Sunday, October 21, 2007

Gergen reviews four new books on the Bush Administration

David Gergen weighs in on the Bush presidency in a review of four recent books in today's Boston Globe. On Gergen's argument that George Bush is no Richard Nixon, I expect that historians will have much more to say in the decades to come. One way to compare their records on constitutional rights and powers will be to assess the overall state of constitutional law as practiced at the end of both presidencies, something the current genre of Bush Administration books is not taking up.
The books reviewed are:

Dead Certain: The Presidency of George W. Bush by Robert Draper (Free Press)

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....

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."...

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....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.

Read Gergen's extended review here.