Mr. Pfiffner is University Professor in the School of Public Policy at George Mason University. This essay is drawn from his book, Power Play: The Bush Administration and the Constitution (Brookings 2008).

The Bush administration, in addition to its over-classification of documents, has undertaken more policies in secret than any administration in recent memory. For instance:

1. President Bush’s Military Order of November 13, 2001, which authorized military commissions (which were later invalidated by the Supreme Court), was kept secret from National Security Adviser Rice and Secretary of State Powell until the president had signed it.

2. President Bush ordered the National Security Agency to conduct surveillance of Americans without warrants, in spite of the clear language of the law that warrants were required. Even the legal memorandum justifying the program was kept secret from Congress and from NSA lawyers.

3. President Bush’s memorandum pursuant to the Military Commissions Act (MCA), reinterpreting Common Article 3 of the Geneva Conventions to allow harsh interrogation techniques, was kept secret from the public and Congress.

Most people understand that it is necessary for the government to keep some secrets. For instance, troop movements that would warn the enemy should they become known are legitimate secrets. Likewise, covert operations by the CIA must also remain secret. Some secrets (and even lies) are justified when pursuing some public policies; for instance, plans for President Carter’s aborted attempt to rescue the hostages in Iran should certainly have been kept secret. The policy of the United States to rescue U.S. citizens imprisoned in foreign countries is understood, and covert actions taken to pursue that policy are legitimate. In contrast, the Reagan administration’s attempt to trade arms to Iran for release of hostages, directly abrogated declared U.S. policy (it also arguably violated the law).

In general, citizens, and particularly members of Congress, should know what the policies of the United States government are. The fundamental premise of representative democracy is that citizens know about governmental policies and thus can make informed decisions when voting. The most important way of establishing governmental policy is the passing of laws. Citizens and the legislators representing them have a right to presume that the executive branch is obeying the law.

But in establishing the Terrorist Surveillance Program, President Bush asserted that he was not bound by the Foreign Intelligence Surveillance Act (FISA) which required warrants before NSA could conduct surveillance in the United States. Given the administration’s justification for NSA’s illegal surveillance, there may be other, secret programs that are being conducted of which neither Congress nor the American public are aware.

When President Bush’s military commissions order was invalidated by the Supreme Court because it did not comply with U.S. law, Congress passed the Military Commissions Act (MCA) which gave legal sanction to the commissions that President Bush had tried to create under his own executive authority. In that law Congress authorized the president to reinterpret Common Article 3 of the Geneva Conventions. Common Article 3 provides that detained persons be treated “humanely,” and it prohibits “violence to life and person, in particular murder of all kinds, mutilation , cruel treatment and torture,” and “outrages upon personal dignity, in particular, humiliating and degrading treatment. . . .”

Compliance with Common Article 3 had not previously been a problem in U.S. policy, but President Bush suspended the Geneva Conventions in February 2002. This suspension led, eventually, to the many instances of abuse and torture. The Supreme Court, in Hamdan v. Rumsfeld, ruled that the president was legally bound by the Geneva Conventions. Thus President Bush needed legal justification for the types of harsh interrogations of detainees that he was authorizing, and the MCA gave him that authority.

The MCA forbade torture in its most egregious forms, but it allowed the president to issue rules specifying which techniques of “enhanced interrogation” the CIA would be allowed to use on those suspected of terrorism. Congressional critics of the Bush administration argued that, for instance, waterboarding constituted torture; but the administration refused to rule out waterboarding or reveal what techniques were authorized by the president. In this case, Congress was voting for a bill (the MCA) authorizing the president to determine an important policy -- which harsh interrogation techniques could be used by U.S. personnel -- without knowing what they were voting for.



The disturbing aspect of these secret interpretations of laws is that the Bush administration interpreted the law according to its own legal standards. Those standards gave the president, as commander in chief, virtually unlimited authority in dealing with any national security matter. The legal memoranda of the Office of Legal Counsel also argued that any congressional enactment (law) that constrained the president in his treatment of detainees would be unconstitutional.

According to the arguments of the Bush administration, signing statements give president Bush the authority to decide unilaterally which parts of laws to execute and which to ignore. Although there have not been blatant, public refusals of the administration to execute the law, there may very well be policies implemented subsequent to presidential signing statements about which we do not know.

In the case of the MCA interrogation policies and signing statements, it is impossible for members of Congress to know what the law, in operation, would be. Thus they were expected to vote on laws, the consequences of which have not been revealed to them. Such situations undercut the very ideas of the rule of law and representative democracy.

This pattern of executive actions has the effect of robbing the legislative branch of its most important power: the power to make law. If presidents can now exercise law-making authority by secret and novel interpretations or by selectively ignoring laws, they usurp the most important power of the first branch of government. Such a course of action seriously threatens the separation of powers system, because it places into the hands of the executive, in effect the power to make as well as execute, the law - the very type of governance the founders said led to tyranny.

Even though George W. Bush will not be president after January 20, 2009, he has set dangerous precedents that future presidents can rely on to abuse their executive power. Chief executives, regardless of party, seek power, as the Framers of the Constitution predicted. The Framers carefully crafted a Constitution that is designed to hem in aggrandizing executives through the self interest of members of the other two branches. Despite several promising decisions by the Supreme Court, neither branch has forcefully asserted its own constitutional prerogatives against the executive. If they do not do so, future presidents will be able to use the troubling precedents set by President Bush for their own purposes.