W's Invisible Friend

Today is Friday, 19 October 2007.

Sorry for the absence. We enjoyed two days of glorious storms here, and as a result my joints were such as to preclude prolonged typing.

Before further reflections on the “Cuban Missile Crisis”, some thoughts provoked by the current confirmation hearings of Michael Mukasey as Attorney General.

There have always been Americans, really anti-Americans, who have lusted after a king or fuhrer to replace a Constitutional president who is the elected employee and servant of the Constitution and the American people. It is this faction which swooned when the disgraced Nixon claimed that there is “a secret reservoir of power within the Constitution”, such that “when the president does it, it means it’s not illegal”.

Josef Stalin couldn’t have put it better.

The intellectual distortions of the beliefs of the Founding Fathers which underpin this travesty, now known as the Unitary Theory of the Executive, began to take shape during the Reagan-Bush 1 regime, and achieved full poisonous flower in the early days of the Bush 2-Cheney regime. The essence of this theory is nicely encapsulated in an advisory opinion written by Deputy Assistant Attorney General John Yoo of the Office of Legal Counsel of the Department of Justice, promulgated on 25 September 2001.

Yoo claimed that “the President’s powers include inherent executive powers that are unenumerated in the Constitution”.*

Now, legal sophists such as Yoo claim to be “originalists”, creatures akin to biblical literalists. Originalists contend that the only permissible guide to interpreting the Constitution is the words of the Constitution itself, period. (Although they usually rush to quote, selectively and out of context, from The Federalist Papers in support of their distortions, thus putting the lie to their original claim.)

Obviously, the originalist position should then be that the President has only those powers, no more and no less, specifically enumerated in the words of the Constitution. Of course, they immediately violate their own principle by arguing that there are additional implied (i.e. “inherent”) powers hidden within the plain words of the Constitution, and that the President is the exclusive judge of the nature of those powers.

We’re all familiar with the phenomenon of the “invisible friends” invented by young children. “Mom and Dad, this is my invisible friend, Chester, and he says you must give me three desserts with every meal, every day”.

The proper name for the Unitary Theory of the Executive is thus the Invisible Friend Theory of the Executive. “Body politic, this is my invisible friend, Inherent Powers, and they say I have any powers I want”.

A fine summation of a second distortion of the Unitary Theory may be found in “Separation of Powers: Legislative-Executive Relations”, a memo prepared for then-Attorney General Edwin Meese, and dated 30 April 1986.

The memo “rejected the mainstream view that the Constitution creates three separate institutions and then gives them overlapping authority over the government as a means of preventing the tyranny of concentrated power. Instead, the Founders cleanly divided the powers of government, assigning to each institution exclusive control of its own universe. “The only ‘sharing of power’ is the sharing of the sum of all national government power,” the April 30 report said. “But that is not jointly shared, it is explicitly divided among the three branches.””*

In other words, the Legislative may make any laws it wishes, the Executive may execute (or not execute) those laws in any way it wishes, and the Judicial has no say over the Executive. Obviously, this view is monarchical and dictatorial, not democratic.

Now, the Bush-Cheney regime has attempted to depict Attorney General-Designate Mukasey as a nonpartisan moderate. Nothing could be further from the truth, as is demonstrated by his testimony yesterday before the Senate.

“If by illegal [acts] you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting someone within the law.”

This statement is clearly based on the Unitary/Invisible Friends Theory, asserting as it does that any president may overrule any statute on the grounds of powers not explicitly granted by the Constitution, but contained in the president’s implied and hidden powers. It also relies on the view that the power of the president as commander in chief is unlimited, whereas the Constitution clearly designates the president as commander in chief of the military only, and not of the country.

If the president is commander in chief of the entire country, with unlimitable powers, he is effectively a military dictator, and there are no civilians: every citizen is merely a subject and a combatant, and thus fair game under the rules of war.

Mukasey’s weasel-worded answer to the question as to whether waterboarding is constitutional is also noteworthy. “I don’t know what’s involved in the technique. If waterboarding is torture, torture is not constitutional”.

The man has had a law degree since 1967, and yet he requires further study before he can even begin to venture an opinion on whether repeatedly drowning a person to a point just short of death is torture or not? This is not judicious caution: it is a zealot of presidential lawlessness thumbing his nose at the Constitution and the American people.

The Unitary/Invisible Friend Theory of the Executive amounts to the overthrow of the Constitution, and thus high treason. Bush, Cheney, and all their minions should be summarily removed from power and imprisoned.

[*These quotes are from the highly, nay, urgently recommended new book, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, by Charlie Savage (Little, Brown; 2007). The Yoo quote is found at page 122; the Meese memo at page 48.]
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Reflections on the “Cuban Missile Crisis” will appear later today.