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Academy Chicago Publishers recently published the report as a book, titled George W. Bush versus the U.S. Constitution. Below, In These Times has excerpted the book’s foreword by Rep. Conyers, who explains the dangers to the Constitution posed by the Bush administration’s assertion of a “unitary executive.”
Views > October 24, 2006 > Web Only
George W. Bush v. The U.S. Constitution
By Rep. John Conyers (D-Mich.)
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Scandals such as Watergate and Iran-Contra are widely considered to be constitutional crises, in the sense that the executive branch was acting in violation of the law and in tension with the majority party in the Congress. But the system of checks and balances put in place by the Founding Fathers worked, the abuses were investigated, and actions were taken—even if presidential pardons ultimately prevented a full measure of justice.
The situation we find ourselves in today under the administration of George W. Bush is systemically different. The alleged acts of wrongdoing my staff has documented—which include making misleading statements about the decision to go to war; manipulating intelligence; facilitating and countenancing torture; using classified information to out a CIA agent; and violating federal surveillance and privacy laws—are quite serious. However, the current majority party has shown little inclination to engage in basic oversight, let alone question the administration directly. The media, though showing some signs of aggressiveness, is increasingly concentrated and all too often unwilling to risk the enmity or legal challenge from the party in charge. At the same time, unlike previous threats to civil liberties posed by the Civil War (suspension of habeas corpus and eviction of Jews from portions of the Southern States); World War I (anti-immigrant “Palmer Raids”); World War II (internment of Japanese-Americans); and the Vietnam War (COINTELPRO); the risks to our citizens’ rights today are potentially more grave, as the war on terror has no specific end point.
Although on occasion the courts are able to serve as a partial check on the unilateral overreaching of the executive branch—as they did in the recent Hamdan v. Rumsfeld decision invalidating the president’s military tribunal rules—the unfortunate reality remains that we are a long way from being out of the constitutional woods under the dangerous combination of an imperial Bush presidency and a compliant GOP Congress. I say this for several reasons. The Hamdan decision itself was approved by only five justices (three justices dissented, and Chief Justice Roberts recused himself because he had previously ruled in favor of the administration) and was written by 86-year old Justice Stevens. In the event of his retirement in the next two years, the Court’s balance would probably be tipped as he would undoubtedly be replaced by another justice in the Scalia-Thomas-Roberts-Alito mode, favoring an all-powerful “unitary” executive. In the very first hearing held on the decision, the administration witness testified that “the president is always right,” and severely criticized the Court’s decision. The Republican majority also appears poised to use the decision to score political points rather than to reassert congressional prerogatives: that House Majority Leader Boehner disingenuously declared the case “offers a clear choice between Capitol Hill Democrats who celebrate offering special privileges to violent terrorists, and Republicans who want the president to have the necessary tools to prosecute and achieve victory in the Global War on Terror.”
Thus, notwithstanding the relevance of the Hamdan decision, I believe our Constitution remains in crisis. We cannot count on a single judicial decision to reclaim the rule of law or resurrect the system of checks and balances envisioned by the Founding Fathers. Rather, we need to restore a vigilant Congress, an independent judiciary, a law-abiding president, and a vigorous free press that has served our nation so well throughout our history.
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