UPDATED: Jul 11, 2007

 “THE MOST SUCCESSFUL AMERICAN PRESIDENT:
             GEORGE W. BUSH, PART 2: THE CONSTITUTION”        

This column is the second in this series.  Its focus is on the centerpiece of the BushCheney (or CheneyBush, whichever you prefer) Presidency: the destruction of our treasured Constitutional Democracy that (for the most part) has served our nation so well for the 218 years of its existence.   

To start, let’s review the seeming conundrum between this worst, while at the same time most successful, President ever.  An item on AOL News for June 13, 2007 was headlined: “Bush: Does He Have Any Clout Left?" Gosh.  His poll numbers are in the tank and going lower.  The Congress is Democratic (by the thickness of the hair on Joe Lieberman’s head which is not much, and no one can figure out what is going on inside Joe Lieberman’s head, but the Democrats have both Houses at least for the time-being).  By a fairly large margin the public disapproves of his major foreign policy initiative, the War on Iraq.  Republican candidates, for the Presidency, the Senate, and the House are beginning to desert him personally (while for the most part they are deserting none of his policies, except, for some, on the distractive issue of immigration).  So does he have any clout left?  You bet your sweet pitootie he does.  George Bush (and Cheney and Rove), better than any American President since Franklin Delano Roosevelt, understands the power of the Executive Branch under the Constitution.  And this President, unlike any other American President ever, understands how to expand his powers way beyond those specified by the relatively limiting Article II of the Constitution, given that there is little real opposition with both the will and the power to challenge him in his campaign.   

In this context, “him” always means Bush and Cheney and his staff and Rove and his staff and Bush’s two Attorneys General and their staffs.  For it is they collectively, including lawyers like Ashcroft and Gonzales and Addington (Cheney’s own Consigliore) and Yoo, who have designed the campaign.  Lawyers, you might ask?  How could lawyers, all of who presumably took Constitutional Law in law school, do this?  Did you know that one third of the men sitting around the table at the Wansee Villa outside of Berlin on January 20, 1942, when the “Final Solution to the Jewish Question” as presented by Reinhold Heydrich was fully assented to by leading members of the Nazi government and industry, were lawyers?  And so, with his kind of lawyers in tow, and sometimes leading the march, from the outset of his Presidency Bush has proceeded with a gradual campaign of Constitutional Destruction. 

This campaign has been as well planned as it has been implemented, and it has obviously been in the Bush Administration plans since the beginning of his Presidency.  For example, Cheney had been expounding on the theory of the “Unitary Executive,” (a polite term for dictatorship) since well before the Vice-Presidency was a gleam even in his eye (see the recent Washington Post “Cheney” series).  The Patriot Act, which clearly gave the President unconstitutional powers to over-ride the Fourth, Fifth and Sixth Amendments on his own authority, is 342 pages of complex legislation.  It was introduced to the Congress on Oct. 24, 2001, just 43 days after the 9/11 tragedy.  It is highly unlikely that this text could have been written in that period of time, especially given that first someone has to decide to ask the Dept. of Justice to prepare such a bill, that decision has to be reviewed, the concepts have to be developed, it has to be presented to Justice, writing assignments have to be made, drafts prepared and reviewed, everything has to collated, and so on and so forth, and in those days Bush had not had the opportunity to litter the career ranks of the DOJ with his political appointees.  In fact, that bill had to have been months in the planning, preparation, and writing, with the Busheviks just waiting for the right time to send it to Congress, which then was given three days to pass it. 

Once upon a time, Karl Rove was uncharacteristically open and blunt about what he and Bush et al were all about.  As I noted in a TPJ column of mine published on Dec. 2, 2004, in The Guardian (UK) of November 25, 2004 the US political analyst Sidney Blumenthal had a column about the opening ceremonies for the Clinton Presidential Library in Little Rock, AK.  The article was entitled "One gulp and Bush was gone.”  In the article, about the opening ceremonies, Mr. Blumenthal made a number of fascinating observations.  One of them was most chilling.  In reference to Karl Rove, Blumenthal noted that "offstage, beforehand, Rove and Bush had had their library tours.  According to two eyewitnesses, Rove had shown keen interest in everything he saw, and asked questions, including about costs, obviously thinking about a future George W. Bush library and legacy.  'You're not such a scary guy,' joked his guide.  'Yes, I am,' Rove replied.  Walking away, he muttered deliberately and loudly: 'I change constitutions, I put churches in schools ...' “Indeed he does, and they do. 

One of Bush’s primary goals upon taking power was to establish this new concept of American government called the “Unitary Executive.”  The lawyer John Yoo, who did much of the leg-work on the “torture-is-more-than-OK” policy before he left the Department of Justice, has trumpeted his work in two books.  Cheney has talked about it on numerous occasions.  Their flacks in the Privatized Ministry of Propaganda, like William Kristol on (up or down depending upon your point of view) in the Weekly Standard, talk admiringly and approvingly of Bush’s “near dictatorial powers.”  And one does have to observe, although many just do not want to face facts, that he has pretty well established a Unitary Executive.  It has been created both by legislation passed by the rubber-stamp Republican Congress Bush had for six years, and steps he has taken on his own supposed authority, nowhere mentioned in the Constitution.  Just read its Article II, the bulk of which is concerned with the method of electing the President, the power to make treaties and appointments, and the State of the Union Address.  There ain’t nothin’ to be found in it like anything that they have done.  And oh yes, it does specify that the President shall “take care that the laws shall be faithfully executed.”  So let’s see what this all has lead to, not necessarily in order of importance. 

There is Bush’s conceit that the Constitution gives him the power to issue “Signing Statements” that in turn given him the power to ignore statutes passed by the Congress.  His claim to this power is under some doctrine that if he thinks that something in an Act of Congress is unconstitutional, by saying so at the time of signing, he can just ignore or even break the law.  (And apparently, it has been recently revealed by a Government Accountability Office [GAO] study of his “Signing Statements,” he and a variety of Federal departments have been doing just that.)  He fails to note that he already has the power to reject a bill passed by Congress on any grounds he wishes (like, hey, I just don’t like the idea of stem cell research so to the extent that I can, I am going to prevent its benefits from being of use to those who do), before signing it into law.  That power is called the veto.  He is using that one with increasing frequency now that the Congress is in Democratic hands.  But under the Constitution itself, the veto is the only power of challenge to congressionally passed legislation he has.  No matter.  He has changed the Constitution on his own authority. 

There are the aforementioned powers of permanent imprisonment without trial of anyone, foreign or US citizen, that he labels a “terrorist” or “aider and abettor of terrorism.”  I have written on numerous occasions of these powers and how they violate the Fourth (search and seizure, probable cause), Fifth (due process) and Sixth (fair trial) Amendments to the Constitution.  He has amended Article Six on several occasions.  The Geneva Conventions are signed and ratified treaties of the United States.  Under Article VI they are thus classified as part of the “Supreme Law of the Land.”  No matter.  The then Counsel to the President, now Attorney General, on the prompting of John Yoo, labeled them “quaint” and thus totally ignorable by the President when it comes to the matter of torture.  Thus the UN Charter, also as a treaty part of the Supreme Law of the land, which under Article 51 prohibits preemptive war, can be ignored as well. 

Then there are the unchallenged Executive Orders of a type not provided for by the Constitution.  Two of the recent ones are National Security Presidential Directive/NSPD 51 and Homeland Security Directive/HSPH-20 in which the President established for himself the power to run all three branches of the Federal government in case of a “national emergency,” as defined and declared by, you guessed, GW Bush (and/or Dick Cheney?).  Thus the President has unilaterally placed himself not only above but also in control of the other two branches of government in a situation, “national emergency,” that he has given himself the power to define and declare. 

A “failed Presidency?”  Hardly.  As I noted last week, success is measured against goals set and the degree to which they have been achieved.  Bush set out to achieve what I have on more than one occasion termed a “coup d’etat in slow motion.”  Forget the polls.  This man first embraced the powers truly vested in him by the Constitution.  Then, little challenged by the weak opposition, and strongly supported for the first six years by his lock-step Republican Congress, and ongoing, his in-the-pocket Privatized Ministry of Propaganda, has used them, step-by-step and piece-by-piece, to create an Office of the Presidency with powers that no reading of the Constitution can possibly support.  That’s success, man.   

More next week on policy specifics.

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