that, if put out on the streets, would create grave harm to American citizens and other citizens of the world. And, therefore, I believe they ought to be tried in courts here in the United States. We will file such court claims once the Supreme Court makes its decision as to whether or not -- as to the proper venue for these trials. And we're waiting on our Supreme Court to act.

Copyright © 2006 PR Newswire. All rights reserved.

The italicised portion was spoken as a factual statement. There was no attempt to qualify his meaning. He did not hedge his words. Bush is not a great public speaker and his extemporaneous abilities leave much to be desired.

However, this was clear. He stated, with the full authority of a President of the United States, that there are people imprisoned at Guantanamo who will attempt to maim, kill, and wreck if free. This a judgement and he is executing the sentence. The bolded section isn't a way to get around this. If anything, its a flat-out fabrication if it means Bush has always thought everyone at Gitmo deserved a standard, open American trial.

Some people have voiced concern that Bush has attempted to ursup the power of the legislative branch by way of his signing statements:

The American Bar Association Board of Governors voted unanimously Saturday to launch an inquiry into President Bush's frequent use of signing statements to bypass new laws because of his interpretation of presidential and executive powers under the US Constitution. The President has used such statements some 750 times since taking office in 2001. In January this year, he controversially reserved the right to bypass a ban on torture when he signed the 2006 defense spending bill, prompting even top Republican leaders to criticize him.

The ABA has assembled a bipartisan task force of legal professionals and scholars, including former federal judges and Justice Department officials, to research whether Bush, who has appended more signing statements to bills than any other US president, has exceeded his constitutional authority and circumvented the system of checks and balances with the signing statements. The committee is expected to report its findings to the ABA's House of Delegates, which will decide whether to adopt the recommendations, in August.

© JURIST

For a further angle, here is Dahlia Lithwick:

[U.S. Solicitor General Paul Clement]'s arguments [in Hamdan v. Rumsfeld] are frequently drawn from the well of "because the president says so," or "because the president is the president," or "because it's wartime." They start to sound like Alberto Gonzales' testimony before Congress or the president's signing statements: legal analysis by assertion and justification by double standard. This war is like every other war except to the extent that it differs from those other wars. We follow the laws of war except to the extent that they do not apply to us. These prisoners have all the rights to which they are entitled by law, except to the extent that we have changed the law to limit their rights.

In other words, there is almost no question for which the government cannot find a circular answer.

[...]

[Clement] cites the executive's longstanding authority to try enemies by military tribunal. When Justice John Paul Stevens asks for the source of the laws that such tribunals would enforce, Clement replies that the source is the "laws of war." When Stevens asks whether conspiracy is encompassed within the laws of war, Clement says that the president views conspiracy as within the laws of war.

Neat trick, no?

©2006 Washingtonpost.Newsweek Interactive Co. LLC

That represents an effort to accrue power away from the legislative and towards the presidential.

The italicized quote above is fundamentally the same thing. The primary difference is it's an effort to accrue power from the judiciary.

Ultimately, this is what a "unitary executive" means in practice: the concentration of state power within the hands of one person. It is an explicit rejection in principle of those famous "checks and balances" set up to restrain the feared power of someone who might, for example, believe he or she had the right - as a direct consequence of the authority inherently vested in their position as president - to detain anyone indefinitely as long as he or she decided that person was a sufficient threat to national security.

Readers. I am entirely serious when I say this constitutes, at the very least, a nontrivial step towards a government of dictatorship. This is not in any way a specific swipe at Bush, either. He is not the only one to assert or imply an argument of this kind nor is he alone in such engaging in such activities that prove the sitting president believed he had the authority to make law. He is merely the latest.

The American state has centralized, increased, and expanded its control over issues of commerce and communication (all reducible to issues of who owns you and the things you possess) over time. It could not have been done without executive branch assistance. Asserting the president can interpret, enforce, and judge the law as he or she may see fit, under the circumstances of his or her choosing, is a recent but simply not surprising development.

Once you accept that there is a legitimate justification for using aggression, the political pressure will grow to encircle more human activity beyond even very limited and clear scenarios.

UPDATED 8/22/2006 10:53am
Don't Judge the Imperial Executive!

Posted by Drizzten at June 10, 2006 07:01 PM