Is America Turning Into An Elective Dictatorship?

Is the Bush Administration undermining the U.S. system of checks and balances?

August 30, 2002

Is the Bush Administration undermining the U.S. system of checks and balances?

Is the Bush Administration — in the name of an open-ended and vaguely defined "war on terrorism" — undermining the constitutional basis of the American republic? In the months after September 11th, this claim by libertarians was often considered alarmist. A year later, however, a growing number of American conservatives, liberals and centrists alike — as well as observers outside the United States — are wondering whether the alarmists are right.

In the aftermath of September 11, the Bush Administration was justified in many of its actions. For example, the temporary detention of foreign residents, many of them in the United States in violation of immigration law, was arguably justifiable — until, that is, it could be established that they were not part of the al-Qaeda network.

But the Bush Administration has gone far beyond what reasonable caution required.

The administration claims that the President has the unchecked power to hold U.S. citizens like Jose Padilla, the accused al-Qaeda operative, in detention indefinitely without trial and without legal redress, merely by naming them "enemy combatants" or alternately "material witnesses." One wonders how it is possible to reconcile the President's constitutional oath with such a bold contravention of the 6th amendment to the U.S. Constitution.

The administration also claims that foreign terrorists can be tried and executed by military courts answerable only to the president. This last claim is particularly puzzling, because the government decided to try Zacarias Moussaoui — the accused 9-11 conspirator — in a federal civilian (and not military) court. It all strongly underlines just how arbitrary the administration's approach has been — an arbitrariness more characteristic of a dictatorship than of a constitutional democracy.

From the beginning, the Bush Administration has defined the campaign against terrorism in military rather than legal terms. This is a mistaken strategy. Outside of Afghanistan, the al-Qaeda terrorist network operates more like an international drug cartel than like a conventional military force.

Accordingly, winnowing out the members of this syndicate chiefly requires police work and intelligence cooperation in many countries. The military has, at best, a minor and subordinate role to play.

Unfortunately, some in the Bush Administration appear intent on inserting commandos ready to kick down the door to terrorism suspects in countries like Britain and France and Germany.

Secretary of Defense Donald Rumsfeld's reported enthusiasm about sending Special Forces to capture, or assassinate, suspected terrorists on the soil of foreign countries — perhaps without the permission of their governments — is troubling.

After all, it raises the prospect of an American version of the Israeli Mossad's secret death squads. Imagine, "extra-legal" U.S. assassination squads operating in London, Paris and Berlin.

Why not ask local police to arrest the suspects, and turn them over to U.S. prosecutors to be tried in federal courts?

One thing is for certain: Americans have never understood the role of the American soldier abroad to be judge, jury — and executioner.

To be sure, relatively few people, either citizens or foreigners, are affected by the Bush dragnet or by anti-terrorism policies at home or abroad. But the entire American people — along with U.S. allies — have a great deal at stake in the debate about whether a U.S. president has the unchecked power to wage wars at will.

To prevent presidents from waging wars on their own, the Founding Fathers were careful to give Congress the power to initiate war. The only exception involved cases in which another country attacked the United States.

The president could then defend the nation — until Congress could be assembled. For example, after the Japanese attack on Pearl Harbor and other U.S. targets, President Roosevelt ordered the armed forces to resist until Congress could declare war.

Every major war that the United States has fought — with the exception of the Korean War — was authorized in advance by congressional action. Even the Vietnam War was authorized by the Southeast Asia Resolution — better known as the Gulf of Tonkin Resolution — of 1964.

For the Korean War, President Truman claimed the authorization of the United Nations, rather than Congress, an argument that remains dubious.

The war against the Taliban regime and al-Qaeda was specifically authorized by Congress — which also specifically limited U.S. hostilities to governments supporting the al-Qaeda terrorists. (The inability of proponents of war against Iraq to provide plausible evidence of links between Saddam Hussein and al-Qaeda is a strong source of frustration to them).

President Bush and his advisors, breaking with the constitutional tradition, claim something breathtaking: A U.S. president, in the absence of an attack or imminent attack on the United States, its armed forces or treaty allies — can undertake a pre-emptive war against any country that this or that president thinks might pose a speculative threat in the future.

According to the Bush Administration, the president can order as many as a quarter of a million U.S. soldiers to invade Iraq — and occupy it indefinitely without any further authorization by the U.S. Congress and the UN Security Council, which authorized the first Gulf War. The Founding Fathers would have been shocked by these claims.

Whether a second war against Iraq is a good idea or not can be debated. One thing is clear: If a president can wage wars at will, in defiance of the provisions of the Constitution that give the major responsibility for initiating war to Congress, then the United States will no longer be a constitutional, democratic republic. It would be an elective dictatorship.

And if the redefinition of anti-terrorist law enforcement in military terms means that a president can suspend the civil liberties of citizens by transferring them to military jurisdiction, this implies something equally troubling: The elective dictatorship would be extended to the sphere of domestic policy from the arena of national defense.

True, the new American dictatorship would be an elective one. Savor the irony: the dictator could be peacefully removed by the voters in the next presidential election — and replaced by a new four-year dictator.

Provided, of course, that some future dictator did not treat the constitutional provisions for regular elections the same way that some in the Bush Administration are treating the constitutional provisions for going to war.

Consider the further logical consequences of this slippery slope: Once the rule of law and checks and balances have been eliminated, our four-year tyrants might be restrained only by public opinion polls. The new, all-powerful presidents might be benign and enlightened. But what if they were not?

When the drafters of the federal constitution emerged from their labors in Philadelphia in the summer of 1787, a lady asked Benjamin Franklin if the new government was to be a monarchy, or a republic. Franklin is supposed to have replied, "A republic, Madam, if you can keep it."

The American people never abandoned constitutional government, even during crises far more dangerous than those of the present, like the Civil War and the world wars.

The Founders would have called the policies of the Bush Administration (like presidential war-making, detentions eerily reminiscent of police-states and secret trials) "tyrannical." These actions, after all, are similar to the actions that provoked the key complaints of the 13 colonies against King George III.

The growing opposition among the U.S. public, Congress and the courts to these policies is therefore reassuring. It seems that we Americans still want to keep our republic after all.

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