Sidney’s Imperial Presidency

Sidney Blumenthal and I were apparently making the same point at about the same time. Not long after I argued, on a panel on the Imperial Presidency, that there are those within the Administration who believe in the rule of law and can therefore be mobilized against it, Sidney was finishing up his column making that point in much more comprehensive fashion.

In private, Bushadministration sub-Cabinet officials who have been instrumental informulating and sustaining the legal "war paradigm" acknowledge thattheir efforts to create a system for detainees separate from dueprocess, criminal justice and law enforcement have failed. One of thekey framers of the war paradigm(in which the president in his wartime capacity as commander in chiefmakes and enforces laws as he sees fit, overriding the constitutionalsystem of checks and balances), who a year ago was arguing vehementlyfor pushing its boundaries, confesses that he has abandoned his beliefin the whole doctrine, though he refuses to say so publicly. If he wereto speak up, given his seminal role in formulating the policy and hisstature among the Federalist Society cadres that run it, his rejectionwould have a shattering impact, far more than political philosopherFrancis Fukuyama’s denunciation of the neoconservatism he formerlyembraced. But this figure remains careful to disclose hisdisillusionment with his own handiwork only in off-the-recordconversations. Yet another Bush legal official, even now at thecommanding heights of power, admits that the administration’s policiesare largely discredited. In its defense, he says without a hint ofirony or sarcasm, "Not everything we’ve done has been illegal." Headds, "Not everything has been ultra vires" — a legal term referringto actions beyond the law.

The resistance within the administration to Bush’s torturepolicy, the ultimate expression of the war paradigm, has come to an endthrough attrition and exhaustion. More than two years ago, VicePresident Dick Cheney’s then chief of staff I. Lewis "Scooter" Libbyand then general counsel David Addington physically cornered one of thefew internal opponents, subjecting him to threats, intimidation andisolation.