[Congressional Record Volume 152, Number 87 (Thursday, June 29, 2006)]
[Extensions of Remarks]
[Pages E1336-E1339]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   ``POWER GRAB,'' BY ELIZABETH DREW

                                 ______
                                 

                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                        Thursday, June 29, 2006

  Mr. CONYERS. Mr. Speaker, as Benjamin Franklin left the 
Constitutional Convention, which had been closed to the public, a 
citizen asked: ``What kind of Government have you given us, Mr. 
Franklin?'' Franklin replied, ``A Republic, Madam, if you can keep 
it.''
  In last week's New York Review of Books, Elizabeth Drew, one of our 
most distinguished political analysts, discusses President Bush's 
``Power Grab.'' She forcefully reminds us that, to paraphrase Franklin, 
the Constitution gives Congress power co-equal with the President, but 
only if Congress can keep it.
  Drew illustrates in painful but accurate detail how Congress 
repreatedly has stood by and allowed Bush to erode our constitutional 
powers, one bit at a time.
  Drew's particular focus is on President Bush's drastically expanded 
use of so-called ``signing statements,'' in which he asserts a 
statute's version he plans to follow, his own version. President Bush 
tries to claim the power to ``make all laws,'' as well as his 
constitutionally assigned role to ensure the ``laws be faithfully 
executed.'' He did not originate the practice, but his use of it is 
unprecedented in frequency, scope, and defiance of clear legislative 
intent. This is not a partisan issue. When President Bush reluctantly 
signed the recent statute banning torture, but then insisted that he 
would authorize non-existent exceptions, members of both parties 
disputed the practice.
  As Drew explains, Bush's claim of ``inherent authority'' to ignore 
the law knows no bounds, no time frame or limiting principle. The 
genius of our system of government is its separation of powers and its 
structure of checks and balances. That structure is at risk today.
  I urge my colleagues to ponder Elizabeth Drew's timely warning.

           [From the New York Review of Books, June 22, 2006]

                               Power Grab

                          (By Elizabeth Drew)

       During the presidency of George W. Bush, the White House 
     has made an unprecedented reach for power. It has 
     systematically attempted to defy, control, or threaten the 
     institutions that could challenge it: Congress, the courts, 
     and the press. It has attempted to upset the balance of power 
     among the three branches of government provided for in the 
     Constitution; but its most aggressive and consistent assaults 
     have been against the legislative branch: Bush has time and 
     again said that he feels free to carry out a law as he sees 
     fit, not as Congress wrote it. Through secrecy and 
     contemptuous treatment of Congress, the Bush White House has 
     made the executive branch less accountable than at any time 
     in modem American history. And because of the complaisance of 
     Congress, it has largely succeeded in its efforts.
       This power grab has received little attention because it 
     has been carried out largely in obscurity. The press took 
     little notice until Bush, on January 5 of this year, after 
     signing a bill containing the McCain amendment, which placed 
     prohibitions on torture, quietly filed a separate 
     pronouncement, a ``signing statement,'' that he would 
     interpret the bill as he wished. In fact Bush had been 
     issuing such signing statements since the outset of his 
     administration. The Constitution distinguishes between the 
     power of the Congress and that of the president by stating 
     that Congress shall ``make all laws'' and the president shall 
     ``take care that the laws be faithfully executed.'' Bush 
     claims the power to execute the laws as he interprets them, 
     ignoring congressional intent.
       Grover Norquist, a principal organizer of the conservative 
     movement who is close to the Bush White House and usually 
     supports its policies, says, ``If you interpret the 
     Constitution's saying that the president is commander in 
     chief to mean that the president can do anything he wants and 
     can ignore the laws you don't have a constitution: you have a 
     king.'' He adds, ``They're not trying to change the law; 
     they're saying that they're above the law and in the case of 
     the NSA wiretaps they break it.'' A few members of Congress 
     recognize the implications of what Bush is doing and are 
     willing to speak openly about it. Dianne Feinstein, 
     Democratic senator from California, talks of a ``very broad 
     effort'' being made ``to increase the power of the 
     executive.'' Chuck Hagel, Republican senator from Nebraska, 
     says: ``There's a very clear pattern of aggressively 
     asserting executive power, and the Congress has essentially 
     been complicit in letting him do it. The key is that Bush has 
     a Republican Congress; of course if it was a Clinton 
     presidency we'd be holding hearings.''
       The public scenes of the President surrounded by smiling 
     legislators whom he praises for their wonderful work as he 
     hands out the pens he has used to sign the bill are often 
     utterly misleading. The elected officials aren't informed at 
     that time of the President's real intentions concerning the 
     law. After they leave, the President's signing statements--
     which he does not issue verbally at the time of signing--are 
     placed in the Federal Register, a compendium of U.S. laws, 
     which members of Congress rarely read. And they are often so 
     technical, referring as they do to this subsection and that 
     statute, that they are difficult to understand.
       For five years, Bush has been issuing a series of signing 
     statements which amount to a systematic attempt to take power 
     from the legislative branch. Though Ronald Reagan started 
     issuing signing statements to set forth his own position on a 
     piece of legislation, he did it essentially to guide possible 
     court rulings, and he only occasionally objected to a 
     particular provision of a bill. Though subsequent presidents 
     also issued such statements, they came nowhere near to making 
     the extraordinary claims that Bush has; nor did they make 
     such statements nearly so often.
       According to an article in The Boston Globe, Bush has 
     claimed the right to ignore more than 750 laws enacted since 
     he became president. He has unilaterally overruled Congress 
     on a broad range of matters, refusing, for example, to accept 
     a requirement for more diversity in awarding government 
     science scholarships. He has overruled numerous provisions of 
     congressional appropriations bills that he felt impinged on 
     his executive power. He has also overruled Congress's 
     requirement that he report back to it on how he has 
     implemented a number of laws. Moreover, he has refused to 
     enforce laws protecting whistle-blowers and providing 
     safeguards against political interference in federally funded 
     research. Bush has also used signing statements to place 
     severe limits on the inspectors general created by Congress 
     to oversee federal activities, including two officials who 
     were supposed to inspect and report to Congress on the US 
     occupation of Iraq.

[[Page E1337]]

       The President could of course veto a bill he doesn't like 
     and publicly argue his objections to it. He would then run 
     the risk that Congress would override his veto. Instead, Bush 
     has chosen a method that is largely hidden and is difficult 
     to challenge. As of this writing, Bush has never vetoed a 
     bill (though he has threatened to do so in the case of a 
     spending bill now pending in Congress). Some of the bills 
     Bush has decided to sign and then ignore or subvert were 
     passed over his objections; others were the result of 
     compromises between Congress and the White House. Arlen 
     Specter, the Republican senator from Pennsylvania and 
     chairman of the Senate Judiciary Committee, told me, ``Under 
     the Constitution if the president doesn't like a bill he 
     vetoes it. You don't cherry-pick the legislation.''
       Bush has cited two grounds for flouting the will of 
     Congress, or of unilaterally expanding presidential powers. 
     One is the claim of the ``inherent'' power of the commander 
     in chief.
       Second is a heretofore obscure doctrine called the unitary 
     executive, which gives the president power over Congress and 
     the courts. The concept of a unitary executive holds that the 
     executive branch can overrule the courts and Congress on the 
     basis of the president's own interpretations of the 
     Constitution, in effect overturning Marbury v. Madison 
     (1803), which established the principle of judicial review, 
     and the constitutional concept of checks and balances.
       The term ``unitary government'' has two different meanings: 
     one simply refers to the president's control of the executive 
     branch, including the supposedly independent regulatory 
     agencies such as the SEC and the FDA. The other, much broader 
     concept, which is used by Bush, gives the executive power 
     superior to that of Congress and the courts. Previous 
     presidents have asserted the right not to carry out parts of 
     a bill, arguing that it impinged on their constitutional 
     authority; but they were specific both in their objections 
     and in the ways they proposed to execute the law. Clinton, 
     for example, objected to provisions in a bill establishing a 
     semi-autonomous National Nuclear Security Administration, 
     which set out the reasons for removing the director. Clinton 
     objected that that impinged on his presidential prerogatives. 
     Bush asserts broad powers without being specific in his 
     objections or saying how he plans to implement the law. His 
     interpretations of the law, as in his ``signing statement'' 
     on the McCain amendment, often construe the bill to mean 
     something different from--and at times almost the opposite 
     of--what everyone knows it means.
       The concept of the unitary executive, which has been put 
     forward in conservative circles for several years, has been 
     advocated mainly by the Federalist Society, a group of 
     conservative lawyers who also campaign for the nomination of 
     conservative judges. The idea was seriously considered in the 
     Reagan administration's Justice Department. One of its major 
     supporters was Samuel Alito, then a lawyer in the Justice 
     Department. In his confirmation hearing, Alito said that the 
     memorandum he wrote saying that the president's 
     interpretation of a bill ``should be just as important as 
     that of Congress'' was ``theoretical.'' But no president 
     until Bush explicitly claimed that the concept of a unitary 
     executive was a basis for overruling a bill.
       The theory was formulated by John Yoo, a mid-level but 
     highly influential attorney in the Justice Department between 
     2001 and 2003, who took the view that the president had the 
     power to do pretty much whatever he wanted to do. (He also 
     wrote the infamous memorandum defending what amounted to 
     torture.) As White House counsel, Alberto Gonzales, now 
     attorney general, also publicly supported the theory of the 
     unitary executive.
       The theory rests on the Oath of Office, in which, according 
     to the Constitution, the newly elected president promises to 
     ``faithfully execute the office of President,'' and also on 
     the section of Article II that states that the president 
     ``shall take care that the laws be faithfully executed.'' The 
     administration has put forward unprecedented interpretations 
     of both clauses, claiming that they give the president 
     independent authority, unchecked by the other branches of 
     government, to decide what the law means. This theory 
     overlooks the fact that the framers were particularly wary of 
     executive power. A number of constitutional scholars I have 
     spoken with describe the administration's theory of the 
     unitary executive as no more than a convenient fig leaf for 
     enlarging presidential power.
       Bush's claims of extraordinary power as commander in chief 
     have been mainly invoked since September 11, 2001. He was 
     able to exploit the anxieties the attacks had stirred, 
     causing people to look to the President to defend them. 
     Senator Jack Reed, Democrat of Rhode Island, recalled that 
     everyone ``looked to the presidency, not to the 535 senators 
     and congressmen, to protect them from a further crippling 
     attack and suspended their mistrust of government. So they 
     [the administration] took great power, which has to be 
     handled wisely, but they didn't.''
       It is under the authority of his powers as commander in 
     chief that Bush asserted the right to keep nearly five 
     hundred ``enemy combatants'' in detention in Guantanamo, of 
     whom only ten were charged with a crime. Most were handed 
     over by Afghan bounty hunters who were paid by the U.S. to 
     turn in Arabs. Bush has also asserted the same authority in 
     dealing with numerous bills passed by Congress, most 
     spectacularly in his treatment of the McCain amendment 
     banning ``cruel, inhuman or degraded treatment'' of POWs. In 
     his signing statement, Bush said: ``The executive branch 
     shall construe [the torture provision] in a manner consistent 
     with the constitutional authority of the President to 
     supervise the unitary executive branch and as Commander in 
     Chief and consistent with the constitutional limitations on 
     the judiciary * * *''
       This general formula had by then become a standard part of 
     Bush's signing statements, though few noticed. What Bush said 
     about the torture bill was particularly egregious since Vice 
     President Cheney, Bush's liaison with Congress, had tried to 
     negotiate with the Senate a provision watering down McCain's 
     amendment, and failed. The Senate passed it by a vote of 90 
     to 9, and the House endorsed it by a vote of 308 to 122. It 
     had been an open, well-publicized fight and the President 
     lost.
       In late February, shortly after Bush's signing statement on 
     the McCain amendment, the Constitution Project, a bipartisan, 
     nonprofit organization in Washington, issued a protest signed 
     by former government officials of both parties, prominent 
     conservatives, and scholars, saying that they ``are deeply 
     concerned about the risk of permanent and unchecked 
     presidential power, and the accompanying failure of Congress 
     to exercise its responsibility as a separate and independent 
     branch of government.'' They objected to Bush's assertions 
     that he ``may not be bound'' by statutes enacted by Congress, 
     such as the McCain amendment, and that he can ignore ``long-
     standing treaty commitments and statutes that prohibit the 
     torture of prisoners.'' It concluded that ``we agree that we 
     face a constitutional crisis.''
       Another egregious use of the signing statements occurred 
     when Bush said in March that, in interpreting the bill 
     reauthorizing the Patriot Act, he would ignore the 
     requirement that the president report to Congress on the 
     steps taken to implement the law, thus denying that the 
     executive should be accountable to Congress. Patrick Leahy, 
     the ranking Democrat on the Senate Judiciary Committee, 
     issued an angry protest calling Bush's use of signing 
     statements ``nothing short of a radical effort to re-shape 
     the constitutional separation of powers and evade 
     accountability and responsibility for following the law.'' 
     Leahy added, ``The President's signing statements are not 
     the law, and we [the Congress] should not allow them to 
     become the last word.''
       Bush went still further in his extraordinary claim of 
     supreme power on December 17, 2005, when he acknowledged 
     that, as revealed in The New York Times the day before, the 
     government was conducting warrantless wiretapping of domestic 
     calls. He claimed that he had the power to order such taps 
     ``to save lives,'' regardless of what the existing law said.
       His claim rested on two contradictory arguments. First, he 
     said that warrantless wiretaps were authorized in the 
     resolution enacted three days after September 11, which said 
     that the president could ``use all necessary and appropriate 
     force'' to combat al-Qaeda. But the administration also 
     argued that it didn't need authorization because of the 
     inherent powers of the commander in chief. Former Senate 
     Majority Leader Tom Daschle wrote that the administration had 
     asked for a much broader resolution on the use of force than 
     the one Congress approved. At the last minute the White House 
     sought to have the resolution also include actions ``in the 
     United States'' but was turned down.
       One problem with the President's claims of extraordinary 
     powers as commander in chief is that the ``war on terror'' is 
     by definition an open-ended one, with no time limit on the 
     president's powers, as Bush interprets them, to do virtually 
     whatever he wants in order to conduct that war. There are 
     undefined limits on how far the legislature can go in 
     instructing the president on how to conduct a war; clearly it 
     cannot tell him how to deploy combat troops. But during the 
     Vietnam War, Congress used the power of the purse, voting to 
     cut off funds. The Nixon administration didn't argue that 
     Congress had no power to do so.
       There is no way of knowing how many other laws already on 
     the books are being reinterpreted by Bush, as he's done in 
     the case of the NSA wiretapping program. The Foreign 
     Intelligence Surveillance Act, or FISA, passed in 1978 after 
     the Supreme Court had unanimously rejected as illegal Richard 
     Nixon's domestic wiretapping, set forth what it said were the 
     ``exclusive means'' by which an administration could conduct 
     surveillance on Americans. The FISA law set up a special, 
     secret court that could grant the government permission to 
     wiretap American citizens after a showing of probable cause. 
     One of the administration's justifications for initiating a 
     wiretapping program outside the FISA law is that taps on 
     potential terrorists must be initiated speedily; but the FISA 
     law gives the executive three days to conduct a warrantless 
     tap in an emergency and fifteen days if there's been a 
     declaration of war. Gonzales complains that the law is too 
     burdensome, since the attorney general still has to sign off 
     on emergency taps and that they have to meet FISA standards. 
     (A Republican senator, upon being told these complaints, 
     said, ``So what's the problem?'') But the FISA law has been 
     amended twice since it was enacted and the administration has 
     never specifically and clearly asked Congress to revise the 
     law to take account of changed circumstances.
       The administration's wiretapping program appears to violate 
     the Fourth Amendment's

[[Page E1338]]

     guarantee that ``the right of the people to be secure in 
     their persons, houses, papers, and effects, against 
     unreasonable searches and seizures, shall not be violated, 
     and no warrants shall issue, but upon probable cause. . . .'' 
     The original impetus for the Bush program reportedly came 
     from General Michael V. Hayden, then head of the National 
     Security Agency, which collects information in the name of 
     national security, and Bush's nominee to head the CIA. Hayden 
     told a receptive White House that the NSA counsel had said 
     the program was legal. The government claims that if a member 
     of al-Qaeda, or of a group ``supportive of'' al-Qaeda, calls 
     or e-mails someone in the United States, or if someone in the 
     U.S. initiates the conversation, the government, which could 
     already tap the suspected terrorist, can now tap the U.S. 
     resident as well. This raised the question whether that U.S. 
     citizen's other calls would be tapped.
       In a press briefing given at the White House by Gonzales 
     and Hayden on January 19 this year, Gonzales emphasized that 
     ``one party to the communication has to be outside the United 
     States'' and insisted there has to be ``a reasonable basis'' 
     for concluding that one party to the communication is 
     affiliated with or ``supportive of'' al-Qaeda, an extremely 
     vague standard. And the administration is now making that 
     decision, not the FISA court. Gonzales, moreover, has told 
     congressional committees that he couldn't rule out that the 
     President has the authority to wiretap purely domestic calls. 
     Asked why the administration didn't go to Congress for 
     authorization to wiretap domestic calls in terrorism cases 
     without seeking a warrant, Gonzales replied: ``We have had 
     discussions with Congress in the past--certain members of 
     Congress--as to whether or not FISA could be amended to allow 
     us to adequately deal with this kind of threat, and we were 
     advised that that would be difficult, if not impossible.'' In 
     other words, having been told that Congress was unlikely to 
     authorize the warrantless wiretaps of domestic calls, the 
     administration went ahead and did the tapping.
       The Bush administration's reaction to the revelations about 
     the wiretapping program has been to attack the leaks. In his 
     statement acknowledging the wiretapping program, Bush said, 
     ``The fact that we're discussing this program is helping the 
     enemy.'' In an attempt to limit congressional oversight, the 
     administration tried to restrict the number of members of 
     Congress it would brief on such matters.According to a 
     presidential directive issued quietly after September 11, 
     officials were to discuss highly classified information with 
     only the Republican chairman and the ranking Democrat on the 
     Senate and House Intelligence Committees--committees that 
     were established to conduct oversight on intelligence 
     activities following the CIA scandals in the mid-Seventies--
     as well as the Republican and Democratic leaders of each 
     chamber (a total of eight people) and not with the full 
     intelligence committees.
       Under the new rules, the members of this small group of 
     people weren't permitted to discuss the program with other 
     members of the intelligence committees, or with their own 
     staffs. It was for the administration to decide which 
     intelligence matters were too sensitive to discuss with the 
     entire intelligence committees. One problem with this White 
     House-imposed arrangement was that just as members of other 
     congressional committees become cozy with the government 
     agencies they are supposed to oversee, the intelligence 
     committee heads--with the notable exception of Democratic 
     Senator Jay Rockefeller, of West Virginia--are known to be 
     close to the intelligence agencies. In July 2003, 
     Rockefeller sent Cheney a handwritten letter saying that 
     the restrictions on briefings ``raise profound oversight 
     issues.''
       Rockefeller also wrote that the wiretapping program 
     recalled the highly intrusive Pentagon Total Information 
     Awareness program headed by John Poindexter, which Congress 
     voted to abolish. The resemblance, he wrote, ``exacerbat[ed] 
     my concern regarding the direction the administration is 
     moving with regard to security, technology, and 
     surveillance.'' (Rockefeller released the statement following 
     the Times's disclosure.) Earlier this year, Chuck Hagel and 
     Olympia Snowe, Republican of Maine, threatened to vote with 
     the Democrats for an investigation of the wiretapping program 
     unless the full committee was briefed on it. In early March, 
     on the eve of a scheduled vote on the matter, Cheney was 
     called to a meeting with some committee Republicans in S207, 
     the committee's highly secured room in the Capitol. The 
     Republicans, including Snowe, sharply criticized Cheney for 
     the administration's attempts to prevent other committee 
     members from being briefed about the program.
       Cheney had to report to the White House that its plan to 
     shut out all but the top committee members was no longer 
     feasible. But, working with Pat Roberts, chairman of the 
     Senate Intelligence Committee, and Senate Majority Leader 
     Bill Frist, the administration was able to limit the 
     additional committee members to be briefed to four 
     Republicans and three Democrats, still leaving most of the 
     intelligence committee members, not to mention other elected 
     officials, in the dark. On the eve of Hayden's confirmation 
     hearings, Roberts, facing a public revolt by committee 
     members of both parties, agreed that all of the committee 
     members should be briefed on the surveillance programs. This 
     was also a way of preventing committee members who hadn't 
     been briefed from asking awkward questions in public. (This 
     led to the tepid questioning of Hayden in his public 
     confirmation hearings.) Despite the briefing, in the public 
     hearing Snowe said, ``the Congress was really never really 
     consulted or informed in the manner that we could truly 
     perform our oversight role as co-equal branches of 
     government, not to mention--I happen to believe--required by 
     law.''
       In March, after the Senate Intelligence Committee declined 
     to hold hearings on the matter, Arlen Specter, Republican of 
     Pennsylvania, convened four days of hearings before the 
     Judiciary Committee. But Specter concluded that Gonzales's 
     testimony was too vague to be informative. In late April he 
     threatened to cut off NSA funds for the wiretapping program 
     if the administration didn't reveal more about it. Asked by a 
     reporter why he didn't call Gonzales back to appear before 
     his committee, Specter replied, ``Because he won't tell us 
     anything.'' The administration, apparently on the orders of 
     the White House, shut down a Justice Department investigation 
     into the wiretapping program.
       Bush's nomination of Hayden to be the next CIA director set 
     off an undoubtedly greater clamor than the White House 
     expected over his role in the wiretapping program and his 
     strenuous public defense of it, but the White House 
     claimed it welcomed the fight. And then another clamor was 
     set off by the revelation by USA Today that the NSA was 
     collecting the phone records of tens of millions of 
     Americans from major telephone companies. In a statement 
     to the press, Bush said the NSA wasn't listening to the 
     calls but was only tracing the pattern of contacts they 
     revealed. But it would be easy for the NSA or another 
     agency to correlate the numbers with the names of the 
     callers. In any event, the program is quite possibly 
     illegal. (Specter is to hold hearings.) These disclosures 
     led some lawmakers to wonder what else they hadn't been 
     told that the administration was doing in the name of 
     national security.
       A big congressional fight over the wiretapping program 
     would fit neatly into Karl Rove's strategy, declared earlier 
     this year to a meeting of the Republican National Committee, 
     of cynically making the issue of national security central to 
     the 2006 election, as he did in 2002. ``Republicans,'' he 
     said, ``have a post-9/11 worldview and many Democrats have a 
     pre-9/11 worldview.'' With its penchant for propagandistic 
     titles (the ``Patriot Act''), the administration calls the 
     warrantless wiretapping program the ``terrorist 
     surveillance'' program, and it imputes to its opponents the 
     view that terrorists should not be wiretapped. But of course 
     that is not the issue: most of the critics on Capitol Hill 
     are simply arguing that wiretapping programs should be 
     subject to the law. Hagel says, ``You cannot have one branch 
     of government make the decision on whose rights would be 
     violated. That's the very basis of having three co-equal 
     branches of government.''
       As for the judicial branch, the Bush administration, like 
     previous administrations, has tried to appoint judges 
     compatible with the President's views. But Bush has been 
     strikingly successful at putting extreme conservatives on the 
     bench, and probably now has four votes on the Supreme Court 
     for his ``unitary executive'' rationale for executive 
     authority over what the other branches do. His administration 
     has several times told the Supreme Court that it should not 
     hear the cases of detainees. Also by his appointments and by 
     exerting pressure Bush has bent the supposedly independent 
     regulatory agencies (the EPA, SEC, FDA, etc.) closer to his 
     political views--in his case, pro-deregulation--than any 
     president before him. The explicit rationale for these 
     agencies is that they were to be independent of both the 
     executive and Congress. There have already been two federal 
     court rulings charging the EPA with defying federal 
     environmental law.
       As for the press, Justice Department officials have 
     threatened to prosecute not only officials who leak 
     classified information, but also anyone else who simply 
     receives classified information, whether they disclose it or 
     not. Gonzales has suggested that journalists might be 
     prosecuted for disclosing classified information (for 
     example, The New York Times reporters for revealing the 
     warrantless wiretapping program). On May 16, ABC News 
     reported on its Web site that the FBI had stepped up 
     government efforts to seek reporters' phone records in 
     investigations of leaks. Many reporters and editors find it 
     ominous that the administration prosecuted two lobbyists for 
     AIPAC, the American Israel Public Affairs Committee, for 
     receiving such information (as well as passing it on to 
     Israel), and that, in early March, the FBI demanded the 
     papers of the late investigative reporter Jack Anderson.
       Cheney and his chief of staff, David Addington, formerly 
     his counsel, are understood by most informed observers to be 
     mainly responsible for the expansive interpretations of the 
     president's powers, as well as the unprecedented secrecy with 
     which the administration conducts public affairs. According 
     to The New York Times, after September 11 Cheney and 
     Addington pushed for the wiretapping of domestic calls. A 
     Republican lobbyist I talked to told me that the 
     administration's attitude on various issues is simple: ``It's 
     we just want it our way and we don't want to be bothered by 
     talking to other people about it.''
       Some Republican observers suggest that Cheney is living in 
     a time warp, reacting to what he saw as congressional 
     encroachment

[[Page E1339]]

     (including FISA) on the president's powers during the time 
     that he served in the Ford White House and as a minority 
     member of a Democratic Congress. Despite rumors of a decline 
     in his standing with Bush, Cheney remains the most powerful 
     vice-president in American history, with an octopus-like 
     reach into many parts of the government. He has placed his 
     own people in each of the national security agencies--the 
     Departments of Defense and State as well as the CIA and the 
     National Security Council. (Until she recently took a 
     maternity leave, his daughter Elizabeth was principal deputy 
     assistant secretary of state for the Near East, a position 
     that does not require Senate confirmation and from which 
     people on Capitol Hill saw her as effectively in charge of 
     the State Department's Middle East bureau.) Cheney installed 
     Porter Goss in the CIA, with orders to root out people who 
     leaked information inconvenient to the administration. It's 
     difficult, however, to know much about what Cheney is doing 
     because his office operates in such secrecy that a reporter 
     friend of mine refers to it as a ``black hole.''
       In Bush, Cheney has had a very receptive listener. Bush's 
     own overweening attitude toward the presidency is clear from 
     his behavior. He bristles at being challenged. He told Bob 
     Woodward, ``I do not need to explain why I say things. That's 
     the interesting thing about being the president. Maybe 
     somebody needs to explain to me why they say something, but I 
     don't feel I owe anybody an explanation.'' His comment, ``I'm 
     the decider,'' about not firing Rumsfeld, is in fact a phrase 
     he has used often.
       Why have the members of Congress been so timorous in the 
     face of the steady encroachment on their constitutional power 
     by the executive branch? Conversations with many people in or 
     close to Congress produced several reasons. Most members of 
     Congress don't think in broad constitutional terms; their 
     chief preoccupations are raising money and getting reelected. 
     Their conversations with their constituents are about the 
     more practical issues on voters' minds: the prices of 
     gasoline, prescription drugs, and college tuition. Or about 
     voters' increasing discontent with the Iraq war.
       Republicans know that the President's deepening 
     unpopularity might hurt them in the autumn elections; but, 
     they point out, he's still a good fund-raiser and they need 
     his help. Moreover, the Republicans are more hierarchical 
     than the Democrats, more reverential toward their own party's 
     president; it's unimaginable that Republicans would be as 
     openly critical of Bush as the Democrats were of Jimmy Carter 
     and Bill Clinton. Republicans are more disciplined about 
     delivering their party's ``talking points'' to the public. 
     Republican fund-raising is done more from the top than is 
     the case with Democrats, and there's always the implicit 
     threat that if a Republican isn't loyal to the president, 
     the flow of money to their campaigns might be cut off. A 
     Republican opponent can challenge an incumbent in a 
     primary, in which not many people vote. Here Arlen Specter 
     has shown unusual courage. He barely survived a 
     conservative challenge in the primary election in 2004 
     (though Bush supported him), and then had to beat back a 
     conservative attempt to remove him as chairman of the 
     Senate Judiciary Committee because of his views in favor 
     of abortion rights. He survived by promising not to let 
     his pro-choice views hold up the judicial nominations 
     before the committee. Specter told me, ``What I worry 
     about most is the restrictions of Congress's 
     constitutional authority, which the Congress doesn't 
     resist.''
       Bush's declining popularity can occasionally impel 
     Republicans to try to seem independent of him--as, say, on 
     the issue of Dubai being awarded a contract to administer 
     U.S. ports; after all the administration's talk about 
     security, this arrangement sounded outrageous in the American 
     heartland, and members of Congress rushed to kill it. But the 
     Republican legislators have also become convinced, in the 
     words of one Republican senator, ``We've got to hang with the 
     president because if you start splitting with him or say the 
     president has been abusing power we'll all go down.'' Karl 
     Rove has recently been arguing along these lines to 
     congressional Republicans. In the end, a Republican lobbyist 
     told me, Republican politicians feel that Bush is ``still 
     their guy.'' The fierce partisanship on Capitol Hill also 
     blocks serious discussion of the issue of unlimited executive 
     power: many Republicans have concluded that the Democrats are 
     exploiting such issues for partisan purposes and have dug in 
     against them. On May 11, at a regular weekly luncheon of 
     about twenty conservative senators, Senator Roberts denounced 
     criticism of Bush's surveillance and data-collecting programs 
     as ``dangerous'' and ``insulting'' to the President and 
     charged the Democrats with treating national security as a 
     political issue. Members of Congress who are protective of 
     their institution and capable of looking beyond their 
     parochial concerns--and who might have objected to Bush's 
     encroachments on the legislative branch--are largely gone.
       From the time of the vote on the Iraq war, many Democrats 
     have been reluctant to be caught on the ``wrong side'' of 
     ``national security'' issues, even those blatantly cooked up 
     by the White House. It usually requires a strong public 
     reaction, as there was on the subject of torture, for 
     Congress to make a move against the President's actions. A 
     Republican senator told me, ``There's a feeling on the Hill 
     that the public doesn't care about it, that it's willing to 
     give up liberties in order to defeat the terrorists.'' Some 
     of the proposals offered on Capitol Hill for regulating the 
     NSA wiretaps amount to little regulation at all.
       At the center of the current conflict over the Constitution 
     is a president who surrounds himself with proven loyalists, 
     who is not interested in complexities, and who is averse to 
     debate and intolerant of dissenters within his administration 
     and elsewhere. (A prominent Washington Republican who had 
     raised a lot of money for Bush was dropped from the Christmas 
     party list after he said something mildly critical of the 
     President.) A Republican lobbyist close to the White House 
     described to me what he called the Cult of Bush: ``This group 
     is all about loyalty and the definition of loyalty extends to 
     policy-making, politics, and to the execution of policy--and 
     to the regulatory agencies.'' The result, this man said, 
     is that the people in the agencies, including the 
     regulatory agencies, ``become robotrons and just do what 
     they're told. There's no dialogue.''
       The President's recent political weakness hasn't caused the 
     White House to back away from its claims of extraordinary 
     presidential power. The Republican lobbyist Vin Weber says, 
     ``I think they're keenly aware of the fact that they're 
     politically weakened, but that's not the same thing as the 
     institution of the presidency being damaged.'' People with 
     very disparate political views, such as Grover Norquist and 
     Dianne Feinstein, worry about the long-term implications of 
     Bush's power grab. Norquist said, ``These are all the powers 
     that you don't want Hillary Clinton to have.'' Feinstein 
     says, ``I think it's very dangerous because other presidents 
     will come along and this sets a precedent for them.'' 
     Therefore, she says, ``it's very important that Congress 
     grapple with and make decisions about what our policies 
     should be on torture, rendition, detainees, and wiretapping 
     lest Bush's claimed right to set the policies, or his 
     policies themselves, become a precedent for future 
     presidents.''
       James Madison wrote in Federalist Paper No. 47: ``The 
     accumulation of all powers legislative, executive and 
     judiciary in the same hands, whether of one, a few or many . 
     . . may justly be pronounced the very definition of 
     tyranny.''
       That extraordinary powers have, under Bush, been 
     accumulated in the ``same hands'' is now undeniable. For the 
     first time in more than thirty years, and to a greater extent 
     than even then, our constitutional form of government is in 
     jeopardy.

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