Tug of war over presidential powers

The domestic spying program is renewing debate among the three branches of government.

The revelation that President Bush secretly authorized a domestic spying program after 9/11 is fueling the already heated debate over presidential power.

From the administration's treatment of suspected terrorists to its drive for secrecy in deliberations over energy policy, Mr. Bush's five years in office have been marked by efforts to expand the executive branch's unfettered reach.

The tug of war among the three branches of government is as old as the Republic. But the convergence of three factors makes this struggle arguably unparalleled in the modern era: an administration that came to office determined to reclaim what it saw as the executive branch's diminished place; Republican control of the White House and Congress, raising questions about checks and balances; and the 9/11 attacks, which put America on the kind of war footing that historically opens the path to extraordinary action by the president.

"I think 9/11 opened a lot of doors," says Fred Greenstein, a presidential scholar at Princeton University. "It set a fire going within Bush so that he's not just a competent executive who's really going to get things done. He has a fervor that he didn't have - a fervor for fulfilling a historical mission."

Suddenly, the MBA president had become the war president - and all campaign-era talk of conducting a "humble foreign policy" ceased. The consensus behind an urgent need to prevent further attacks resulted in the Sept. 14, 2001, passage by Congress of a joint resolution authorizing the president to "use all necessary and appropriate force" to protect the country - a document the administration now uses to justify the warrant-less eavesdropping program. The antiterror Patriot Act, passed soon thereafter, also enhanced the government's power to pursue alleged enemies.

Behind the president stood Vice President Cheney, whom analysts see as the real ideological force for restoring the executive branch to its rightful position, as he sees it. From his perch as President Ford's chief of staff in the 1970s, Mr. Cheney saw first-hand the effect of a presidency reined in - a consequence of laws aimed at preventing the abuses of power that resulted in President Nixon's resignation.

This week, the normally taciturn vice president spoke expansively to the press pool traveling with him abroad about his philosophy on presidential power.

"A lot of the things around Watergate and Vietnam, both, in the '70s served to erode the authority, I think, the president needs to be effective especially in the national security area," Cheney said Tuesday.

Cheney cited the War Powers Act of 1973, which requires the president to obtain congressional approval within 90 days after introducing troops into hostilities, and the Budget Control and Impoundment Act of 1974, which was a slap at Nixon's practices around the impounding of funds for programs he did not like.

Cheney also offered a treatise on how presidential power has waxed and waned through history, calling the presidency a weak institution in the late 1800s, which then got stronger under Theodore Roosevelt. Franklin Roosevelt, he said, established a sense of the "modern presidency." Then came Vietnam and Watergate, and the limitations on presidential power that resulted. "But I do think that to some extent now, we've been able to restore the legitimate authority of the presidency," Cheney concluded.

The only problem with Cheney's analysis, says Bruce Fein, a constitutional scholar and former Reagan administration lawyer, is that these limitations on presidential power had been gutted long before Cheney assumed the vice presidency.

The demise of the legislative veto in 1983 and Congress's general reluctance to cross the president's wartime powers has rendered these "museum pieces," says Mr. Fein. "So what's the continuing push on executive power to greater and greater heights here?"

The answer is politics. Republicans in Congress have been loath to challenge a Republican president. But that is now changing, analysts say, with the president struggling with low job-approval ratings (still below 50 percent, despite the recent uptick), the continuing unpopularity of the Iraq war, and with the 2006 midterms looming large for members seeking reelection - or with possible presidential aspirations.

Congress passed legislation banning torture of detainees over the White House's objections, including lobbying efforts by Cheney. And now the administration faces the expiration of some elements of the Patriot Act over some senators' concerns for civil liberties.

But in general, Congress's inclination on matters of national security is to defer to the president. "They'd rather be on the safe side," says historian Herbert Parmet, biographer of the first President Bush.

The unspoken bargain at play is who would face blame, should there be another terror attack on American soil. No one wants the finger pointed at them - which, in the post-9/11 world, has made Congress less inclined to challenge the president, and the president more inclined to be seen doing whatever it takes to protect the nation.

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