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chapter 4 The Return of the Imperial Presidency Marouf Hasian Jr., University of Utah The last significant check on the imperial presidency was the electorate, and on November 2 it failed. Chalmers Johnson, 2004 When George W. Bush’s administrative decision makers looked for judicial precedents that would help them deal with exigencies like 9/11, we now know that they had plenty of judicial cases from which to choose. On the one hand, our legal archives are filled with legal opinions that have jurists and treatise writers commenting on how the mere declaration of an emergency was enough to constitute a national exigency, how quick responses were needed in dangerous situations, and how wartime needs occasionally trumped civil liberties.1 This would later be characterized as the Ex parte Quirin, or strong national security position.2 70 | Marouf Hasian Jr. On the other hand, the spokespersons for the Bush Administration could have turned to those decision makers who have talked about inherited suspicions of standing armies, the primacy of legislative power, the importance of judicial review, and the need to have civilian oversight of military decisions.3 Since at least the time of Cromwell pundits have worried about the royal prerogatives , the rhetorical claims associated with the aggrandizement of power, and the importance of having legal constraints This second approach—what some scholars call the Ex parte Milligan line of argument (the Milligan case is discussed later)—would ask us to view emergencies as extraordinary events, when the concomitant discretionary powers of the executive would be relinquished with the end of temporary emergencies.4 In this chapter I argue that these two major frameworks for analyzing executive power are themselves the accretive remains of some older Anglo-American legal frameworks that take us back to the time of the Whigs and the Tories. It will be one of my contentions that both of these approaches make up a part of our complex modern discussions of the alleged “imperial” nature of Bush’s presidency.5 During most of September 2001, American Democrats and Republicans rallied around the U.S. president, and there were few observers who doubted that the passage of the Patriot Act would be a matter of national security.6 There appeared to be a strong public consensus that communal necessities outweighed individual liberties—and these communal beliefs influenced our debates over airlines and racial profiling, deportation hearings, the surveillance of citizens, and the tracing of Al Qaeda funding. The political landscape changed when President George W. Bush suddenly announced that part of his weaponry in the war against terrorists would include the “Military Order of November 13, 2001,” which dealt with the “Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism.”7 As George Will once observed, the potential use of these military tribunals, along with some of his other antiterrorist policies, was generating what Will called “imperial presidency anxiety.”8 Both liberals and conservatives worried that perhaps the president’s legal advisors were going too far too fast and taking us in directions that might hurt, rather than help, the war effort. One anonymous writer for the Nation would later aver that “the assumption of imperial powers” was reflected in Bush’s unilateral activities and his supposed tendency to “mislead the public,” but critics need to admit that there were many times when the president’s views were very transparent.9 This was not the first time that the nation had an inkling that America’s chief executive was thinking about taking this kind of action. On September 20, 2001, for example, President Bush told listeners that the country needed to “bring our The Return of The Imperial Presidency | 71 enemies to justice or bring justice to our enemies.” He also announced that he was going to give an executive order that allowed for the possibility that some of the “terrorists” would have to appear before military commissions. Josh Tyrangiel has noted that since that speech, “the sharpest legal minds in the White House and Department of Justice have been working to turn the President’s poetic abstraction into specific judicial doctrine.”10 After hearing Bush talk about antiterrorism on national television, Michael Beschloss told listeners that “the imperial presidency is back. We just saw it.”11 Other critics who lament the advent of Bush’s “imperial presidency” focus on more macro, external activities that go beyond the study of single speeches or their reception. Robin Blackburn, for example, argues that the...


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