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For America's 'Decider' the Laws of War Still Apply
Although the Supreme Court has slapped down George W. Bush on the Guantanamo tribunals and his efforts to keep Congress at bay, he seems still to have adequate means to ensure that the clout of the Oval Office will not diminish. Beneath, how the tussle gained tricky ramifications.
Edward Luce
Financial Times
July 6, 2006
George W. Bush proclaimed back in April: "I'm the decider, and I decide what is best." The solecism came when the US president was explaining why he had no intention of sacking Donald Rumsfeld, his controversial defence secretary. As has happened before, Mr. Bush was roundly mocked for his unorthodox use of English. But it was a clear statement of his philosophy of government.
Mr. Bush's expansive view of presidential authority - technically known as "unitary executive doctrine" - received its biggest setback when the US Supreme Court last week acted to dismantle the tribunals set up by his administration in 2002 to try detainees held at GuantanamoBay.
The military tribunals, which denied defendants the right of judicial appeal and permitted "hearsay" as evidence, were deemed unconstitutional and in breach of the Geneva Conventions.
Critics of the administration hailed the 5-3 ruling as a mortal blow to Mr. Bush's "imperial presidency". They said it marked the beginning of the end of his campaign to recapture the presidential powers that were stripped away after the Watergate crisis in the mid-1970s.
Mr. Bush took a different slant: "I'm not going to jeopardise the safety of the American people," he said, adding that he would seek congressional authority to reconstitute the tribunals. "I will protect the people and, at the same time, conform with the findings of the Supreme Court." In other words, Mr. Bush would follow the letter but not necessarily the spirit of the ruling.
Who is right - those who believe the imperial presidency is on the retreat, or those who say the ruling makes little difference?
The Supreme Court will undoubtedly pronounce again on other aspects of Mr. Bush's "war on terror". Potential cases include the National Security Agency's warrantless eavesdropping programme, the "rendition" of terrorist suspects to countries that practise torture and the exemptions that Mr. Bush has so often invoked.
But these challenges will take months or years to work their way to America's top court. Furthermore, the court's balance is shifting in Mr. Bush's direction. Last week John Roberts, the new chief justice, recused himself from the Guantanamo hearing because he had ruled on the same case at an earlier stage (in favour of the administration). Next time Mr. Roberts' vote will count.
In addition, there are three political reasons for believing Mr. Bush will conduct the remaining 30 months of his presidency in the same manner he has since the assaults of September 11 2001.
First, public opinion remains firmly behind Mr. Bush's war on terror. In spite of a mild recovery in the last month, the president's approval ratings have been abysmally low since hurricane Katrina struck last year. Yet when asked about Guantanamo or the administration's allegedly unconstitutional monitoring of tens of millions of domestic phone logs and international money transfers, Americans largely back the White House. In a CNN poll last week, 57 per cent approved of Guantanamo.
Second, Capitol Hill has consistently been unwilling to challenge Mr. Bush's authority. This is partly because Mr. Bush's Republicans control both houses.
On the few occasions that prominent Republicans have sought to wrest back Congress's constitutional powers of oversight, they have quickly been isolated. Last month Arlen Specter, chairman of the powerful Senate judiciary committee, was abandoned by colleagues when he said he was considering issuing subpoenas to get answers about the administration's eavesdropping. Mr. Specter joked bitterly that he would have to "waterboard" officials to get them to respond. Waterboarding is an extreme form of interrogation in which the suspect is saturated to induce panic of drowning.
Meanwhile, the Democrats remain paralysed over how best to confront Mr. Bush's use of executive powers. A minority believe Mr. Bush should be impeached. But others are wary of the public's hawkish mood in the build-up to crucial midterm elections in November.
Karl Rove, Mr. Bush's strategic "boy genius", has successfully portrayed the Democrats as weak on national security. Last week Republicans said Nancy Pelosi, the Democrat leader in the House of Representatives, was soft on terrorism after she welcomed the Supreme Court verdict. Ms. Pelosi quickly changed the subject.
Finally, Mr. Bush continues to rely heavily on Dick Cheney, the most powerful vice-president in American history and arguably the principal force behind the expansion of executive authority.
Mr. Cheney was chief of staff in the 1970s to Gerald Ford, who succeeded Richard Nixon as president. Ever since, Mr. Cheney's goal has been to restore pre-Watergate presidential authority.
When in 1977 Mr. Nixon was asked his views of the president's national security powers, he said: "When the president does something, that means it is not illegal." Mr. Cheney uses words more sparingly. But at every stage since September 11 when Congress has sought to question White House officials or tactics, Mr. Cheney's office has played a central role in blocking the requests.
There is little reason to believe the Supreme Court ruling will change any of that. Last week Mr. Cheney said in a television interview: "I don't think I've changed any - I've been very consistent over time." Mr. Cheney gave no hint that he or Mr. Bush - neither of whom face election again - would alter course unless they were forced to (if, for example, the Democrats regained Capitol Hill in November).
"We're doing what we think is right," said Mr. Cheney. "And I'm very comfortable with that." The deciders, in other words, plan to do a lot more deciding.
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