Executive Powers

The concentration of all power in one place is the very definition of tyranny. – James Madison, Federalist Papers No. 10

The founding fathers crafted a governmental structure based on the idea that separating powers within that government would result in checks and balances that would prevent any branch of government from becoming tyrannical. It is the deliberate erosion of those checks and balances that most alarms me about the present administration.

The power of declaring war was vested by the Constitution, not in the Executive Branch, but in the Legislative Branch. That branch abdicated its responsibility in granting the Executive the power to attack Iraq in such a way that the president feels that he is also empowered to attack Iran without consulting Congress.

The power of creating laws was vested in Congress, too, but this administration has used signing statements to declare itself exempt from following those laws, thus effectively removing the power of those laws to control Executive behavior in any way.

The power of enforcing laws was vested in the Judicial Branch. Very shortly after 9-11, the Justice Department, through John Ashcroft, presented Congress with a 1200 page law title The Patriot Act. (I have always thought it was amazing that they could so swiftly create such a huge and sweeping act unless they were standing by with it in hand waiting for the right opportunity to present it, and ,further, that this was the Judicial Branch creating law by herding Congress into such swift action without time to study the proposed legislation.) It was rushed through Congress purportedly in a fit of patriotism spurred by 9-11, and it contained provisions that allowed the arrest and detention of persons identified by the administration as being involved in activities dangerous to governmental policies. Those same provisions prohibit anyone else from making knowledge of the arrest public. The ultimate effect of this is that relatives and friends of detainees are not able to protest the arrests through the courts. This gives the Executive Branch power beyond that of the Judicial. It can not only keep the detainees and their families away from the courts, but allows the initial arrest to occur solely on the word of the Executive.

These powers have not yet been used extensively against American citizens, though we can see the methods for their implementation in the way people have been arrested and confined at Guantanamo Bay in Cuba. We can see the shadow of the future in the detention centers which have been and are being built in the United States. Who are they designed to hold?

A clue lies in the fact that last November, the "President" Bush effectively achieved the repeal of the Posse Comitatus Act (PCA) through enactment of the Defense Authorization Act. The 1878 Posse Comitatus Act prohibits any use of the U.S. military for law enforcement while the Military Commissions Act authorizes that use by
". . .allowing the President more control over the National Guard [adopting] changes to the Insurrection Act, which will make it easier for this or any future President to use the military to restore domestic order WITHOUT the consent of the nation's governors." – Senator Patrick Leahy (D-Vermont)

Senator Leahy went on to stress that, "we certainly do not need to make it easier for Presidents to declare martial law. Invoking the Insurrection Act and using the military for law enforcement activities goes against some of the central tenets of our democracy. One can easily envision governors and mayors in charge of an emergency having to constantly look over their shoulders while someone who has never visited their communities gives the orders." A few weeks later, on the 29th of September, Leahy entered into the Congressional Record that he had "grave reservations about certain provisions of the fiscal Year 2007 Defense Authorization Bill Conference Report," the language of which, he said, "subverts solid, longstanding posse comitatus statutes that limit the military's involvement in law enforcement, thereby making it easier for the President to declare martial law." This had been "slipped in," Leahy said, "as a rider with little study," while "other congressional committees with jurisdiction over these matters had no chance to comment, let alone hold hearings on, these proposals." A familiar strategy?

In a telling bit of understatement, the Senator from Vermont noted that "the implications of changing the (Posse Comitatus) Act are enormous". "There is good reason," he said, "for the constructive friction in existing law when it comes to martial law declarations. Using the military for law enforcement goes against one of the founding tenets of our democracy. We fail our Constitution, neglecting the rights of the States, when we make it easier for the President to declare martial law and trample on local and state sovereignty."

The John Warner Defense Authorization Act of 2007, "allows the President to declare a 'public emergency' and station troops anywhere in America and take control of state-based National Guard units without the consent of the governor or local authorities, in order to ''suppress public disorder''"
What's the risk Senator Leahy fears so? Check out this out:

Today, the United States presides over a burgeoning empire - not only the "empire of bases" first described by Chalmers Johnson, but a far-flung new network of maximum security penitentiaries, detention centers, jail cells, cages, and razor wire-topped pens. From supermax-type isolation prisons in 40 of the 50 states to shadowy ghost jails at remote sites across the globe, this new network of detention facilities is quite unlike the gulags, concentration-camps, or prison nations of the past.

Right now, it has only four major centers - the "homeland," Afghanistan, Iraq, and a postage-stamp-sized parcel of Cuba. As such, it already hovers at the edge of its own imperial existence, bringing to mind the unprecedented possibility of a prison planet. In a remarkably few years, the Bush administration has been able to construct a global detention system, already of near epic proportions, both on the fly and on the cheap.

Soon after the attacks of September 11th, 2001, the U.S. began the process of creating what has been termed "an offshore archipelago of injustice." In addition to using "the Charleston Navy Brig" and locking up "one prisoner of war in Miami, Florida," according to the International Committee of the Red Cross, the Bush administration detained people from around the world in sweeps, imprisoned them without charges and kept them incommunicado at U.S. detention facilities at a CIA prison outside Kabul, Afghanistan (code-named the "Salt Pit"), at Bagram military airbase in Afghanistan, and at Guantanamo Bay Naval Station, Cuba, among other sites.

We may never know how many secret prisons exist (or, for a time, existed) in the shape-shifting American mini-gulag, but according to the Washington Post, some locations for these black sites include itinerant CIA detention centers "on ships at sea," a site in Thailand, and another on "Britain's Diego Garcia island in the Indian Ocean."

Earlier this year (2006), news broke that Halliburton subsidiary, KBR - the firm infamous for building prison facilities at Guantanamo Bay and for scandals stemming from work in the Iraq war zone - received a $385 million contract from the Department of Homeland Security (DHS) to build detention centers (in the United States), according to the New York Times, "for an unexpected influx of immigrants" or "new programs that require additional detention space." -- American Prison Planet By Nick Turse,

Every American should fear the potential apparent in a super strong Executive Branch unchecked by the balance of powers as much as James Madison did if not more given the mounting evidence of Executive disregard for public and Legislative opinion. Even if the Bush Administration never uses these potentials, a future administration could unless we have the foresight to dismantle them, and I don't see many signs of that.

Be the change you wish to see in the world. – M. K. Gandhi

Yours in Peace - BR