Neither the original understanding of the Constitution nor present-day need, however, licenses the unprecedented concentration of power in one branch of government sought by the Bush administration. Leave aside for the moment the fact that a theory of unchecked presidential power breaks faith with our deepest constitutional traditions of limited government under law. It is also dangerously ill-suited to making counterterrorism policy.
Consider first the practical consequences of the policies justified by this theory of executive power, such as the use of coercive interrogation and "extraordinary rendition" to torturers in Syria or Egypt. These practices have yielded international opprobrium. "The world," former Secretary of State Colin Powell has warned, "is beginning to doubt the moral basis of our fight against terrorism."
Executive-power mavens often argue that the president and his colleagues have better information than the rest of us, and they should therefore be trusted to make decisions. But policies that flow from presidential unilateralism too often lead to dramatically flawed decisions based on wildly wrong facts or flights of ideological fancy.
Drumming up support for the Iraq War, the president, the vice president, Powell, and Rumsfeld claimed that Iraq and al Qaeda were linked. The evidence, Rumsfeld told the nation, was "bulletproof." But the evidence came from a senior al Qaeda operative who had been rendered to Egypt for torture. The Defense Intelligence Agency later advised the administration that the suspect's statement was unreliable. Indeed, we know now that it was untrue.
The nation's Founding Fathers were well aware of this aspect of human nature, that even the best-intentioned men and women can be seduced into error by the allure of being the "decider" in a moment of high tension. It should not be surprising, then, that the theory that the president can break the law flies in the face of America's founding covenant to be a government of laws, not men. The Revolution was fought to rid America of monarchical powers of the sort the president and vice president have sought to resurrect.
Professor John Yoo, formerly with the Bush Justice Department's Office of Legal Counsel, has argued that the Framers of the Constitution silently intended to adopt the "unwritten British Constitution's allocation of powers between Parliament and Crown," giving the president the British king's powers to cast aside congressional laws. Set aside the small problem that the American Revolution repudiated the abusive structures of royal rule; the British monarchy had, in fact, been stripped of power to suspend parliamentary laws in the Glorious Revolution of 1688 — almost exactly 100 years before the Constitutional Convention.
The Constitution's system of checks and balances, however, ought not to rest on the shoulders of executive-branch lawyers alone. It is up to all three branches to play their constitutionally assigned role.
In September 2006, President George W. Bush and his allies on Capitol Hill stampeded the Military Commissions Act into law. The legislation delegated to the executive unwarranted powers to detain and interrogate suspects outside the rule of law. Rather than acting on the basis of considered debate and a full understanding of the facts, legislators fell over themselves to sign off on a "tough on terror" agenda that broke with our nation's historically enshrined liberties, most importantly habeas corpus. Congress may have the power and responsibility to rein in an overweening executive branch, but that doesn't mean it will act wisely.
The last section is more a repudiation of Congress' failure to reign in the Presidential usurpation of power, but the point remains the same. This concentration of authority in the office of the President, well beyond that which is supportable by the Constitution, has resulted in bad decisions and mistakes both at home and abroad. Where the President feels no inclination to take heed of those who do not serve him directly, debate is constrained. And where debate is constrained, wars (as an example) are declared based on all sorts of assumptions that prove not to be true (and should have been seen as not true at the time.) This and the preservation of the liberties they had fought so hard to win, is why the Framers rejected the monarchical approach. It is why we should do so today.