Going Backwards: In War, It's Power to the President

20 November 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 President Bush a dominance over American government exceeding that of other post-Watergate presidents and rivaling even Franklin D. 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, 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 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 B. Johnson gained clout under the Tonkin Gulf resolution, as did 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, Bush has restored the 'Imperial Presidency,' a term Arthur Schlesinger Jr. used to describe Richard M. 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," White House press secretary Ari Fleischer said. "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 - seem content for 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 has 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 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 probe into Vice President 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 [President Bill] 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. 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 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.

Bush has opposed Congress granting statutory authority to Homeland Security Director Tom Ridge, which has allowed Ridge to refuse congressional requests for him to testify. 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 D. Ashcroft believes it necessary to prevent terrorism; he could do so even if people have not been charged and even in the absence of a court order.

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. Also this month, the government stopped saying how many people it has detained related to the Sept. 11 attacks.

In the counterterrorism campaign overseas, Bush ordered sensitive intelligence briefings to be limited to eight of the 535 members of Congress, leading lawmakers to complain Bush had violated the 1947 National Security Act. Sen. Chuck Hagel (R-Neb.) said 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 Bush requested authority for the president, after consulting with the speaker of the House, 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.

Some in the legislative branch, particularly in the opposition party, detect a striking departure in public policy. "There's just a philosophy in the administration that the public doesn't have a right to know, which is counter to the trend of the last 30 years," said Phil Schiliro, staff chief to Rep. Henry A. Waxman (Calif.), the ranking Democrat on the House oversight committee. "Now they can justify it with national security, but that's more for convenience."

Scholars who follow Washington offer say history offers ample precedent for a wartime expansion of presidential power. "Crisis seeks leadership," said Charles O. 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."

Norman Ornstein, a governmental scholar at the American Enterprise Institute, said the growth in presidential power during the first year of the Bush administration exceeds the clout presidents gained in recent wars, comparing it to the free hand Congress and the judiciary gave Roosevelt to fight World War II.

"You always have to worry about people who have this kind of power who don't have the restraint," he said. "I worry about that, but we have such a different kind of threat on the country as a whole that you have to change the way you look at presidential power."

Dana Milbank.
Published in the Washington Post.
© 2001 The Washington Post Company.

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