Reining in the Imperial Presidency: Lessons and Recommendations Relating to the Presidency of George W. Bush.

This Report has been prepared at the direction of Rep. John Conyers, Jr., Chairman of the House of Representatives Committee on the Judiciary. It was drafted to itemize and document the various abuses that occurred during the Bush Administration relating to the Committee’s review and jurisdiction, and to develop a comprehensive set of recommendations to prevent the recurrence of these or similar abuses in the future. This Report is being published initially on the internet, with a print version to come shortly.

The Report begins with a preface titled “Deconstructing the Imperial Presidency,” which describes and critiques the key war power memos that gave rise to the concept of broad-based, unreviewable, and secret presidential powers in time of war. These legal theories, many of which took seed shortly after September 11, 2001, rely on breathtaking assertions regarding the nature and scope of the so-called “global war on terror,” such as those set forth in an October 23, 2001, memorandum concluding that the president may order extensive military operations inside the United States. As the Report documents, these theories were relied on time and again in numerous other contexts by the Bush Administration over the next seven and one half years.

The next five sections of the Report describe specific abuses of the Imperial Presidency relating to Judiciary Committee inquiries. Section 1, “Politicization of the Department of Justice,” describes the Committee’s U.S. Attorneys investigation and concerns relating to the politicization of the Civil Rights Division in general and the Voting Rights Division in particular.

Even as this report is being released, the Justice Department’s Offices of the Inspector General and Professional Responsibility have released a report further documenting politicized hiring and politicized decision-making in the Division. Section 2, “Assault on Individual Liberties,” broadly details Bush Administration policies relating to detention, enhanced interrogation, extraordinary rendition, ghosting and black sites, warrantless domestic surveillance, and the issuance of national security and exigent letters. Section , “Misuse of Executive Branch Authority,” describes concerns relating to signing statements and misuse of regulatory authorities. Section 4, “Retribution against Critics,” details the facts ascertained relating to the outing of former intelligence agent Valerie Plame Wilson, and other instances of improper retribution by the Bush Administration against its critics.

Section 5, “Government in the Shadows,” describes multifaceted efforts of the Bush Administration to avoid accountability and culpability through a variety of legal techniques, including broad and unprecedented assertions of executive privilege, withholding testimony and information without formal assertion of privilege, extraordinary assertions of state secrets, broad uses of classification authorities, and unduly narrow construction of the Freedom of Information Act, as well as manipulation of intelligence in the run-up to the Iraq War. Each of these sections includes a comprehensive set of findings detailing specific legal and factual conclusions drawn from the review.

Section 6 of the Report sets forth a comprehensive set of 47 policy recommendations designed to respond to the abuses and excesses of the Bush Imperial Presidency. The list begins with three major threshold recommendations:

• First, that the Judiciary Committee pursue its document requests and subpoenas pending at the end of the 110th Congress.
• Second, that Congress create an independent blue ribbon commission or similar body to investigate the host of previously unreviewable activities of the Bush Administration, including detention, enhanced interrogation, extraordinary rendition, ghosting and black sites, and warrantless domestic electronic surveillance.
• Third, that the new Administration conduct an independent criminal inquiry into whether any laws were broken in connection with these activities.

In this regard, the Report firmly rejects the notion that we should move on from these matters simply because a new Administration is set to take office. This is because there never has been an independent, comprehensive review of these very serious allegations with a full report to the American public. The investigations to date have either been limited in scope or authority, hidden from the public and the Congress, or stonewalled or obstructed by the outgoing Administration behind impenetrable walls of classification and privilege.

The purpose of the above-described investigations is not payback, but to uphold the rule of law, allow us to learn from our national mistakes, and prevent them from recurring. Such an effort would be a welcome sign to our friends, and a warning to our foes, that this Nation can indeed serve as a beacon of liberty and freedom without weakening our ability to combat terrorism or other threats.

Download Reining in the Imperial Presidency: Lessons and Recommendations Relating to the Presidency of George W. Bush

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House Committee on the Judiciary Majority Staff Report to Chairman John Conyers, Jr.
January 13, 2009

Preface: Deconstructing the Imperial Presidency

In the Founders’ view, the “blessings of liberty” were threatened by “those military establishments which must gradually poison its very fountain.” ...Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II.
– Justice Antonin Scalia in Hamdi v. Rumsfeld.

“Imperial Presidency” is a term used to embody a fervently held anti-democratic belief system, rooted in a constitutionally unsupportable view of the president’s power vis-à-vis the Congress, the courts, and the people of the United States.

The Imperial Presidency of George W. Bush – constructed and enforced by Vice President Dick Cheney and his chief legal advisor David Addington, given legal veneer in Department of Justice Office of Legal Counsel opinions by Deputy Assistant Attorney General John C. Yoo, and endorsed by White House Counsel and later Attorney General Alberto Gonzales – has been characterized by the determined effort to arrogate for the president vast uncheckable power in large spheres of government action, coupled with the equally determined willingness to do battle with the courts and Congress for the president’s right to maintain these prerogatives.

For the president to seek legislative authorization from Congress, rather than simply act unilaterally (on detention policy, for example), was scorned as “giv[ing] away the President’s power.”3 Even the Republican-controlled Congress was viewed by David Addington with hostility for the potential threat it posed to the president’s ability to act unilaterally. The determined insistence that the pesident had the right to go it alone was typified by Mr. Addington’s statement: “We’re going to push and push and push until some larger force makes us stop.”

Among the most far-reaching instances of President Bush’s arrogation of power are actions he took in the aftermath of the terror attacks of September 11, 2001. Here, as will be set forth in greater detail, President Bush relied on extreme – and secret – interpretations of his constitutional powers to implement aggressive and far-reaching policies relating to detention, interrogation, and electronic surveillance. Whenever these actions have been exposed and challenged in court, the courts have generally held them to be unconstitutional – or  onstitutional only to the extent they were authorized by Congress.

President Bush has similarly “pushed and pushed” for presidential power vis-à-vis Congress and the courts in other significant areas of activity. For example, he has stonewalled legitimate congressional requests for information, going so far as to assert that his White House advisors need not so much as show up in response to congressional subpoenas – even in instances where there are no communications with the President involved that might support an assertion of executive privilege. He has also taken the position that, simply by issuing a “signing statement” at the time he signs a bill into law, he may excuse himself from his responsibility under the Constitution to “take care that the laws be faithfully executed.” ...

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