Looking back over the last year, it's one of the most important issues America faced. Looking ahead, it could turn out to be the "sleeper issue" of the 2008 presidential race.
I'm talking about executive power, the way it is used -- and has been abused over the last 7 years.
In a very revealing piece in the Boston Globe, Charlie Savage lays out the results of a questionnaire the Globe sent to the presidential candidates on the limits of executive power, asking their views on the Bush administration's expansive view of presidential authority.
It's hard to overstate how vital this issue is, or how far off the media radar screen it remains. Indeed, it's hard to think of another issue in which the importance-to-the-public
/attention-paid-by-the-media ratio is as out of whack.
As Savage -- who won a Pulitzer for his coverage of Bush's use of signing statements, and is the author of Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy -- puts it:
"Bush has bypassed laws and treaties that he said infringed on his wartime powers, expanded his right to keep information secret from Congress and the courts, centralized greater control over the government in the White House, imprisoned US citizens without charges, and used signing statements to challenge more laws than all predecessors combined."
True, a lot of the harm Bush has done can be rolled-back or repaired. But the way he wielded executive power greatly increased the ability of the executive branch to do damage. And the problem is, even well intentioned executives don't like to give up power.
It's easy to imagine the next president saying: Sure, Bush used his increased prerogatives to do damage but, trust me, I'll use them to do good.
The Constitution is a monument to skepticism about such trust. Sure, Mr. President, maybe you are a good person, and maybe you do have our best interests at heart, but don't take it personally if we double-check you with a few laws.
That is not, to put it mildly, a reading of the constitution popular in the current White House.
Which is why the next president's approach to executive power is so crucial. "Legal specialists," writes Savage, "say decisions by the next president -- either to keep using the expanded powers Bush and Cheney developed, or to abandon their legal and political precedents - will help determine whether a stronger presidency becomes permanent."
So what will be the view of the next occupant of the Oval Office? The Globe questionnaire was answered by all the major Democratic candidates, but only three Republicans: Romney, McCain, and Paul. Giuliani sent in a general statement, offering no details -- but given his Imperial Mayorship, it's not hard to imagine him bringing the same approach to Pennsylvania Avenue. Mike Hucakbee and Fred Thompson failed to respond -- perhaps the former is waiting for a call back from God, while the latter was probably just too busy being not very busy.
For those who did respond, the results were fairly encouraging (although it's easier to not abuse power you don't yet have). McCain, Paul, Dodd, Biden, and Richardson all roundly decried the use of signing statements, while Clinton, Obama, and Edwards condemned Bush's use of them, without ruling out that they themselves would use them.
These eight also expressed reservations about the broad claims of presidential power made by the Bush administration.
And then there was Mitt "We Oughta Double Guantanamo" Romney, who seemed intent on proving that when it comes to executive power, he'd sit at the feet of those great Constitutionalists Richard Cheney, David Addington, Alberto Gonzales, Harriet Miers, and John Yoo.
His philosophy on executive power can be summed up in his assertion that "our most basic civil liberty is the right to be kept alive" -- which has been the excuse for undermining civil liberties through the centuries. Turns out Mitt's not so hot on that whole "Give me liberty or give me death" thing. Which is odd, considering that his dad marched with Patrick Henry in Richmond.
Then there was his response to a question about whether the President can use an interrogation technique that Congress has "prohibited under all circumstances."
"A President should decline to reveal the method and duration of interrogation techniques to be used against high value terrorists who are likely to have counter-interrogation training. This discretion should extend to declining to provide an opinion as to whether Congress may validly limit his power as to the use of a particular technique." In other words: "Hey, Congress, take your 'prohibition' and shove it!"
Glenn Greenwald called Romney's stance "an astonishing assertion -- that the Terrorists will win if Mitt Romney expresses his views on whether the President must obey the law."
Then there is this:
Q: "Under what circumstances, if any, is the president, when operating overseas as commander-in-chief, free to disregard international human rights treaties that the US Senate has ratified?"
"The President must carry out all of his duties in a manner consistent with the rule of law, whether it is our Constitution or valid international agreements, so long as they do not impinge upon the President's constitutional authority."
And who would decide whether these "rules of law" and "international agreements" impinge on President Romney's authority? Mitt didn't say, but I'm guessing it wouldn't be the Supreme Court.
But take heart, in answer to a question about the president's power to detain U.S. citizens without charges, Romney allowed, "All US citizens are entitled to due process, including at least some type of habeas corpus."
I actually didn't know there were different types. But, hey, Mitt's a successful businessman, so we should probably trust him.
As I said, the survey showed that unease over the Bush/Cheney embrace of unbridled executive power is not a position that fits the media's favored left-vs-right meme. Ron Paul chided his fellow Republicans' refusal to complete the questionnaire: "What are they trying to hide? Why are they embarrassed to answer the questions?" And McCain flatly stated, "I don't think the president has the right to disobey any law."
That's a more unequivocal stance than that taken by some of the Democrats. It's probably no surprise that Clinton, as Savage put it, "embraced a stronger view of a president's power to use executive privilege to keep information secret from Congress than some rivals."
And on signing statements, Clinton answered: "I would only use signing statements in very rare instances to note and clarify confusing or contradictory provisions, including provisions that contradict the Constitution."
Okay, but, again, who will be the one to decide what provisions "contradict the Constitution"? Hillary and Bill?
Edwards and Obama also refused to completely rule out using signing statements -- and on the question of whether he would follow a Congressional law limiting troop deployments, Edwards answered: "I do not envision this scenario arising when I am president."
But I urge you to read the whole thing for yourselves. As Obama stated in his questionnaire: "These are essential questions that all the candidates should answer. Any President takes an oath to 'preserve, protect and defend the Constitution of the United States.' The American people need to know where we stand on these issues before they entrust us with this responsibility -- particularly at a time when our laws, our traditions, and our Constitution have been repeatedly challenged by this administration."
Let's make it one of our New Year's resolutions to find out where the candidates really stand on these key constitutional issues -- lest this "sleeper issue" stays slumbering and we awake to another presidential nightmare.