December 17, 2009
You can call the executive power “unitary” as Dick Cheney did with some irony, as a vice president sharing heartily in the supposedly unitary power. You could call the executive power multitudinous, or beauteous, or miraculous. But no matter what you call it, you can’t change the fact that it indisputably does not include rendition power or torture power or any of the other criminal powers seized by Bush and Cheney. (Rendition began with President Bill Clinton, but was greatly expanded by Bush, which is what presidents tend to do with powers they’ve been handed by their predecessors. In fact, Obama announced that he would continue rendition but not use it for torture—he would not use “extra-
ordinary rendition.” Once used openly by multiple presidents and left unchallenged, rendition, like other abuses, becomes ordinary.)
The power to decide to kidnap people, disappear them, hang them by their wrists, electroshock their genitals, and hide them away from the world indefinitely simply does not exist in the Constitution. It did exist until 1865, when the Thirteenth Amendment banned slavery. But it existed as a personal, nongovernmental power for any president of the land of the free who happened to own a bunch of human beings (the same power any Congress member or private citizen had). It never existed at all as part of the executive power of the president in his official capacity, as something on which he might openly or secretly spend public funds. To do so would have been, and still is, in violation of the Fourth through Eighth Amendments, which were ratified as the heart of the Bill of Rights (for non-slaves) in 1791.
… Given this level of corruption in the Justice Department, it was not surprising that when, in 2007 and 2008, Congress asked it to enforce subpoenas and contempt citations against its own employees and partisan allies, the Justice Department refused. It was slightly more surprising when in February 2009 the new Justice Department refused to enforce some of the same subpoenas then reissued by Congress. Obama’s White House supported former Bush aide Karl Rove’s claim of “executive privilege” and negotiated partial compliance by Rove with a subpoena from the House Judiciary Committee, openly arguing that this was appropriate in order to maintain presidential power.