As citizens, many of us in the U.S. are uncomfortable with a president who claims powers that place him above the law, even the Constitution, and immune from both judicial and Congressional oversight, even during the perpetual "Global War on Terror." President George W. Bush’s justification, in the words of the Justice Department, is that: "The Constitution vests in the President inherent authority. . . . Congress cannot extinguish that authority. . . . [He is] justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties." This rationale covers use of severe interrogation; trying accused terrorists before military commissions; unlimited detention of "enemy combatants," including U.S. citizens; secret "rendition" to overseas prisons, and warrantless domestic eavesdropping.
As Quakers, we may well have additional cause for unease. I believe that we are seekers after Truth, the Light to guide our actions. Often we discern this best in community, through the insight, counsel, and example of others. All this, a continuous and lifelong learning, living, growing process, is itself a source of joy.
This being so, can we accept—under any circumstances—near-absolute authority on the part of any one leader who claims to know enough to act alone, and who claims to command sufficient wisdom and power to secure the nation from the "barbarian at the gates," without the checks and balances in the Constitution?
Apart from the headlines, which often miss the real story of a five-year accretion of "unitary" power, what is the evidence of presidential power freed from accountability? And what, if anything, do Quakers have to do about it?
Presidential Signing Statements
The president has used a set of tools, like presidential signing statements and executive orders, which are at the disposal of all presidents, but with an unprecedented frequency and impact on governance. Crucially, when he signed the much-publicized Detainee Treatment Act, which forbids torture and cruel, inhuman, and degrading treatment, the president, contrary to his pledge, used his signing statement to assert his powers as commander in chief to waive its restrictions.
A second, less-reported provision (the Graham Amendment) strips courts from hearing most Guantanamo lawsuits contesting detention and abusive treatment: "No court, justice, or judge shall have jurisdiction to hear or consider" petitions, effectively permitting use of torture-derived evidence in the military commissions. It thus nullifies the habeas corpus right of persons under U.S. jurisdiction (Article 1, Section 9 and three Amendments). The Supreme Court had previously ruled that federal courts had jurisdiction over "enemy combatants" in Guantanamo because it is a U.S. site; it also held that military commissions violate the Geneva Conventions by denying prisoners the same legal protections as any U.S. court-martial.
In his signing statement, President Bush asserted power to waive habeas corpus. This again broke his promise to allow 150 detention cases already before the courts: within days, administration sought to dismiss those 150 cases.
Another strongly wielded tool of this "unitary executive" is executive orders, which have the status of law without Congressional legislation, and which expire at the end of an administration. The Faith-Based Initiative operates under this authority. The administration boasts it has made up to $2 billion available to faith groups, often its conservative religious base; yet it is outside the media spotlight.
This program includes funds for "abstinence only" sex education in high schools, growing from $50 million to over $200 million. At least three states now refuse these funds. Maine stopped a conservative group, which has a $1.5 million federal grant to teach abstinence only, from doing so. Administration officials transferred evaluation of the program from the Centers for Disease Control, recognized as expert in sex education research, to the Health and Human Services unit on Children and Families, which has more ideological leadership.
The widely reported secret presidential order, predicated on his "findings" that certain facts warrant extraordinary actions (that is, covert work of intelligence agencies), created the National Security Agency program of warrantless eavesdropping of international-domestic communications of suspected terrorists, but without law-mandated approval by the secret Foreign Intelligence Security Act (FISA) court, despite explicit Congressional and Justice Department objection.
Quakers in several states are aware of being secretly surveilled by the FBI for peaceful dissent of the wars and the education of young people about nonmilitary options for their future.
Seeking the Balance of Powers
The gradual distortion of power balance has been contested by civil society groups and individuals. Several major cases are reaching the new, more conservative Supreme Court, which will go far in determining the extent of presidential power.
One such case is that of Salim Ahmed Hamdan, a Yemeni who has challenged the Guantanamo military commissions. An appeals court ruled he could challenge detention. The Supreme Court will decide whether it has jurisdiction to proceed or whether Congress, in the Graham Amendment, closed the Federal courts to Hamdan and the 150 other detainees. If it upholds the administration, it will mean court access can be controlled by the executive branch. Civil rights groups claim the amendment, by stripping the courts of detainee claims and removing the right of habeas corpus, is unconstitutional.
A second case is U.S. citizen Jose Padilla, first charged as a "dirty bomb" suspect based on testimony acknowledged to be torture-derived. He was held for three years in solitary military detention as an enemy combatant. The Court will decide whether the government can deny juridical rights to a citizen arrested in the United States and use military tribunals instead of the federal courts for offenses. To avoid this high court challenge, the administration changed the charge and transferred Padilla to civilian criminal court. However, civil liberties groups are arguing for a Supreme Court review.
Freedom of dissent, personal privacy, juridical rights, and adherence to transparency and accountability that is requisite to a strong democracy require active involvement of the Constitutional institutions, fulfilling their responsibility to balance national security, human rights, and liberty. Should the courts or Congress step back, the balance of power becomes dangerously distorted. When the media seek excitement and ignore less dramatic and time-consuming truths, we are disadvantaged. Nonetheless, Quakers know well that truth-seeking takes constant effort, and we are not absolved from searching for truth in public affairs and for spiritual truths—as though these can be separated—and then acting on them.