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Shadow government

Inside the Bush administration's sweeping, often secretive efforts to expand the power of the presidency

David Gergen is a professor of public service and director of the Center for Public Leadership at the Kennedy School of Government at Harvard. He has served in four presidencies. David Gergen is a professor of public service and director of the Center for Public Leadership at the Kennedy School of Government at Harvard. He has served in four presidencies. (ALEX NABAUM)

Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy
By Charlie Savage
Little, Brown, 400 pp., $25.99

The Terror Presidency: Law and Judgment Inside the Bush Administration
By Jack Goldsmith
Norton, 256 pp., $25.95

Broken Government: How Republican Rule Destroyed the Legislative, Executive, and Judicial Branches
By John Dean
Viking, 332 pp., $25.95

Dead Certain: The Presidency of George W. Bush
By Robert Draper
Free Press, 463 pp., illustrated, $28

In the days of Vietnam, Americans could watch on their television screens what was happening in the jungles overseas, but only with the passage of time did they see that a second, secret war was being waged here at home - an assault upon the constitutional order. In the end, the attacks on the rule of law became as dangerous to the nation as the quagmire on the battlefield. Are we witnessing history repeat itself today? Not exactly. George W. Bush is no Richard Nixon. But there are enough parallels between then and now that unless we pay close attention, we could badly damage our historic system of governance.

That warning emanates loud and clear from a spate of new books on the way the Bush-Cheney administration - largely out of the public eye - has seized upon the war on terror to drive an unprecedented expansion in the powers of the presidency. The best and most comprehensive of the new works is Charlie Savage's "Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy." Savage, a graduate of Harvard and the Yale Law School, won a Pulitzer Prize for his coverage last year of the administration's efforts to stretch the law. The most illuminating volume is "The Terror Presidency: Law and Judgment Inside the Bush Administration," by Jack Goldsmith. Goldsmith is a conservative legal scholar who was recruited to a key position in the administration, courageously tried to rein in his colleagues, and, after repeated clashes, packed his bags. He is now a professor at the Harvard Law School.

As Savage points out, Nixon inherited a presidency whose powers had already been inflated by the Cold War and the early Vietnam years. The president, Savage notes pointedly, "with a young Cheney watching and learning inside his administration, then pushed the power of the presidency to its breaking point."

Nixon justified a wide array of secret actions, from military strikes overseas to warrantless wiretaps at home, in the name of national security, asserting that in time of war the Constitution gives the president inherent powers to act as he sees fit, without regard to what the laws say. Savage recounts Nixon's 1977 interview with David Frost in which the former president declared, "When the president does it, that means it's not illegal."

Soon enough, the efforts he launched for security were redirected toward politics: The plumbers he organized to stop leaks about international affairs became the same folks who engineered the break-in at Democratic headquarters. The story is now familiar that, in the aftermath of Watergate, a Democratic Congress cracked down with a series of laws limiting the power of the presidency and that the Ford White House, with Dick Cheney as chief of staff, chafed under the restrictions, especially for military purposes. I worked under Cheney and not only had a high regard for him but agreed that Congress had gone too far. In the years since, however, I have thought - along with most legal scholars - that the balance of power has been largely and appropriately righted. Cheney went in the opposite direction. Serving in the House of Representatives, he became more convinced that Congress could not be trusted to run foreign policy. When elected vice president, he made it his mission to build a presidency with virtually unfettered power, especially in regard to national security. His boss signed on with him.

Just as a group of young neoconservatives reinforced and helped carry out the Bush and Cheney views on Iraq, so too a group of young conservative lawyers came into the administration who shared their determination and sought to carry out the mission of expanding presidential power. They arrived under Bush eager for the task and undeterred by an earlier ruling by the Rehnquist court that rejected their belief in "unified" executive power. They were on a mission, and the attacks of 9/11 provided an opening. Savage shows how the administration lawyers, spurred on by the vice president's office, launched efforts across the board that pushed executive power to its outer edges - and often beyond. At first, they were also successful in keeping their efforts hidden from a passive Congress, the courts, the press, the public, and even from colleagues inside who disagreed with them. Had Iraq been a success, we might still be in the dark.

But disgraces such as Abu Ghraib as well as tenacious investigations by the press, especially print reporters, broke down the walls, and secrets began tumbling out. We now know, as Savage records in thorough, sometimes numbing detail, about Justice Department memos that declare that the commander-in-chief is bound by neither congressional laws nor by international treaties, that authorize harsh - many would argue torturous - treatment of detainees, that endorse warrantless wiretaps that contradict explicit US laws, all shrouded within a culture of secrecy that rivals Nixon. Considered in totality, the record is not just breathtaking; it is hair-raising.

And as an angry Congress probes deeper, it is obvious that we may still not know where this story ends. Yet in assessing the administration's record, it would be wrong not to weigh its side of the story, and that is what Goldsmith provides in his valuable account. He makes a compelling case that, whatever its excesses, the Bush-Cheney team did face genuine threats that demanded extraordinary efforts. He describes the "profound anxieties that pervaded the Bush administration." Every morning the president and his top advisers awoke to read the "threat matrix," a report that could run dozens of pages and recorded every threat in the past 24 hours.

No other presidency has faced such a steady diet of possible attacks on American soil. Writes Goldsmith: "Former Deputy Attorney General Jim Comey, the most levelheaded person I knew in government, says that reading about plans for chemical and biological and nuclear attacks over days and weeks and years causes you to 'imagine a threat so severe that it becomes an obsession.' " It is also worth remembering that the men and women around President Bush were the first in history who literally had to run for their lives upon warnings that terrorists were in control of an airplane headed toward 1600 Pennsylvania Ave. One can only imagine the psychic scars that day left.

In further mitigation, Goldsmith points out that a myriad of new US laws as well as international conventions, spurred by concerns over human rights, have made it a crime to abuse or torture a detainee. If a CIA officer goes over the line in interrogating a prisoner, he can be prosecuted and sent to jail - if not by this administration, then by a successor. But where are the lines? There was thus an urgent and well-founded need for the Bush Justice Department to issue instructions that would clarify the rules for everyone working against terror suspects. Goldsmith himself entered the administration in October 2003, sympathetic to its efforts to provide maximum power and flexibility to the executive. He was recruited to be director of the Office of Legal Counsel at the Justice Department, a pivotal office that tells the rest of the executive branch what is legal and what is not.

What is most striking about his account is how he soon realized - to his alarm - that many of his colleagues at Justice had gone beyond what he saw as legal bounds, issuing secret authorizations that "rested on severely damaged legal foundations" and were "sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the president." Over the next few months, Goldsmith began overturning one after another of previous Justice instructions, drawing the immediate ire of the expansionists, especially David Addington, then the legal counsel and now the chief of staff to Cheney. Increasingly marginalized and overruled, Goldsmith left in less than a year.

John Dean, who has recanted his Nixon days, now champions more virtuous leadership and weighs in with "Broken Government: How Republican Rule Destroyed the Legislative, Executive, and Judicial Branches," a book that is readable and caustic, though less informative than Savage's and Goldsmith's. Curiously, one reads little in these books about what role George W. Bush actually played on the legal front.

One turns for answers to Robert Draper's highly readable new biography of Bush, "Dead Certain: The Presidency of George W. Bush," but they aren't there either. Draper is more interested in Bush the man and politician, and brushes over some key events of his presidency. For example, the Abu Ghraib scandal receives only two mentions, both in passing. Draper's account does give a good sense of how Bush likes a "big idea" and, when he finds one, latches on with a single-minded stubbornness. Revealingly, Laura Bush comments about his earlier days as a drinker, "George is pretty impulsive and does pretty much everything to excess." Savage argues that Cheney gave him the "big idea" of expanding presidential power, and Bush has been running with it ever since.

The larger issues raised by Savage and Goldsmith are how we govern ourselves as a people. The Bush-Cheney team has been insisting that in time of war the Constitution and common sense tell us that the president must be entrusted with the power to protect the nation as he and he alone sees fit; neither the Congress nor international treaties agreed to by the United States should bind him. The administration has a legitimate point that the president and his team must be able to act quickly and forcefully in the face of threats. But in its zeal, as Savage and Goldsmith argue, it has been defying the Founders' express desire for checks and balances. As much as Madison and Hamilton wanted an effective executive, they also wanted to avoid an autocratic president. Down that road, as they saw, is a loss of liberty, so they invented instead, as Richard Neustadt observed, a system of "separated institutions sharing powers." If there were any remaining question, Justice Sandra Day O'Connor surely provided the answer in the Supreme Court's decision of 2004 in the Hamdi v. Rumsfeld case: "A state of war is not a blank check for the president."

Equally dangerous, Savage and Goldsmith believe, is the cult of secrecy that the administration has tried to create. To be sure, a president and his team do need appropriate protections over their deliberations and sensitive information about national security, especially in time of conflict, but this administration has once again taken things to radical extremes. They have hidden information from others in large part to keep power exclusively in their own hands and, when needed, to shield themselves from political embarrassment. If there is any one lesson that recent history has taught corporate and political leaders in recent years, it is the need for greater openness and transparency. Goldsmith argues convincingly that the administration could have cured its legal problems and simultaneously met its security needs if it had worked more cooperatively and openly with the Congress and with others right from the start.

In the aftermath of 9/11, as it did with the Patriot Act, the administration could have gained the necessary congressional approval and created a system with ample flexibility and protections, while resting on firm legal foundations. He shows that Lincoln and Franklin Roosevelt, often cited by administration lawyers, approached their crises with much more sensitivity toward Congress and public opinion.

Ah, in how many ways would we be better off if we could rewind the clock to 9/11 and begin again? Goldsmith concludes that we can at least take comfort in the way that the courts, Congress, and public opinion are finally putting checks on the expansion efforts by the administration. Bush as well as his successors will now feel constrained, he says. On this point, Savage disagrees. He cites Supreme Court Justice Robert H. Jackson's warning that any new claim of executive power, once validated into precedent, "lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes." Seeing how quickly the Nixonian spirit of three decades ago was revived in our own time, Savage - alas - has the better argument.

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