For more than three years, President Bush has flexed his legislative muscle. But executive privilege has its limits.
When Condoleezza Rice took her place at the bright-red witness table in front of the 9/11 commission and raised her hand to take a public oath to tell the truth, the president's foreign-policy adviser became the neatly dressed embodiment of the limits of a president's power to do exactly as he pleases.
President Bush would have much preferred that Rice keep her crisp counsel behind the iron gates of the White House -- or at least that's what every presidential aide said for a few weeks while asserting the president's right to prevent his closest advisers from being summoned to spill the beans before an entity created by Congress.
While former counter-terrorism adviser Richard Clarke, with his testimony in March, made the labors of the 9/11 commission sound relevant -- even essential -- to the future safety of the United States, Bush was hand-wringing about the essential relation of Article II of the Constitution to the future of the Republic. Or at least that's how it seemed to average folks who couldn't grasp the difference between Rice's offering her recollections to 60 Minutes or speaking to 10 beseeching commissioners.
Bush argued for the principle of executive privilege, until the practicalities of politics and public relations forced him to make a face-saving compromise. He unleashed Rice in exchange for the commission's written pledge that he hadn't sacrificed a thing in the way of his executive authority, or any future president's.
A Practical Pivot
That about-face echoed the same pragmatism Bush first exhibited when he resisted Democratic-proposed tax-rebate checks and then embraced them as his own. Or when he initially thought his own homeland-security adviser was a better fix for bureaucratic confusion than a Homeland Security Department would be, until it was clear Congress was going to create a department -- after which the president jumped in front of lawmakers with his own secretly hatched proposal. And it was the same practical pivot Bush executed when he initially thought he might take the nation to war on his own say-so, without a congressional vote of support, only to reverse course and say he had always intended to come to Congress for backing.
Bush's surrender to the commission over Rice's testimony -- not to mention the "conversation" he'll have with the 9/11 panel sometime in the coming weeks, when he will be accompanied by Vice President Dick Cheney -- ceded some of the executive control that the Bush White House has generally fought to preserve. Bush did what a lot of assertive presidents appear hardwired to do: He argued that it was not just his idea, but a victory. "I made a decision to allow her" to testify, Bush said, "because I was assured that it would not jeopardize executive privilege."
White House Chief of Staff Andy Card told National Journal in an interview a few days before Rice's appearance that Clarke's testimony, Clarke's best-selling insider's take on the White House, and the attendant media coverage fueled "a different dynamic," which persuaded Bush to compromise. Card dismissed Clarke's public contributions as "a show" and said that Clarke's publishers "used" the commissioners to sell books.
Clarke may have complained that he couldn't seem to get the president's personal attention before 9/11, but he sure got it after he publicly apologized to the weeping family members of 9/11 victims. His role eviscerated, at least temporarily, Bush's control of his defense of presidential privilege (which the White House never formally invoked). Card explained: "The dynamics -- the negotiations, if you will -- between the [time of the] creation of the commission and Richard Clarke's interview were far different than those that were dictated because of the hyperpublicity around Dick Clarke."
In March, to avoid testifying while still counterpunching, Rice had done everything but appear on the Home Shopping Network to defend the White House. Constitutional principle began to pale under the TV lights, so Bush instructed White House Counsel Alberto Gonzales and other aides to steer the administration out of the mess. "We addressed many of the concerns the president had," Card said. "It was a compromise that we were not looking for. When you have executive privilege, you are not looking for an excuse to give it up."
There's a small irony in Bush's embrace of what Card called "the reality" of "the tug of immediate gratification": That's exactly what Bush found disquieting about the reactions of the investigation-plagued Clinton White House to congressional and independent-counsel demands for all manner of behind-the-scenes staff advice and communication to the president.
As far back as Bush's 2001 transition, "there was a recognition, and I think it was kind of a sad recognition, that the previous administration allowed for the erosion of some executive authority," Card said. "And I'm not casting aspersions on them, because the dynamics of the moment do have an impact."
Card said Bush was determined, as president, to undo the damages of the Clinton era and leave the presidency stronger for his efforts: "The president wanted to restore, not just accept ... the executive authority that presidents had traditionally been able to exercise."
Asserting Power, Whetting Appetites
Bush has had a notable run at flexing his executive muscles for more than three years. He took the nation to war in Afghanistan and Iraq and called up the military reserves under his authority as commander-in-chief. Bush controlled U.S. intelligence about Iraq's alleged weapons of mass destruction and required the nation to trust his instincts about the virtues of toppling Iraq's government. He declared war on terrorism worldwide and said he had the sole authority to incarcerate U.S. citizens -- most prominently, Jose Padilla -- without charge or legal representation, if the government designated them as "enemy combatants" in that war.
Bush used the power of his pen to issue executive orders reconsidering some of his predecessor's safety and environmental regulations, and he is using the Office of Management and Budget to scrutinize (some critics assert OMB is manipulating) the scientific rationale for regulating business and industry. Bush also used executive orders to create new federal offices in response to the terrorist attacks of 2001, as well as a White House office devoted to helping faith-based and community organizations. And when the president couldn't get Congress to back his plan to make federal dollars flow to those religiously leaning organizations, he used an executive order to command the federal government to go as far as possible without new legislation.
When the Senate blocked confirmation of judicial nominees that Democrats found too conservative, Bush used his decree to temporarily fill two vacancies on the bench by taking the unusual step of recess-appointing judges who had been blocked. In another matter, the president said he would rather go to court than allow the General Accounting Office or Congress to compel the White House to surrender documents and other details of his energy task force, chaired by the vice president.
Bush has also seized on executive discretion to remove or withhold government information from the public -- with little accountability, as it happens -- on the basis of national security. And Bush has asserted by executive order that he, along with former presidents and their heirs or family members, should be able to invoke executive privilege to block the government's release of presidential papers under provisions of Watergate-era reform law.
Because of Bush's assertive use of his unilateral powers during his term, the constitutionally mandated checks on his authority have come knocking on the Oval Office door -- via Congress, the courts, and, in an election year, the voters. On April 27 and 28, the U.S. Supreme Court is scheduled to hear oral arguments in three cases that go to the heart of the executive's power under the Constitution: Cheney v. U.S. District Court for the District of Columbia (the energy task force records dispute); Rumsfeld v. Padilla; and Hamdi v. Rumsfeld (another enemy-combatant challenge). Bush can declare that Padilla can be held indefinitely in a military lockup because Padilla allegedly conspired with a terrorist group, but the Supreme Court will affirm or deny that power.
"The administration has been vigorous in reasserting the constitutional powers of the presidency," wrote John Yoo, a former deputy assistant attorney general under John Ashcroft in Justice's Office of Legal Counsel, in an e-mail response to a reporter's question. "This extends from the president's war powers, to claims of executive privilege, to efforts to preserve executive discretion in the operations of government.... Even should the administration lose these cases, it will still have several achievements to point to in the effort to restore presidential power, most notably in foreign affairs."
Yoo, who is now a visiting scholar at the American Enterprise Institute, offered examples such as Bush's decision to withdraw the United States from the International Criminal Court, and to terminate the Antiballistic Missile Treaty with Russia, without seeking congressional approval.
But if Bush is fond of invoking the long view on the issue of presidential prerogatives when it suits his purposes, he is hardly an absolutist, as the investigations into the terrorist attacks of 9/11 and their aftermath have made clear. Perhaps he will regret this course of action. Buying itself short-term tension relief, the White House opted to compromise with the commission by allowing Bush and Cheney to testify, permitting the commission to privately view classified documents of presidential briefings, and yielding on the issue of allowing the president's national security adviser to testify.
Although these actions restored some of Bush's political maneuvering room, both Gonzales and Card in interviews with National Journal expressed fear that what the White House really accomplished was to whet the appetites of the 9/11 commissioners and of Bush's political opponents. This concern may already have proved well founded. After the commission was granted access to the super-secret President's Daily Briefs prepared for Bush by the CIA, Democratic members of the 9/11 commission promptly exerted public pressure on administration witnesses to declassify the most provocative of those daily intelligence briefings -- the August 6, 2001, PDB titled "Bin Laden Determined to Strike in U.S."
That insistence proved fruitful: On Saturday, April 10, the White House capitulated on this presidential privilege, too, by declassifying the document and making it public. Less than a week later, Bush found himself in the East Room during a prime-time television news conference, taking questions about the document's warning that Al Qaeda wanted to hijack airplanes and having to answer why this warning hadn't prompted "specific actions on your part."
On granting the commission access to the PDBs, did Bush accommodate too much? Card said, "I think there are people who will try to claim that he has, and I will defend the president in making sure that it was for an entirely unique situation relating to a specific and horrible attack." The chief of staff, who earned his degree in engineering, emphasized more than once during an interview that he has long considered himself a serious student of the Constitution and sees defending Article II as part of his job. "I am kind of strident in that, and I'm comfortable being strident," he said.
Gonzales said in the interview in his office that as soon as the White House reached agreement with the commission on access to the PDBs, "we started hearing from certain members of Congress, and certain staffers, that, 'Gee, we're looking into this, and we ought to have the same ability to look at the Presidential Daily Briefs.' And that's why we are very concerned and take very seriously the notion of precedent," he said, "because once you do it one time, it makes it more difficult to say no in the future."
The Perpetual Dance
Both Card and Gonzales argue that the challenges to Bush's exercise of power are a reflection of the constitutional separation of powers, not a unique reaction to Bush's leadership. "Every president has had to go through this," said the chief of staff, who has served three presidents. "When I was in the Reagan White House, President Reagan went through it on Iran-Contra and depositions.... And then former President Bush had the same challenges."
The president's counsel, who was a Texas Supreme Court judge before Bush brought him to Washington, said history suggests there has always been a "dance" between the president and Congress about the limits of power. "It goes through cycles," said Gonzales, known inside the White House as "the judge." "In this particular point in time, we have a strong-willed president, we have an evenly divided Congress, we are in a time of war; and some would say those circumstances lead to, certainly, a perception of a shift to the executive branch."
"This is not a story about Bush," agrees William G. Howell, an assistant professor of government at Harvard University and author of the 2003 book Power Without Persuasion: The Politics of Direct Presidential Action. "More and more, we see presidents acting unilaterally, and that's absolutely true of Bush." The downside is that presidents may find it difficult to drive their legislative agendas through the gridlock of an increasingly decentralized and partisan Congress, Howell said, but the benefit to a president is that when the chief executive decides to seize the national agenda, Congress "has a hard time taking apart his unilateral action."
Bush has prospered by having a Republican majority of both houses of Congress, but even some loyal members of his own party find that the president and his aides hoard information when it's to their benefit, or they work to prevent disclosure by not sharing their intentions.
The increased eruptions of violence against the U.S. military in Iraq in the past few weeks invited another round of worries, mostly from Democrats in Congress, about Bush's plans for troop levels and international help on the ground. The frustration was as much about what they saw as a toothless Congress as it was about Bush's "we're-not-changing-a-thing" approach to the June 30 timetable for the turnover of governing authority to Iraqis.
"We need a plan. We don't have one yet," said Sen. Joseph Biden, D-Del., the ranking member of the Senate Foreign Relations Committee, during one of many recent television interviews focusing on Iraq. He called for hearings to demand that the administration provide a plan, and answers. The administration, Biden complained in response to a question, hasn't consulted the committee about Iraq strategy. Why? "When you're in the minority, you don't have much control," Biden said.
In many ways, congressional Democrats are torn -- they're unhappy with Bush's penchant for what they consider secrecy, and they're somewhat relieved that they were cut out of Republicans' Iraq discussions. If creating a stable democracy in Iraq is not an achievable goal, Democrats want to distance themselves and their party from any unpopular outcome. It's too soon to write the history of Bush's attack on Iraq, but the president's "my-way" posture throughout his assault could hurt him if he comes to need the friends he previously shunned.
Angst Over Iraq
If a public consensus builds, either before or after Election Day, that Bush exceeded his authority only to achieve a failed or tragic outcome in Iraq, public outcry might compel Congress to adopt new checks on executive authority -- which would amount to the dramatic undoing of Bush's efforts to expand executive authority. This scenario is hypothetical, but the aftershocks from Vietnam and Watergate loom large as lessons.
John Samples, director of the Center for Representative Government at the libertarian Cato Institute, said that "one of the things that might come out of [Iraq] is the sense, the idea, that the president has enormous power to take us to war. And if [the decision to go to war] turns out to be wrong or a mistake, then it has to, in my view, usefully lead us to re-evaluate whether we want that much discretion in a president and whether we can figure out ways to constrain [future presidents] in an effective way."
Since Congress did vote to authorize Bush to go to war in defense of U.S. interests, the angst about Iraq might become a debate about the president's wisdom, rather than his executive powers, noted Paul Rosenzweig, senior legal research fellow at the conservative Heritage Foundation's Center for Legal & Judicial Studies. Looking at this year's political landscape, Rosenzweig said, "I don't see it right now as a referendum on presidential exercises of power domestically. I do see it as possibly becoming a referendum on the president's exercise of his foreign-policy powers -- national security and the war on Iraq."
Card discounts the suggestion that Bush's style of leadership and reliance on unilateral authority -- his penchant for swift action rather than long analysis, his impatience with recriminations, and his desire to control information by keeping it tightly held -- is undercutting public appreciation for that leadership. "I think the president is actually admired for his leadership and maybe not always respected for the policy that follows it," he conceded.
Card denies that Bush has public-perception problems with secrecy or with his credibility: "He is a very open person, and we've been a very open administration." It is safe to say that those two assertions are vigorously disputed, even among some Republicans around the country. "Open" is in the eye of the beholder.
As Democrats ask every day, where are those weapons of mass destruction that were the rationale for going to war with Iraq? Why did the Bush administration stifle its own larger-than-promised cost estimate of the Medicare prescription drug bill until after the bill passed by a hair in Congress? Why can't the public know which companies in industry conferred with the president's energy task force and what recommendations they made? Why won't the administration run out its tax-and-spending projections over 10 years, as the Clinton administration did, instead of the current five? Why did the White House tell the Environmental Protection Agency to water down descriptions in a report of health risks posed by debris in the air after the World Trade Center collapsed?
Trust and Truth
Two recent moves by OMB's Office of Information and Regulatory Affairs have watchdog groups crying foul. OIRA, the clearinghouse for reviewing all of the most significant and costly regulations that the government publishes, is pursuing a new approach to the quality of the science behind the nation's health and safety laws and regulations. Remember, this is a president who said during the campaign and again after he took office that in weighing truth against supposition about global warming, the science was not reliable.
OIRA favors a new "peer review" of the science, with assessments from scientific experts who are working in the arena being regulated. Privately, administration sources admit that OIRA's proposal, which has generated congressional and media scrutiny, is undergoing a major overhaul. The focus on uncovering "junk science" is the current expression of Republicans' traditional antipathy to regulation.
"If you just cast a frame around your regulation-reducing ideas not as reg relief, which won't sell, but as sound science, which will sell, you're going to make some serious progress that way," said University of Texas law school professor Thomas McGarity, who also heads the Center for Progressive Regulation. The center is critical of conservative Republican anti-regulatory policies. He says anti-regulation forces support OIRA's proposals because, "most important, the burden of proof is on the plaintiff.... Then the really 'good' part is that you can manipulate the science to make it come out your way. And one of the techniques is peer review."
OIRA Administrator John D. Graham, who spent 11 years as the founder and head of the Harvard Center on Risk Analysis and is on leave from the Harvard School of Public Health, has a special professional interest in evaluating the science behind government restrictions on businesses and employers. "Those who are advocating good regulations have nothing to fear from peer review," Graham insists, sticking to broad theory rather than discussing OIRA's draft description about how it would work in practice. "It allows for the voices of qualified, independent specialists to be heard amidst the strident rhetoric of stakeholders."
As evidence that OIRA is not immune to Bush's political ambitions in an election year, critics also point to the office's focus on the high costs of regulation on the manufacturing sector, where a job squeeze plays heavily in the news. Manufacturing gets special attention, and some sympathy, in OIRA's 2004 draft of its annual report on the costs and benefits of regulations.
Graham pretty much concedes the political value of the manufacturing argument this spring, when the focus is on creating jobs. "Now is an excellent time to pursue this agenda, since those who might oppose it face substantial political risk," he wrote in an e-mail (his preferred method of communication, he explained). "The economic case for streamlining costly regulations [on] U.S. manufacturers has never been more compelling."
Bush's record on regulation is going to be dissected by a broad coalition of public-interest groups in a report to be released in mid-May. "This kind of activity raises this issue about credibility within this administration," said Gary Bass, director of OMB Watch, which is part of the coalition. "You can't trust the information you're getting."
Trust and truth are at the center of the political debates about Bush's exercise of power as president. And they are an element of the legal debates as well. Long investigations, such as the 9/11 inquiry, invite intense scrutiny of the White House and have a history of exposing far more than presidents have desired -- not just in facts, but in judgment. The panel will release its official findings just as Democrats gather for their national political convention this July in Boston.
"It has been a tremendous drain on the administration," White House Counsel Gonzales said, in an effort to describe what the president's acquiescence has brought about. "We know the law requires the commission to do this investigation, and we are cooperating the best we can," he said. "But there has been a cost for that, and it has taken a lot of time, and the truth of the matter is, I'll be glad when it's over."