Nat Hentoff - February 1, 2006

A Founding Father on presidential powers

The press was barred from the 1787 Constitutional Convention so that the contentious delegates could speak freely. However, James Madison's notes on the debates are a valuable source for our founding origins as a nation. And, in the Federalist Papers, Madison urging the new Americans to vote to ratify the proposed Constitution wrote on an issue now being fiercely debated again: the extent of a president's powers. In this case, what George W. Bush claims are his "inherent" constitutional powers in the war on terrorism. The time has come for Madison to enter the present debate.

In the Federalist No. 47, Madison said plainly: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

Madison went on and this is what troubles me about the presence of John Roberts and Samuel Alito on the Supreme Court to say:

"Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of (our) system. ... The preservation of liberty requires that the three great departments of power should be separate and distinct." Roberts and Alito have shown excessive deference to executive government powers.

On Dec. 16 on C-SPAN's "Washington Journal" Bruce Fein, former associate deputy attorney general in President Reagan's administration, and a continually challenging conservative constitutional scholar explained why this continuing debate on the sweeping powers of "the unitary executive" is the most crucial of all controversies during the Bush presidency so far:

"We must protect the Constitution," Fein said, "for those yet to be born whether (the future) Congress or the White House is controlled by Republicans or Democrats. We need an aggressive fight against terrorism, but we can do it without compromising the Constitution ... If he (George W. Bush) insists he can do anything (against the Bill of Rights) in the war against terrorism, then he is indistinguishable from King George III."

That led me to look again at the Declaration of Independence's list of "repeated injuries and usurpations" by King George III, headed by the charge: "He has refused his Assent to laws, the most wholesome and necessary for the public good."

Some members of the White House press corps have tried to get during the infrequent presidential press conferences direct and expanded answers from Bush on what limits he himself recognizes to presidential powers in this war that can go on past this generation. His customary, cursory answer is that he does not go beyond the Constitution.

James Madison might demur.

We do not have an equivalent of the British House of Commons' "Questions for the Prime Minister," but we could have the size and quality of the televised town meetings Ted Koppel used to so skillfully and fairly moderate on "Nightline." He has now moved to the Discovery Channel, but has taken on outside assignments as well.

Why couldn't a combination of broadcast and TV channels deputize Koppel to arrange a prime time meeting at which Bush would be asked by a range of representative Americans, where in the Constitution he finds such "inherent powers" as:

The authorization of the National Security Agency to bypass the Foreign Intelligence Surveillance Court; allowing the CIA's "extraordinary renditions" sending terrorism suspects to nations known for torturing prisoners, and also the CIA's secret prisons around the world; permitting the FBI to use the National Security Letters, without judicial supervision, to obtain a wide range of personal records of Americans in violation of the very specific requirements of the Fourth Amendment; and more.

Also, does the president agree with the chief and most influential definer of his "inherent" powers, John Yoo, who as a Justice Department attorney, advised the White House on Sept. 25, 2001:

"The centralization of authority in the president alone is particularly crucial in matters of national defense, war and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch." This radical revision of the Constitution is echoed to this day by this administration.

Yoo is back in his professorship at the University of California Law School at Berkeley, but his presence is still very much felt in this presidency. At last, the president should speak for himself to Americans regarding his own definition, in practice, of the "unitary executive." And, going back to the founding of America, how does he answer to James Madison's grave warning?