There was far too soon a willingness to focus on how to amend the Foreign Surveillance Act, rather than deal with the outright and obvious violations of it that had been taking place in secret on the President’s order for several years. There has yet to be either a serious attempt at investigating and pursuing possible criminal charges, nor has there been much investigation into the full scope of the violations – even when it became clear that there was much more that had been done without congressional approval and judicial allowance as more information was leaked and dug up.
The firing of attorneys, warrantless surveillance, the use of questionable interrogation techniques and the extensive use of “signing statements” and “executive privilege” to wriggle the executive branch out of the oversight and will of the legislative branch – these were some of the issues which were placed – largely by Democrats – on the political agenda of hearings and debates.
However, what was rarely addressed was that all these “oversteps” of the administration was attempts of pushing the limits, to – if successful – increase the room of presidential authority and control.
Nor were they rebutted the way necessary to ensure that the legislative branch did not loose power to the executive. There was too much willingness to see it all as the result of bad legal advise, and they either couldn’t or wouldn’t go to the same lengths to force compliance with subpoenas, accountability or oversight that their Republican colleagues, the President and his staff has used to further their political objectives.
It is true that some laws were amended and bills were passed after the Democratic took back both Houses, to fill some of the dangerous loopholes in the wording that allowed for far too much unaccountability and far too little insight.
But by that time there had been so many presidential signing statements, unchecked classifications, claims of State Secrets Privilege, executive privilege, passed bills and set precedents.
As already discussed, part of the strategy to change the political rules of the governing of USA was to aggressively push existing laws and interpretations of what was legal. By getting away with it, new precedents would be set that basically would mean a victory for the unitary executive camp.
It is always something to expect that in some cases there would be some resistance, and even complete failures. But what mattered was that overall the Bush administration would end with a net win for the home team.
If even aspects of this push for power that did end up in congressional debates and hearings largely is yet to be fully pursued, more subtle aspects went basically without any notice although there were exceptions – mainly individuals within media and congress.
Although it has not been pushed that far yet, there have been some changes made to the highest judicial authority, which could prove beneficial to the preservation of the gains, made for the unitary executive camp.
The Bush administration would come to nominate two Justices to the Supreme Court between 2000 and 2008 – Justice Samuel Alito in 2006 and Chief Justice John Roberts in 2005. During the confirmation hearings in 2005 for Samuel Alito - many questions aimed at probing Alito’s ideas on the power of the executive vis-a-vi the legislative branch. Senate Judiciary ranking member Patrick Leahy voted against Alito's nomination to the Supreme Court because he believed the nominee would not be a check on presidential power. Alito was ultimately confirmed with all but one republicans voting for him while nearly all the Democrat minority’s Senators voted against him – many explicitly stating reasons along the same line as Leahy. All Republican Senators eventually approved Chief Justice Roberts while the Democrat Senators split in half. Democrat Senator Edward Kennedy, who voted against the nomination, later wrote an op-ed stating that both Robert and Alito had proven his misgivings right: “they voted to expand the power of the president, reduce restrictions on abusive police tactics and approve federal intrusion into issues traditionally governed by state law”.
Another subtle shift is how presidential signing statements went from being mere rhetoric posturing and policy expressions from the President to possibly having legal impact.
Washington Post published an article 2 January 2006 concerning this, and the role played by one of the Bush appointees for the Supreme Court – Supreme Court Justice Samuel Alito:
“As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. tried to help tip the balance of power between Congress and the White House a little more in favor of the executive branch….//… In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy [which] laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law…//… The idea was to flag constitutional concerns and get courts to pay as much attention to the president's take on a law as to "legislative intent."
It was clear also that Alito was well aware of the increase in presidential power it would mean should his strategy succeed. He also anticipated that the Congress might have objections to it should they become aware of what was underway. Washington Post quotes Alito’s memo:
"The novelty of the procedure and the potential increase of presidential power are two factors that may account for this anticipated reaction," he wrote. "In addition, and perhaps most important, Congress is likely to resent the fact that the president will get in the last word on questions of interpretation."
Next Page 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
