Clash Is Latest Chapter in Bush Effort to Widen Executive Power

By Peter Baker and Jim VandeHei
Washington Post Staff Writers
Wednesday, December 21, 2005

The clash over the secret domestic spying program is one slice of a broader struggle over the power of the presidency that has animated the Bush administration. George W. Bush and Dick Cheney came to office convinced that the authority of the presidency had eroded and have spent the past five years trying to reclaim it.

From shielding energy policy deliberations to setting up military tribunals without court involvement, Bush, with Cheney's encouragement, has taken what scholars call a more expansive view of his role than any commander in chief in decades. With few exceptions, Congress and the courts have largely stayed out of the way, deferential to the argument that a president needs free rein, especially in wartime.

But the disclosure of Bush's eavesdropping program has revived the issue, and Congress appears to be growing restive about surrendering so much of its authority. Democrats and even key Republicans maintain Bush went too far -- and may have even violated the law -- by authorizing the National Security Agency to eavesdrop on U.S. citizens' overseas telephone calls in search of terrorist plots without obtaining warrants from a secret intelligence court.

The vice president entered the fray yesterday, rejecting the criticism and expounding on the philosophy that has driven so many of the administration's actions. "I believe in a strong, robust executive authority, and I think that the world we live in demands it -- and to some extent that we have an obligation as the administration to pass on the offices we hold to our successors in as good of shape as we found them," Cheney said. In wartime, he said, the president "needs to have his constitutional powers unimpaired."

Speaking with reporters traveling with him aboard Air Force Two to Oman, Cheney said the period after the Watergate scandal and Vietnam War proved to be "the nadir of the modern presidency in terms of authority and legitimacy" and harmed the chief executive's ability to lead in a complicated, dangerous era. "But I do think that to some extent now we've been able to restore the legitimate authority of the presidency."

For Cheney, the post-Watergate era was the formative experience shaping his understanding of executive power. As a young White House chief of staff for President Gerald R. Ford, he saw the Oval Office at its weakest point as Congress and the courts asserted themselves. But scholars such as Andrew Rudalevige, author of "The New Imperial Presidency," say the presidency had recovered long before Cheney returned to the White House in 2001. The War Powers Act, the legislative veto, the independent counsel statute and other legacies of the 1970s had all been discarded in one form or another.

"He's living in a time warp," said Bruce Fein, a constitutional lawyer and Reagan administration official. "The great irony is Bush inherited the strongest presidency of anyone since Franklin Roosevelt, and Cheney acts as if he's still under the constraints of 1973 or 1974."

Sen. John E. Sununu (R-N.H.) said: "The vice president may be the only person I know of that believes the executive has somehow lost power over the last 30 years."

The tug over executive power traces back to the early years of the republic, and presidents have traditionally moved to expand their reach during times of war. John Adams, fearing a hostile France, presided over the imprisonment of Republican critics under the Alien and Sedition Acts. Abraham Lincoln suspended habeas corpus during the Civil War. Woodrow Wilson jailed Socialist Eugene V. Debs, who had run against him for president, for protesting the entry into World War I. Franklin D. Roosevelt sent Japanese Americans to internment camps during World War II. And Ronald Reagan circumvented a Cold War congressional ban on providing aid to contra rebels in Nicaragua.

The Bush administration rejects comparisons to such events and says its assertions of authority in response to the Sept. 11, 2001, terrorist attacks have been carefully tailored to meet the needs of a 21st-century war against a nebulous foe. At his news conference Monday, Bush bristled at the notion that he sought "unchecked power" and said he had consulted with Congress extensively.

Yet Bush supporters believe that other branches should take a subsidiary role to the president in safeguarding national security. "The Constitution's intent when we're under attack from outside is to place maximum power in the president," said William P. Barr, who was attorney general under President George H.W. Bush, "and the other branches, and especially the courts, don't act as a check on the president's authority against the enemy."

Even before the NSA surveillance program, the Bush administration has asserted its war-making authority in detaining indefinitely U.S. citizens as enemy combatants, denying prisoners access to lawyers or courts, rejecting in some cases the applicability of the Geneva Conventions, expanding its interrogation techniques to include harsher treatment and establishing secret terrorist prisons in foreign countries.

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