International Herald Tribune, Wednesday, November 21, 2001
The Sept. 11 terrorist attacks and the war in Afghanistan have dramatically accelerated a push by the Bush administration to strengthen presidential powers, giving George W. Bush a dominance over American government exceeding that of other post-Watergate presidents and rivaling even Franklin Roosevelt's command.
On a wide variety of fronts, the administration has moved to seize power that it has shared with other branches of government. In foreign policy, Mr. Bush announced vast cuts in the U.S. nuclear arsenal but resisted putting the cuts in a treaty - thereby averting a Senate ratification vote. In domestic policy, the administration proposed reorganizing the Immigration and Naturalization Service without the congressional action lawmakers sought. And in legal policy, the administration seized the judiciary's power as Mr. Bush signed an order allowing terrorists to be tried in military tribunals.
Those actions, all taken last week, build on earlier Bush efforts to augment White House power, including initiatives to limit intelligence briefings to members of Congress, take new spending authority from the legislature, and expand the executive branch's power to monitor and detain those it suspects of terrorism.
Presidential power ebbs and flows historically and, by necessity, typically heightens during times of war because of the need for a unifying figure in government. Lyndon Johnson gained clout under the Tonkin Gulf resolution, as did Mr. Roosevelt during World War II. The War Powers Act and other reforms by Congress to limit presidential power after Watergate made for weaker executives, as did the reduced threat from the Soviet Union.
Now, in the views of many scholars, Mr. Bush has restored the "Imperial Presidency," a term Arthur Schlesinger Jr. used to describe Richard Nixon's administration in 1973.
"The power President Bush is wielding today is truly breathtaking," said Tim Lynch, director of the Project on Criminal Justice at the libertarian Cato Institute. "A single individual is going to decide whether the war is expanded to Iraq. A single individual is going to decide how much privacy American citizens are going to retain."
The White House says an increase in presidential power is the correct prescription for a crisis. "The way our nation is set up, and the way the constitution is written, wartime powers rest fundamentally in the hands of the executive branch," said the White House press secretary, Ari Fleischer. "It's not uncommon in time of war for a nation's eyes to focus on the executive branch and its ability to conduct the war with strength and speed."
The public - and Congress - seems content for Mr. Bush to assume as much power as he desires. He had 90 percent approval ratings in polls even before last week's dramatic progress in the Afghanistan campaign, and congressional leaders have mustered little resistance to the administration's bid to increase power in the interests of national security.
Even before Sept. 11, the Bush administration had been looking for ways to reassert presidential prerogatives, particularly in its relationship to Congress - which some in the administration believe grew too powerful during the Clinton and Reagan years and first Bush administration.
"Every administration resets the balance with Congress as times change," said Mr. Fleischer. "When the executive branch gets itself into trouble, the congressional role, particularly the one on the investigative side, grows. The nation grew weary of endless investigations and fishing expeditions."
Thus the administration declined to cooperate with a General Accounting Office inquiry into Vice President Dick Cheney's energy task force, and cooperated with a Senate request for information on new environmental regulations only after a subpoena threat.
Seeking to restore "executive privilege," the administration refused to hand over to Congress many executive papers - even some from the Clinton administration.
David Walker, a Republican who is director of the General Accounting Office, the investigative arm of Congress, said: "There's a feeling of some in the current administration that they want to draw a line in a different spot than previously has been drawn in the separation of powers. As a result of Watergate and the challenges Clinton had, Congress has been much more involved in a range of areas they don't believe are appropriate."
This pattern of consolidating presidential authority has extended to other areas of governance. Mr. Bush issued an executive order allowing a sitting president to block release of a predecessor's records, undermining a law Congress passed about such papers. When an open-meeting law prevented Mr. Bush's Social Security commission from meeting privately, the group split into two so the law would not apply.
In foreign affairs, the administration has shown a distaste for international treaties that require congressional ratification, recently rejecting amendments to the Biological Weapons Convention in favor of actions that wouldn't require legislative approval. The events of Sept. 11 have accelerated the trend, prompting the administration to pursue an array of new powers to combat terrorism and bolster domestic security.
Mr. Bush has opposed Congress' granting statutory authority to Tom Ridge, the homeland security director, which has allowed Mr. Ridge to refuse congressional requests for him to testify. And Mr. Bush's Justice Department decided, without the usual waiting period for public comment, that it could listen in on lawyer-client conversations if Attorney General John Ashcroft believes it necessary to prevent terrorism.
That move followed congressional approval of the USA Patriot Act, which makes it easier for the government to monitor, search, detain or deport suspects and gives the Justice Department more power to detain immigrants without charges.
In the counterterrorism campaign overseas, Mr. Bush ordered sensitive intelligence briefings to be limited to eight of the 535 members of Congress, leading lawmakers to complain Mr. Bush had violated the 1947 National Security Act. Senator Chuck Hagel, Republican of Nebraska, said, Mr. Bush "put out a public document telling the world he doesn't trust the Congress." The president backed down after lawmakers promised not to leak information.
The administration has had mixed success pursuing more control over fiscal policy. In mid-October, when Mr. Bush requested authority for the president to extend government funding if Congress could not convene because of a crisis, Congress balked. Lawmakers also objected to an initial administration proposal, after the attacks on the World Trade Center and the Pentagon, for what amounted to a blank check from Congress.
As it is, Congress gave the administration $40 billion to spend in response to the attacks with few strings attached. Even so, lawmakers have complained that the administration has not provided, as required, information on how it is spending the money.
Scholars say history offers ample precedent for a wartime expansion of presidential power. "Crisis seeks leadership," said Charles Jones, a presidential scholar with the University of Wisconsin. "The only question becomes is the White House prepared to accept it and use it effectively. This team has an above-average record so far."
