Has George W. Bush been the worst president ever? Or, as New York Times columnist Nicholas Kristof has suggested (October 2), was that James Buchanan?* Hint: Buchanan’s policies set the stage for the American Civil War. Whoever wins the race to the bottom, the Bush administration has almost certainly presided over the most egregious run of mis-governance since the British ruled North America. While the Bush administration certainly has perpetrated bad government, a major task facing them new Obama administration is to track down the legacy of this mis-governance, the secret paper trail and hidden deeds that must be rescinded so that we can once again be a nation of laws.
Where did the mis-governance come from? There are both proximate and immediate causes. As Thomas Frank writes in The Wrecking Crew: How Conservatives Rule, it starts with conservative ideology, includes the Republican disdain for big government, and flourishes with the general American cynicism about government. Frank captures that spirit by citing former Majority Leader Tom DeLay (R-Tex.) during the great 1994 budget fight: “By the time we finish this power game, there may not be a federal government left, which would suit me just fine.” What actually has happened under the Bush administration is just as bad: its ideological predispositions, along with its particular governing coalition, have succeeded not in destroying the federal government, but in wholesale abuse of its purposes. Alan Wolfe put it this way in an article in the July-August 2006 Washington Monthly: “Conservatives have different motives for wanting power. One is to prevent liberals from [using government to solve problems]; if government cannot be made to disappear, at least it can be prevented from doing any good.” With the dedicated help of Vice President Dick Cheney, the administration certainly prevented a lot of good while carrying out an unprecedented range of mis-governance.
The immediate source of mis-governance began with John Yoo’s radical, and doubtfully constitutional, interpretation of the “unitary executive,” propounded when he served in the Department of Justice Office of Special Counsel—the office that prepares legal opinions for the White House, in this case for the disposition of suspected terrorists captured after 9/11. Yoo’s interpretation of an all-powerful executive was carried over the course of two presidential terms to its logical and unconstitutional extremes by Cheney and his chief of staff, David Addington.
The new Obama administration has promised to find and retract the rules and executive orders based on a theory of executive power that put the president above the law and allowed multiple abuses of the governing process. The secrecy enshrouding these orders is likely to make the retraction process exceedingly long and difficult.
Though Yoo’s first memo is said to have been withdrawn, subsequent directives from him and other Bush administration lawyers remain in place. Cumulatively, these dismissed the strictures of the Geneva Conventions, international and domestic laws, and authorized the detention without legal protection of “enemy combatants” at Guantánamo and other prisons. Yoo argues that in time of war the president’s powers are not subject to congressional or other legal limitations; in other words, there are no constitutional limits on his exercise of power. This is what “legally” allows imprisonment without habeas corpus and abuse and torture of detainees, and this is what explains the administration’s steady resistance to Supreme Court decisions that have ruled the lack of judicial process unconstitutional.
Continuing assurances from the White House to the CIA, and perhaps other government agencies, have given legal protections to government agents for illegal and unethical treatment of prisoners. That the CIA requested such assurances indicates a well-honed instinct to protect its agents by getting cover from the White House for practices the administration demanded and the agency regarded as illegal. As time passed, the theory of the unitary executive was used to evade the efforts of Congress and the Pentagon to reassert a legal regime for enemy combatants. Yet how can there be a legal regime if the president is above the law and free to exonerate criminal behavior by government officials and agents even as it is taking place? This exoneration may effectively short-circuit future efforts to prosecute criminal acts. That is but one outcome of Yoo’s theory of the unitary executive.
The practices set loose by Yoo’s interpretation did not end with Guantánamo and enemy combatants. Putting the theory to work throughout the executive branch, Cheney and Addington have created a top-secret cache (locked away in their office safes) of directives, permissions, and authorizations, governing not only the war on terror, but also a broad range of executive-branch responsibilities, from the environment (for example, overruling Congress and scientists on mercury levels and carbon emissions), to intelligence gathering (for example, collecting without judicial warrants the phone, Internet, and e-mail communications of Americans and foreigners), to personnel decisions (firing federal attorneys who declined to pursue politically motivated charges of voter fraud). As this administration enters its final days, there are leaks about secret authorizations to attack terrorists in other nations, some of which have been carried out—secretly (New York Times, November 10).
So surreptitious are Cheney and Addington that executive-branch officials have been denied review of the very documents that legitimate their work, some of it, as these officials suspect, of dubious legality. When the National Security Agency’s acting general counsel and inspector general went to the Justice Department to audit the documents prepared by the Office of Legal Counsel authorizing the agency’s warrantless wiretapping, Addington shouted, “This is the president’s program,” and dismissed the two with “This is none of your business.” Of course, it was their business; they had every right to examine the basis of the NSA’s authorization to scoop up information without warrants (see Barton Gellman’s Angler: The Cheney Vice Presidency).
The same argument about executive power has been deployed to justify Bush’s multiple signing statements. These statements, made when the president signs a bill, announce which parts of the legislation he will not enforce, or to which he attaches his own interpretation—quite apart from what Congress intended. This administration did not invent signing statements, but its use of the practice exceeds all preceding administrations (Bush has issued 1,100 signing statements; all previous presidents combined have issued 600).
The Bush signing statements have been justified by the claim that the Congress has in these instances placed “unconstitutional constraints on presidential power.” What are some examples? Most recently, according to a report in the New York Times (October 14), the inspectors general of executive-branch agencies were given the right by Congress to have the advice of their own lawyers in conducting investigations of the agency itself. On the contrary, the president’s signing statement argued that such lawyers would be bound to follow the legal interpretations of the politically appointed counsel at each agency. This means that the watchdogs of executive agencies, such as the Department of Defense, the NSA, the CIA, and the State Department do not have independent counsel but are subject to the views of lawyers appointed by the party in power—in this case, the Bush administration.
Without transparency, without the ability to see the legal or regulatory underpinnings of a policy, it is extremely hard to assess whether the policy and its attendant projects are working—or, as in these cases, whether they are legal. In short, there is no accountability. The Department of Homeland Security, now the largest government agency, will not submit directly to Congress a report on its activities as they relate to privacy issues; the secretary, Michael Chertoff, informed Congress that this “infringed on the president’s powers” (New York Times, October 24). Karl Rove and Harriet Miers, former members of the White House staff, will not turn over documents concerning the firing of eight U.S. attorneys, citing executive privilege. David Addington sneers at congressional inquiries about a range of such issues. That’s executive privilege.
The Bush administration will be gone January 20, but its legal interpretations will live on. Ferreting out the illegal directives and secret misdeeds may not be the most critical issue the new administration faces, but it will be vital to good governance to track down and rescind the directives given to the CIA, the NSA, and other agencies, including those that permit attacks around the world by Special Forces. Unless they are reined in, these misbegotten practices will live on.
Buried in this problem, of course, are the consequences for elected officials and government agents who have broken the law. CIA agents, and others, have the exculpatory statements from the White House, which may stand up in court. Punishment for the higher-ups will not be at the top of a new Washington agenda. (Of course, the president may pardon those involved before leaving office.)
Don’t expect to hear “Off with their heads” or “Send them to The Hague”: the new administration will not want to get bogged down in highly partisan attacks. But a new attorney general and a restored Justice Department will be in a position to reverse the legal opinions that have led to so much mis-governance and the abuse of so many people. That should be a top priority.
* The print version of this article gave an incorrect date for Kristof's column.