Unchecked and Unbalanced: Presidential Power in a Time of Terror

Benjamin Franklin, when asked what type of government we had created, is said to have replied, "A republic, if you can keep it." "Unchecked and Unbalanced" shows why America is in danger of being transformed into a monarchy by the Bush Administration, reporting how this new theory of unchecked presidential power developed and why it is wrong. The authors also contend that the theory is not a response to 9/11, but long nurtured by Cheney and his assistant David Addington from at least the days of the Iran-Contra investigation, and even followed (to a much lesser extent) by Bill Clinton. Executive branch lawyers now describe an ongoing (not just emergency) power to set aside legal checks imposed by Congress and to even act when Congress is silent. This authority extends to treaties as well, and at least one Office of Legal Council (OLC) leader claims coverage of judicial decisions as well. Lincoln acted early on at the start of the Civil war without Congressional authorization, and even ignored an order by the Chief Justice. The difference between Lincoln and Bush is that Lincoln did not do so on an on-going basis, sought subsequent approval, and did not act in secret. "Unchecked and Unbalanced" provides rationale for concluding that OLC's conclusions are wrong; it also asserts that the OLC claims were developed without adherence to professional obligations - eg. they failed to identify, let alone respond to, weaknesses in their legal arguments, and failed to mention key Supreme Court cases. Finally, to protect our republic, the authors recommend Congress hold hearings and act, and that the Supreme Court follow suit. Unfortunately this is made difficult by executive branch supervision of intelligence gathering and distribution.

The authors documents how the Bush Administration, in an effort to fight terrorism, has side-stepped the constitution, circumvented the Geneva Convention, and broken countless other laws. The authors describe how the net result is an erosion of the moral character of America, which, in the long run, is counterproductive in the war on terror.

Frederick A.O. Schwarz Jr. is senior counsel at the Brennan Center for Justice at NYU School of Law and a partner at Cravath, Swaine & Moore. He was chief counsel to the Church Committee. Aziz Z. Huq is associate counsel at the Brennan Center and previously clerked for the U.S. Supreme Court. This is a book you will not be able to put down, in which they demonstrate and document how the Bush administration has gone further than Nixon or Reagan ever dreamed to create a monarchical presidency with the acquiescence of a complicit Congress and a cowed judiciary.