According to a recent Associated Press article, U.S. Secretary of State Condoleezza Rice and Defense Secretary Robert Gates were in Russia on Friday to discuss a missile defense system in eastern Europe. The Americans received a less-than-warm welcome since the Russians are opposed to having American missiles in their back yard. Missile defense wasn't the only thing on Rice's mind, however. Apparently, she expressed concern that Russia's president, Vladimir Putin wields a bit too much power and his excessive powers pose a threat to the development of Russia's nascent democracy.
Per the article, Rice told reporters, "In any country, if you don't have countervailing institutions, the power of any one president is problematic for democratic development." She went on to say, "I think there is too much concentration of power in the Kremlin... Everybody has doubts about the full independence of the judiciary..." Also, referring to the Russian parliament, she said, "there are, I think, questions about the strength of the Duma."
For once, I agree with Secretary Rice. Too much power in the hands of any one branch of government is unhealthy, indeed. Oddly, though, Rice's concern seem to contradict one of the underlying principles of the neoconservative movement and George W. Bush's presidency. That principle, known as the Unitary Executive Theory, holds that the legislature and the judiciary should have strict limits on their abilities to check the president's powers. In other words, the idea is that the presidency should not be a branch of government equal to the legislature or the judiciary, but that it should hold powers above those of the other two.
To see this principle in action, one might consider President Bush's use of signing statements. An article that appeared in the Boston Globe last year revealed that a report by the non partisan Congressional Research Service described Bush's signing statements as, "an integral part (of his) comprehensive strategy to strengthen and expand executive power" while holding the powers of the legislative branch at bay. The report also said that the, "broad and persistent nature of the claims of executive authority forwarded by President Bush appear designed to inure Congress, as well as others, to the belief that the president in fact possesses expansive and exclusive powers upon which the other branches may not intrude."
The Globe article gives us some examples of how Bush employs signing statements. In one particular example, when Bush signed the 2007 military budget bill, he issued a signing statement that challenged 16 of its provisions. "The bill bars the Pentagon from using any intelligence that was collected illegally, including information about Americans that was gathered in violation of the Fourth Amendment's protections against unreasonable government surveillance. In Bush's signing statement, he suggested that he alone could decide whether the Pentagon could use such information. His signing statement instructed the military to view the law in light of, 'the president's constitutional authority as commander in chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch.'"
Sidney Blumenthal, in an article that appeared in The Guardian last year, wrote that John Yoo, the former justice department official who has defended President Bush's policies on torture, detainees, and domestic surveillance without warrants, has also defended the unitary executive theory. Blumenthal described the theory; "the president, as commander-in-chief, is sole judge of the law, unbound by hindrances such as the Geneva conventions, and has inherent authority to subordinate independent government agencies to his fiat." Blumenthal's article also quoted Samuel Alito (a federal judge in 2000) as describing the unitary executive theory as "gospel... that best captures the meaning of the constitution's text and structure." Undoubtedly, this view served Alito well in his nomination by Bush to the Supreme Court of the United States.
An article by Scott Horton that appeared in Harper's back in June indicated that about 30 percent of the laws that Bush has signed have been subject to these signing statements, per a report by the non-partisan General Accounting Office. The Harper's article provides three examples of laws that Bush found deserving of signing statements:
1. In 2005, after Congress passed a law outlawing the torture of detainees, Bush issued a signing statement saying that he would "construe [the law] in a manner consistent with the constitutional authority of the President . . . as Commander in Chief," which experts say means Bush believes he can waive the restrictions.
2. In 2006, Congress passed a law requiring minimum qualifications for future heads of the Federal Emergency Management Administration in response to FEMA's poor handling of Hurricane Katrina. When Bush signed the law, he issued a statement saying he could ignore the new restrictions and appoint a FEMA chief based on whatever qualifications he wanted.
3. In 2006, Bush signed a statement saying he would view a ban on "the transfer of nuclear technology to India if it violates international non proliferation guidelines" as "advisory." Indian newspapers reported that the government of India took note of Bush's statement, "raising the possibility it would not take the ban seriously."
All of this raises the following question: How can Bush Administration officials criticize Putin, or any other head of state, for seeking to concentrate power in his own hands at the expense of democratically elected legislatures' powers when such power concentrations are at the very heart of the Bush Administration's and the neoconservatives' governing philosophies? If Rice is so concerned about the effects of Putin's efforts to concentrate power in his own hands, does she recognize that similar efforts by President Bush might have similarly damaging effects on American democracy?
I wonder how many of today's proponents of the unitary executive theory would still cling to that theory under a President Clinton or President Obama. Or would they dispense with a theory that they suddenly found obsolete?