Now that George W. Bush has decided that he, as president of the United
States, has the inherent authority to circumvent U.S. law by wiretapping
private citizens without a court order, we would do well to examine the
dark side of the political framework of the U.S. presidency.
In his 1960 book, "The Rising American Empire," historian Richard Van
Alstyne wrote that the executive power of the U.S. government "is one of
the most significant features of the unwritten American Constitution." Van
Alstyne pointed out that "legend and tradition require that the American
Republic appear anti-monarchical and anti-imperial." However, when the U.S.
Constitution was adopted, he said, it put into place "the very government
which the Revolution had condemned."
According to Van Alstyne, "In reality, therefore, the United States
possesses the attributes of monarchy; and it is through the president, the
elective king, that it exerts its sovereign will among the family of
William H. Seward, Lincoln's secretary of state, evidently had the above
framework in mind when he said, "We elect a king for four years, and give
him absolute power within certain limits, which after all he can interpret
for himself." Bush, with a little help from friends such as U.S. Attorney
General Alberto Gonzales, does interpret for himself whether he, as
president, is restrained by "certain limits" pursuant to U.S. law.
Thus far, Bush has concluded -- and the Justice Department has concurred --
that the law is not able to restrict him because he is the commander in
chief "in a time of war." The president tells us that he is authorized to
do whatever it takes to protect the United States, and argues that the
chief executive of the U.S. government has certain sovereign powers that he
is authorized to use. His position seems to be that he may even ignore
protections found in the Bill of Rights, such as the Fourth Amendment
protection against unreasonable searches and seizures by the government
without probable cause.
The president's recent actions should be a tremendous cause for alarm by
those Americans who wish to maintain an American system of government that
has checks and balances, with three co-equal branches of government (the
congressional, the judicial and the executive). This president's conduct
threatens to undermine a system intended to uphold the inherent right of
the people to be protected at all times in their person and property, and
intended to guarantee such fundamental rights of free speech and assembly.
After all, the Founding Founders enacted the Bill of Rights in response to
angry demands that the people be protected from the federal government that
was about to be put into place.
The Bill of Rights is a list of civil liberties meant to ensure that the
U.S. system of government operates on the basis of the rule of law and not
on the basis of the arbitrary, capricious and potentially tyrannical
actions of individual men (or of one individual man: the president), who
might dare to seize and exercise the powers of an imperial monarch. If the
Bill of Rights is scrapped in the name of fighting a "war on terror," what
will replace those civil rights to protect the people from government
excesses, in the name of national security? The extremely alarming answer
is -- nothing.
Bush appears to be moving toward assuming the powers of "a sovereign." The
political philosopher Jean Bodin coined the term "sovereignty" in defense
of French Absolutism, the theory that the French king had absolute power.
Bodin defined the term "sovereignty" as: "Supreme power over citizens and
subjects, unrestrained by the laws." When examined closely, the sovereign
monarch is viewed as exerting "supreme power" over the people who are
considered subjects or citizens. Those who are called subjects or citizens
are obligated to obey the laws and submit themselves to the authority of
the monarch, but the monarch -- as the sovereign -- is restrained by no
law, and therefore subject to no law.
Given Bush's behavior of late, it is not beyond the realm of possibility
that he is gradually and steadily seizing powers that would give him a
sovereign, imperial presidency. Some may contend that this is far-fetched.
But on Dec. 18, 2000 -- during his first trip to Washington, D.C., as
president-elect -- Bush said: "If this were a dictatorship, it'd be a heck
of a lot easier ... just as long as I'm the dictator." Some may argue that
Bush said this in jest, but it has long been observed that there is some
truth in every jest.
The question that now needs to be raised is whether the United States is
moving perilously toward a period of fascism. James D. Foreman has
described fascism as "the seizure and control of economic, social,
political, and cultural aspects of the state by a small group of activists,
backed by a large segment of the conservative middle and upper classes
fearful of the Communist-worker Left, to the end that the state becomes
intensely nationalistic, anti-communistic, militaristic, and finally
imperialistic." Replace the word "communist" with "terrorist" and you have
fairly accurate description of the neo-conservatives that came to power
with Bush, and of current political climate in the United States.
Foreman further explained that fascism is fostered by "a leader gifted in
verbalizing the fears of a large segment of the population." And if there
is one thing you can say about Bush, he has a knack for delivering,
constantly and incessantly, a message of fear about the threat of
Bush says that he is sworn to protect the United States, and he seems
prepared to flout the rule of law by a wholesale wiretapping of or
eavesdropping on U.S. citizens without probable cause, and without
obtaining a court-ordered warrant. But if he dismantles the United States'
"checks -- and -- balances" system of government in the name of protecting
that system, what has he wrought? After all, Bush has said that goal of
"the terrorists" is to undermine the American system, which he says they
hate. But if Bush himself undermines the most important liberties of the
American system -- the Bill of Rights -- in the name of protecting that
system, has not he himself thereby done what he claims "the terrorists"
want to do?
Fortunately, we can take comfort in the fact that the president does have
some degree of humility. While recently talking to injured U.S. soldiers at
a military hospital, he said: "I'm conscious not to be trying to substitute
myself for God."
Steven Newcomb, Shawnee/Lenape, is the Indigenous Law Research Coordinator
at Kumeyaay Community College on the Sycuan Indian Reservation, co-founder
and co-director of the Indigenous Law Institute, a Research Fellow of the
American Indian Policy and Media Initiative and a columnist for Indian