How to escape the law
February 6, 2006
In a brilliant essay for the New York Review of Books discussing Samuel Alito?s accession to the Supreme Court, Ronald Dworkin writes of a revealing piece of coded language used by the administration: “unitary executive”. During the hearings, Alito was reminded that he had, in a 2000 speech, endorsed “the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president”. Dworkin comments:
The phrase “unitary executive” has been much used by conservatives anxious to increase the president’s power, particularly in the “war on terrorism.”
Former Justice department attorney John Yoo, Dworkin reminds us, had appealed to the idea of the “unitary executive” as meaning “the centralization of authority in the president alone”, which is “crucial in matters of national defense”. What does such centralization of authority mean? Simply this: that the president is above the law. As J S Bybee wrote in one of the notorious torture memos (which are discussed in detail in Chapter 7 of Unspeak):
Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.
In other words, Congress has no right to tell the president that he cannot torture “enemy combatants”. Dworkin writes:
Bush has himself mentioned the “unitary executive” doctrine 103 times in the “signing statements” he has issued when signing bills in order to make it plain that he does not regard himself as bound by congressional restrictions; he was appealing to that doctrine when he declared, before signing a bill including the McCain Amendment banning torture and inhumane treatment of prisoners, that he would “construe” the act “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief…”
So Bush planned to “construe” the ban on torture in a manner “consistent” with the opinion of his advisors that no one has a right to ban him from torturing. Clever, isn’t it? . . .
This bogus use of “consistent”, meaning flat-out rejection, is familiar from Bush’s February 2002 order that:
The United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent wtih military necessity, in a manner consistent with the principles of Geneva.
The appeal to “military necessity”, of course, instantly undermines the rest of the sentence. The point of principles is that they are governing rules: you cannot decide when to adhere to them and when to ignore them. The UN Convention Against Torture explicitly refuses to recognize any possible “necessity” defence to the crime:
[n]o exceptional circumstance whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency may be invoked as a justification of torture.
But that’s okay, because the theory of the “unitary executive” means that any laws that seek to limit the president’s power to conduct military operations as he sees fit are themselves illegal and so may safely be ignored.
Do you doubt that such plain despotism is what is meant? Dworkin reminds us of what Bybee wrote in 2002:
even if an interrogation method arguably were to violate [an anti-torture law], the statute would be unconstitutional if it impermissibly encroached on the president’s constitutional power to conduct a military campaign.
Thus the “unitary executive” simply means carte blanche.
In a recent article for the Weekly Standard, Harvard professor of government Harvey Mansfield spelled out his favourable understanding of the administration’s position with commendable clarity:
[E]nemies, being extra-legal, need to be faced with extra-legal force. [...] the rule of law is not enough to run a government [...] In Machiavelli’s terms, ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion. [...] We need both the rule of law and the power to escape it.
That is plain enough. The “unitary executive” means “the extraordinary power of a prince”. Examples of the “wise discretion” of George W. Bush are obviously not worth adding, so familiar will they be to the audience.
Mansfield’s own wise discretion is perhaps in question when he goes on, as presumably a professor of government must, to try to argue that this notion of president-as-dictator is actually enshrined in the Constitution. In particular, he appeals to the Federalist Papers, since they are “the most authoritative source for understanding the thinking of the Framers”, and Alexander Hamilton?s Federalist No 70, which argues for the “unity” of the executive.
Unfortunately, what Hamilton meant by “unity” is plainly not the same as what Alito and others understand by the “unitary executive”. Hamilton wrote that the “unity of the executive” was to be understood as being the opposite of a “plurality of magistrates”: simply that “the faithful exercise of any delegated power” should rest with one man, the president. Not only so that power could be be swiftly and decisively executed, but also so that the public would know exactly who was to blame for “a series of pernicious measures”, and that the right man might be punished for such measures.
Note that the power of the executive is understood by Hamilton as “any delegated power”, ie, the power delegated to the president by the people, through Congress. Hamilton did not think that the “unitary executive” meant unbridled power, since he wrote that the executive might commit “misconduct” that should lead to “punishment”. If the president were simply above the law, nothing he could do could possibly count as “misconduct”. And, in fact, in Federalist No 77, Hamilton writes that the executive is to be understood as “faithfully executing the laws [...] of the United States”. Understandably, this is not mentioned by Professor Mansfield, since it would seem hard to square with his desire to “escape” the law.
And so it goes. Wiretapping, torture, “extraordinary rendition”: everything is permissible under the nod-wink understanding of “unitary executive”. The phrase disguises, in the abstract jargon of jurisprudence, a hunger for absolute power, a fantasy of “escaping” the law entirely. Indeed, in its habit of wrapping in deadeningly bureaucratic language the desire to commit any kind of violence or other violation of rights that it wishes, Bush’s is, you might say, a repetitive administration.