Cross posted from Legal Times
Before 9/11, who would have imagined that the vice president of the United States would publicly endorse the use of waterboarding in interrogating suspects as a “no-brainer”? Or that the administration would exploit the political opportunity of a tight election to ram immunity for government torturers through Congress? Who would have imagined that America would be condemned around the world for “disappearing” suspects, sweeping them off into secret prisons for brutal interrogations? That only five years after 9/11 the sympathy expressed around the world for America’s tragic losses would have frayed? Or that Guantánamo and Abu Ghraib would become, for much of the world, more potent symbols of America than the Statue of Liberty?
It has not been terrorism alone that has changed the nation, but our response to it. A telltale sign: At one time, the New York Daily News’ recent revelation that the president asserts open-ended power to read our mail would have shocked us. Today, it’s almost old hat.
What once would have been dismissed as outlandish speculation is today the inevitable consequence of an executive branch that purports to stand above the checks and balances of the Constitution. The president asserts the power once claimed by British kings to set aside the laws of the land. He uses that power to ignore laws banning torture and warrantless wiretapping. But this monarchical presidency makes the nation no safer and breaks faith with foundational constitutional traditions. The theory of a monarchical presidency, decried by The New York Times last month as a return to the “imperial presidency” condemned by Arthur Schlesinger Jr. during the Nixon years, has been used to undergird precisely those policies that the American people would not countenance as open laws. The president thus claims unilateral power to use interrogation practices that amount to torture, to consign citizens to indefinite detention, and to sift through Americans’ mail and telephone calls unchecked by any judge.
Contrary to popular belief, though, the monarchical presidency is not a response to 9/11, but a long-nursed ideological project of a small clique. Vice President Dick Cheney drew from Watergate and its aftermath the lesson that checks on an imperial presidency should be cast aside. In the 1987 minority report on the Iran-Contra scandals, which he authored, Cheney made a remarkable call for “monarchical notions of prerogatives for the presidency.” Nearly 15 years later, as the nation reeled from 9/11, Cheney and his allies seized their chance.
Aziz Huq and Frederick A.O. Schwarz “No King Please, We’re Americans” (PDF)