The Republican Presidential ideal

It's fortunate for our freedom that the clash of ambitions assumed by the Founders does take place in the ordinary functioning of government.  When Bill Clinton was president, Republicans hardly bothered to pretend they respected the institution of the Presidency.  Through the huge pseudoscandal collectively known as Whitewater, the Reps managed to get court decisions against the privileges of the Presidency, e.g., that the president can be the defendent in a civil suit while in office; that government attorneys cannot claim attorney-client privilege to avoid testifying about advice they gave the president.

But now that the Bush-Cheney regime is in power, the Reps have been willing to accept a far greater degree of authority for the Executive.  In fact, one can argue that the expected function of ambition that the Founders expected to motivate Congress to balance off the powers of the Executive has failed to function as hoped these last few years, with the increasingly authoritarian Republican Party in control of all three branches of the federal government.

David Cole of Georgetown University gives us a look at the authoritarian notion of the Presidency that the Bush administration has largely embraced, although fortunately even the Republican courts haven't been willing to go as far as What Bush Wants to Hear New York Review of Books 11/17/05 issue (accessed 11/08/05).

Cole reviews the new book by John Yoo, the legal adviser who played a key role in starting the practice of torture in the Bush Gulag, and talks about the radical implications of Yoo's argument that the President can do pretty much anything he wants in the name of national security:

Yoo's most famous piece of advice was in an August 2002 memorandum stating that the president cannot constitutionally be barred from ordering torture in wartime—even though the United States has signed and ratified a treaty absolutely forbidding torture under all circumstances, and even though Congress has passed a law pursuant to that treaty, which without any exceptions prohibits torture. Yoo reasoned that because the Constitution makes the president the "Commander-in-Chief," no law can restrict the actions he may take in pursuit of war. On this reasoning, the president would be entitled by the Constitution to resort to genocide if he wished.

Cole reminds us that the the Founders were especially concerned to limit the president's power to take the country to war on his own decision.  It's easy with the Iraq War to see how sensible that concern was.  Cole writes:

Many of the framers passionately defended the decision to deny the president the power to involve the nation in war. When Pierce Butler, a member of the Constitutional Convention, proposed giving the president the power to make war, his proposal was roundly rejected. George Mason said the president was "not to be trusted" with the power of war, and that it should be left with Congress as a way of "clogging rather than facilitating war." James Wilson, another member, argued that giving Congress the authority to declare war "will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large." Even Alexander Hamilton, one of the founders most in favor of strong executive power, said that "the Legislature alone can interrupt [the blessings of peace] by placing the nation in a state of war." As John Hart Ely, former dean of Stanford Law School, has commented, while the original intention of the Founders on many matters is often "obscure to the point of inscrutability," when it comes to war powers "it isn't."

This is a good reminder of just how far Yoo goes in arguing the President's power to simply discard laws he finds inconvenient in pursuit of his own war powers:

Yoo wrote [in the pro-torture memo he drafted] that threats of death are permissible if they do not threaten "imminent death," and that drugs designed to disrupt the personality may be administered so long as they do not "penetrate to the core of an individual's ability to perceive the world around him." He said that the law prohibiting torture did not prevent interrogators from inflicting mental harm so long as it was not "prolonged." Physical pain could be inflicted so long as it was less severe than the pain associated with "serious physical injury, such as organ failure, impairment of bodily function, or even death."

Even this interpretation did not preserve enough executive "flexibility" for Yoo. In a separate section of the memo, he argued that if these loopholes were not sufficient, the president was free to order outright torture. Any law limiting the president's authority to order torture during wartime, the memo claimed, would "violate the Constitution's sole vesting of the Commander-in-Chief authority in the President." (my emphasis)

Cole's review is a good reminder of how flexible Republican principles can be.  Yoo claims to be an adherent of the "originalist" school of judicial interpretation.  This is popular among many hardline conservatives.  The idea is that in interpreting the Constitution that the original intent of the Founders should be strictly observed.  Cole explains how imaginative Yoo has to get in order to twist the Founders deep suspicion of excessive Executive power into a justification for an authoritarian Presidency.

Cole points out that the radical position Yoo takes, and which obviously have a lot of sympathy among Republican autoritarians, amounts to contempt for the rule of law, at least so far as it constrains the Republican President:

The proposition that judicial processes - the very essence of the rule of law - are to be dismissed as a strategy of the weak, akin to terrorism [as the official National Defense Strategy of 2005 describes them], suggests the continuing strength of Yoo's influence. When the rule of law is seen simply as a device used by terrorists, something has gone perilously wrong. Michael Ignatieff has written that "it is the very nature of a democracy that it not only does, but should, fight with one hand tied behind its back. It is also in the nature of democracy that it prevails against its enemies precisely because it does."Yoo persuaded the Bush administration to untie its hand and abandon the constraints of the rule of law. Perhaps that is why we are not prevailing.