All the President’s Secrets

The authors of Unchecked and Unbalanced visit CAP to discuss how to reign in an overreaching executive branch.

From left to right: Frederick A.O. Schwarz, Morton H. Halperin, and Aziz Huq

“If our government is unchecked contrary to what our founders thought it should be it almost inevitably will be unbalanced,” Frederick A.O. Schwarz said yesterday at a Center for American Progress event surrounding the release of Unchecked and Unbalanced: Presidential Power in a Time of Terror, which he co-authored with Aziz Huq.

When a government is unbalanced by presidential abuses of power—and a small coterie of people within the executive branch directs the course of the entire country—the chances increase that foolish decisions will be made and unjust policies implemented, Schwarz said.

Schwarz and Huq argue in Unchecked and Unbalanced that the Bush administration has created a “secret presidency” founded on classified presidential decisions and secret laws that confound efforts to hold the executive accountable. The book puts the Bush administration’s abuses of executive power in historical perspective and offers a plan to restore the checks and balances to U.S. government that are necessary to promote American liberty and security.

The event was moderated by CAP Senior Fellow Morton H. Halperin.

To formulate the arguments he contributed to Unchecked and Unbalanced, Schwarz drew upon his experience as chief counsel to the Church Committee, which investigated the practices of U.S. intelligence agencies in the 1970s and unearthed overreaches of executive power at home and abroad. Schwarz said at CAP that the Bush administration’s executive overreaching goes beyond any the country has previously witnessed. “Under the Bush administration for the first time in American history the president and the president’s lawyers actually claim the right to break the law,” Schwarz said.

Huq, who directs the liberty and national security project at the Brennan Center for Justice at New York University’s School of Law, explained that Bush’s abuses of power go beyond past presidents’ decisions to ignore in times of crisis the traditional checks-and-balances structure of the government’s three branches. Unlike, for example, President Lincoln’s suspension of the writ of habeas corpus during the Civil War, Bush’s violations of the law are conducted wholly in secret and are not linked to an emergency that has an identifiable end-point.

Perhaps most worrying, Huq argued, past overreaching presidents acknowledged that their abuse of executive power was wrong, but Bush makes no such concession. Today, when laws against torture or the warrantless surveillance of Americans are circumvented or simply set aside, it’s done with “the idea that it’s lawful and constitutional,” Huq said. This stance is borne of a theory of executive power that the president has the right to break the law for national security reasons “if the president of his own will alone decides he wants to do it,” Schwarz said, calling it an “extremely dangerous theory.”

The authors argued that such unprecedented and extreme abuses of executive power must be confronted and the checks and balances of American government restored in order to prevent future presidents from overreaching even further.

How can this be done? “The single most important thing is that the public come to understand what’s been done in their name—and reject it,” Schwarz said. Americans must understand that the president’s abuses of power on matters of torture, extraordinary rendition, and the indefinite detention of prisoners go against American values of liberty and justice. Americans should also realize that, contrary to furthering our national security interests, Bush’s actions are actually detrimental to them. Terrorists can point to the president’s policies on torture and indefinite detention as a “great recruiting poster for attracting people to join their cause,” Schwarz said.

Increased public scrutiny and criticism of executive abuses of power, supplemented by more aggressive congressional oversight, represent the United States’ best chance of restoring checks and balances to American government. “The gap between law as it should be and law as it is sometimes put into practice can be narrowed,” Huq said.

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