The Constitution in Peril (Newsweek) - Democratic Underground

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The Constitution in Peril (Newsweek)

The Constitution in Peril
The War on Terror didn't start as an attack on Americans' rights, but several new books argue that's exactly what happened.

By Christopher Dickey
Newsweek

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The Bush and Cheney who emerge from these pages cherish secrecy, they deplore constraint and they sneer at dissent, so nothing and nobody can dissuade them from their chosen course. Reality checks are not allowed. "Democracies die behind closed doors," federal appeals court Judge Damon Keith said in 2002. "The Framers of the First Amendment did not trust any government to separate the true from the false for us. They protected the people against secret government."

Jack Goldsmith, who served briefly in 2003 and 2004 as head of the Office of Legal Counsel—a key position because it determines for the government what is legal and what's not—suggests that the "strange and unattractive views on presidential power" held by Bush and Cheney will create a backlash compromising future presidents. That may be, but for now, in many respects, the Bush-Cheney vision has triumphed. Savage concludes that Cheney and Bush will leave presidential powers enhanced at the expense of Congress and the courts, to the detriment of the checks and balances essential to our constitutional system. (Savage suggests there's already some nervousness among Republicans fearful that Hillary Clinton will reap the benefits. No president will want to see his or her imperial authority eroded.) "The expansive presidential powers claimed and exercised by the Bush-Cheney White House are now an immutable part of American history—not controversies, but facts," says Savage. The worldwide war with terrorists that is so important to the arguments for that presidential power, including the occupation of Iraq, will go on as well. Last week all the leading Democratic presidential candidates admitted as much. What might have seemed farfetched political and military fantasies seven years ago are inescapable realities today.

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From the beginning Bush's staff, guided by Cheney's, "hoped to enlarge the zone of secrecy around the executive branch, to reduce the power of Congress to restrict presidential action, to undermine limits imposed by international treaties, to nominate judges who favored a stronger president and to impose greater White House control over the permanent workings of the government," writes Savage. Then 9/11 happened and suddenly "the war on terrorism's climate of perpetual emergency provided a vehicle for turning (Cheney's) vision of an unfettered commander in chief into a reality."

Goldsmith, a conservative academic and generally a supporter of a strong executive, argues in his book "The Terror Presidency: Law and Judgment Inside the Bush Administration" that much of what was done in the early days after 9/11 is perfectly understandable. Threats seemed to be everywhere. A second wave of attacks appeared imminent and all but inevitable. "The President had to do what he had to do to protect the country," writes Goldsmith. "And the lawyers had to find some way to make what he did legal." But unlike previous war presidents—Lincoln, FDR—who bent the Constitution in order to save it, and took responsibility for doing so, the Bush administration stonewalled, as if public ignorance were the best way, in many cases, to give the president the powers he needed.

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http://www.msnbc.msn.com/id/21047601/site/newsweek/