{1} "By the time Clinton finished his second term, it looked to many experts as if the White House would be working with diminished authority for years to come: the presidential historian Michael Beschloss called George W. Bush ‘the first truly postimperial president.’ "
--Jonathan Mahler; After the Imperial Presidency; The New York Times Magazine; November 9, 1980; page 44.
Arthur Schlesinger, Jr., the Pulitzer Prize-winning historian and aide to President John Kennedy and adviser to Senator Robert Kennedy, coined the term "the imperial presidency" in his 1973 classic book by the same name. Schlesinger had begun the book, which focused upon the history of attempts to expand executive powers during times of war, before the Watergate scandal had come to the nation’s attention. His goal when he began the book was to warn the public of the dangerous course that Nixon was taking us on; his timing in writing the book is a testament to understanding and applying history to current events.
Yet in an earlier essay, "The Inscrutability of History" (published in his 1967 book "The Bitter Heritage"), Schlesinger had warned that historians are not always able to predict the future. Beschloss’s prediction that Bush would be a post-imperial president is an obvious example. More, Schlesinger noted that historians who are working for a particular politician are prone to make errors, due to a lack of objectivity. It’s interesting to note the example of Sean Wilentz, who wrote the foreword to the re-release of Schlesinger’s 1963 "The Politics of Hope" and "The Bitter Heritage" in one volume. Wilentz, one of the outstanding historians of our era, proved less capable in his role as an aide in the 2008 primaries.
Thus, I was pleased to read Jonathan Mahler’s objective look at the dangerous conditions that our nation faces, as a result of the actions taken by the Bush-Cheney administration after 9/11. The article begins with these two stark sentences: "Secretly and at times unconstitutionally, the Bush administration expanded executive power. Will the new president and a new Congress redefine who is in charge?"
{2} "The Congress was intimidated after 9/11," (Republican Senator Lindsey Graham) answered. "People were afraid to get in the way of a strong executive who was talking about suppressing a vicious enemy, and we were AWOL for a while, and I’ll take the blame for that. We should have been more aggressive after 9/11 in working with the executive to find a collaboration, and I think the fact that we weren’t probably hurt the country. I wish I had spoken out sooner and louder."
--Jonathan Mahler; After the Imperial Presidency; page 45.
There is plenty of blame to spread around for the damage that has been done to our Constitutional democracy since 9/11. The most obvious people are President George W. Bush and VP Dick Cheney. In his 2004 book "Losing America," Senator Robert Byrd documented how on 9/11, VP Cheney instituted the "shadow government." (pages 78-79) The "continuity of government" had first been developed during the Eisenhower administration, in case of nuclear war. Cheney’s version put approximately 100 people from the executive branch and business community in charge of the federal government, without providing for any role for the legislative or judicial branches. And, as documented in Barton Gellman’s 2008 book "Angler: The Cheney Vice Presidency," literally every unconstitutional and illegal action taken in the years since 9/11 are a direct result of Cheney’s shadow government.
The federal courts and Congress were never notified by the executive branch that this "change" had taken place. It was not until March of 2002, when the Washington Post first reported on it, that anyone knew. The White House told members of the House and Senate that because the "shadow government" was run out of the office of Chief of Staff Andrew Card, the Congress lacked oversight authority.
The second group that deserves blame in these events is, of course, the members of Congress. This blame is not limited to republicans. A good example is found on pages 301-302 of Gellman’s book: when Jane Harman, the ranking minority leader on the House Intelligence Committee, found out that VP Cheney had clearly violated the law, her first action was to request a meeting with him. In that meeting, Harmon described her plan to provide Cheney with cover to avoid legal consequences.
Today, Harmon is lobbying to be appointed to oversee the intelligence community in the Obama administration. Clearly, the problems that we face cannot be defined in simple "democrat vs republican" terms. Yet, the "democrat vs republican" conflict plays an import role in our understanding of the history that allowed Bush and Cheney to damage the foundations of our Constitutional democracy.
{3} "According to Ornstein, the Senate, and in particular its leader through 1996, Bob Dole, was at first skeptical of Gingrich and his ideological minions in the House. But Dole’s successor, Trent Lott, was more partisan and thus more willing to engage in the politicization of Senate actions like the confirmation of Clinton’s judicial appointments."
--Jonathan Mahler; After the Imperial Presidency; page 45.
Norman Ornstein and Thomas Mann published "The Broken Branch: How Congress is Failing America and How to Get It Back on Track" in 2006. This valuable book details how Newt Gingrich and a group of radical republicans worked to divide both the House and Senate into hostile camps – democrats vs republicans – which would result in a Congress that was impotent. Their goal was not only to render Congress incapable of functioning as an independent branch of the federal government, but to reduce it to the status of cheerleaders for an imperial presidency.
In fact, the authors detail meetings between members of Congress and VP Dick Cheney, to discuss HJ Res. 67, 107th Congress, 1 session; this proposal would have amended the Constitution of the United States to allow the president to appoint members to the House in times of "national emergency." (pages 199-207 & 253)
In light of this, it seems evident that the problems we face have roots going back further than 9/11.
{4} "They had forgotten, if they ever knew, that the Constitution is designed to be a law for rulers and people alike at all times and under all circumstances; and that no doctrine involving more pernicious consequences to the commonweal has ever been invented by the wit of man than the notion that any of its provisions can be suspended by the President for any reason whatsoever.
"On the contrary, they apparently believe that the President is above the Constitution, and has the autocratic power to suspend its provisions if he decides in his own unreviewable judgment that his actions in doing so promotes his own political interests or the welfare of the nation. As one of them testified before the Senate Select Committee, they believed that the President has the autocratic power to suspend the Fourth Amendment whenever he imagines that some indefinable aspect of national security is involved."
--Senator Sam Ervin; The Senate Watergate Report; page 13.
It is not a coincidence that Senator Ervin’s comments regarding the series of crimes and abuses of power that are known collectively as the "Watergate scandal" apply to today’s situation. Some of the same cast of characters from the Nixon White House moved on to become the participants in the series of crimes and abuses of power known collectively as the "Iran-Contra scandal." And many of the cast of characters from the Reagan-Bush administration moved on into positions of power in the Bush-Cheney administration.
Among the factors that allowed Watergate to metastasize into Iran-Contra and then the full-blown Bush-Cheney scandals was presidential pardons. The House was prepared to impeach Nixon, and when he knew the Senate would convict him, he resigned in disgrace. Though Congress opted to end its impeachment proceedings against Nixon, he still faced the potential of criminal charges. However, President Ford granted him a full pardon.
Likewise, on Christmas Eve in 1992, President Bush the Elder granted pardons to former Secretary of Defense Casper Weinberger, Elliot Abrams, former national security adviser Robert McFarlane, and three other intelligence operatives.
A second factor was a lessening of Congressional resolve to address "high crimes and misdemeanors" in the executive branch, after Watergate. Senator John Kerry was the most impressive member of the legislative branch in his attempts to uncover the crimes and abuses of power involved in the Iran-Contra scandals. The Congress had enough documentation to impeach and convict President Reagan, but opted not to.
In an ugly demonstration of the harmful potential of the "democrat vs republican" mentality that Gingrich & Co. had infected the Congress with, on December 19, 1998, the House of Representatives impeached President Clinton for purely political purposes. On February 12, 1999, the Senate acquitted him. But the damage was done, which is why Beschloss predicted that Bush2 would be "the first truly postimperial president."
{5} "For those concerned about the expansion of presidential power, Barack Obama’s answers to the Boston Globe’s 2007 questionnaire were encouraging. Among other things, he said the president can’t conduct surveillance without warrants or detain United States citizens indefinitely as unlawful enemy combatants. He also said it’s illegal for the president to ignore international treaties like the Geneva Conventions and that if Congress prohibits a specific interrogation technique by law, the president cannot employ it. ‘The president is not above the law,’ Obama said."
--Jonathan Mahler; After the Imperial Presidency; page 62.
As a US Senator, Barack Obama was among the majority of congressional members who did not support calls to impeach President Bush or VP Cheney. However, he has said that if he was elected, he would have his Department of Justice review the activities of the Bush administration.
The US Supreme Court, as Mahler notes, has rarely ruled against an administration in a time of war. However, as Barack Obama knows, the Supreme Court ruled against the Bush administration in four important cases, in a time of war. As a Constitutional scholar, President Obama surely understands the implications.
While the executive and judicial branches have the potential to respond to the damage that Bush-Cheney have done to our nation, there is an absolute need for both houses of the Congress to fulfill their obligations – most importantly, they must uphold their oath of office to protect the Constitution.
From examining the history of the Congress from the Watergate era to today, it is evident that it was most effective in upholding their oath to protect the Constitution in the days when Sam Ervin led the Senate Watergate hearings, and the House was preparing to issue articles of impeachment. And, after Nixon resigned, Congress engaged in a number of investigations of related illegal activities by the intelligence community.
Mahler reports that President Obama is expected to reach a compromise with the Bush administration, on what documents will be released to satisfy congressional committees’ requests. As in the Watergate era, Congress can use those documents to request the federal courts force the Bush administration to release further evidence.
History also shows that allowing those who break the law and abuse the power of their office to avoid legal consequence is but a form of sowing the seeds for larger high crimes and misdemeanors in the future.
During his campaign, Barack Obama said that he would need the active participation of the grass roots in order to deal with the problems we face. It is essential that members of the progressive and liberal democratic grass roots demand that he and the Congress address the crimes and abuses of power of the Bush-Cheney administration.