Amidst all the discussion and debate about whether President Bush has
violated the law by ordering the National Security Agency (NSA) to record telephone
conversations, we must not overlook an important fact: the United States is
now traveling in uncharted waters, ones in which the ruler of the nation is
exercising omnipotent power over the American people. A more appropriate word
would be one that offends some Americans when it is applied to their system
of government: dictatorship. But as uncomfortable as that term might make Americans,
the fact is that ever since 9/11 Americans have been living under dictatorial
What is a dictator? A dictator is a ruler whose powers are omnipotent, that
is, unconstrained by external or superior law. A dictator has the power to take
whatever actions he wants without concerning himself about whether they are
legal. Anything the dictator does is legal because he is the law.
It wasn’t always that way in the United States. When the Constitution
was enacted, its goal was not only to call the federal government into existence
but also to ensure that it would not be headed by a dictator. To accomplish
that, the Framers inserted language expressly limiting the president to a few
well-defined powers. If a power wasn’t enumerated, the president could
not legally exercise it. The Constitution was the higher law that governed the
actions of all federal officials.
What if the president intentionally violated those restrictions? The Constitution
provided two remedies. First, the judicial branch could declare the president’s
acts to be in violation of the Constitution and order him to comply with its
judgment. As the Supreme Court held in the famous case of Marbury v. Madison,
the judicial branch’s determination of constitutionality trumped the president’s
opinion of constitutionality.
Second, the Constitution gave the legislative branch of government –
the Congress – the power to impeach the president and remove him from
What many Americans fail to understand is that it is entirely possible to have
democracy and dictatorship at the same time. Democracy entails the use of elections
to place people into positions of power. Dictatorship entails the extent of
the powers that the ruler is able to exercise after he assumes office.
Therefore, it is entirely possible to have a democratically elected dictator
– a person who has been duly elected to office who exercises dictatorial
powers. This is exactly the case of George W. Bush.
Some Americans become offended whenever critics bring up the name of Adolf
Hitler in discussing the dictatorial powers that President Bush is now exercising.
They miss the point. When critics bring up Hitler’s name in the context
of Bush’s exercise of dictatorial powers, they’re not suggesting
that Bush and Hitler are somehow equivalent evils or that Bush has committed
the horrors that Hitler committed.
What they’re instead saying is that Hitler sets a good benchmark for
what dictatorship involves. Therefore, he provides a good means by which to
measure the powers being exercised by another ruler. If George W. Bush or any
other American president exercises the same types of omnipotent powers that
Hitler exercised, that should serve as a powerful wake-up call for the American
people, who have long wondered how the German people could have allowed Hitler
to become a dictator (see my article “How Hitler Became a Dictator”).
Therefore, the issue is not whether Bush is a “good” man, as many
of his supporters contend. The issue is whether this “good” man
has assumed dictatorial powers in the wake of 9/11. The issue also is whether
any man, good or evil, should ever be given dictatorial powers.
In fact, Vice President Cheney was making much the same point when he recently
said that Venezuela’s democratically elected president, Hugo Chavez, was
comparable to Hitler. Cheney wasn’t suggesting that Chavez had instituted
concentration camps in which millions were being killed. What he was saying
was that Chavez, albeit democratically elected, was “consolidating power.”
The question that the American people must ask is: Has President Bush been
doing the same thing – “consolidating power” – ever
since 9/11, especially as part of his “war on terrorism” and his
invasion of Iraq? Everyone would have to concede that he has.
Consider the specific powers the president is claiming:
1. The power to order the Pentagon to take any American anywhere
in the world, including here in the United States, into custody and punish him,
even execute him, without according him the protections of the Bill of Rights.
Under this power, all the Pentagon has to do is place a document in front of
the president labeling any particular American a “terrorist,” and
once the president signs it the Pentagon has the omnipotent power to punish
Does the person who is labeled a “terrorist” have the right to
appeal such a determination? No. Even if the designated terrorist is a newspaper
editor, a prominent celebrity, or a well-known anti-war critic, the president’s
determination is final. Keep in mind that, according to the president and the
Pentagon, we are at war and neither the courts nor the Congress should be permitted
to interfere with the military decisions made by the Pentagon and the commander
Are there any restraints on the particular type of punishment that the military
metes out to a designated terrorist? No. Since the president and the Pentagon
consider a terrorist to be an illegal enemy combatant, they refuse to be bound
by the Geneva Convention, which provides long-established protections for prisoners
of war. No one needs to be reminded of how U.S. military personnel have subjected
the “terrorists” held in U.S. facilities at Guantanamo Bay, Abu
Ghraib, and elsewhere to torture, sex abuse, rape, and murder. While Americans
have not been subjected to the same mistreatment, that is simply owing to a
discretionary decision by the president and the Pentagon; it could be changed
at any time.
2. The power to record telephone conversations of the American
people without first securing a search warrant from a magistrate in the judicial
branch, as the Bill of Rights requires. In fact, under the president’s
rationale, there’s nothing to prevent him from conducting any warrantless
searches as long as they are part of the “war on terrorism.”
3. The power to send the entire nation into war against a
foreign nation without a declaration of war from Congress, despite the fact
that the Constitution expressly delegates that power to Congress, not the president.
No one can deny that those three powers are dictatorial in nature. But it’s
important that they be considered in the context of the president’s own
justifications for exercising such powers. It is those justifications that have
sent America sailing into the uncharted waters of dictatorial rule.
The congressional justification
The president cites two primary justifications for exercising omnipotent power,
which he interweaves. First, he says that Congress authorized him to take whatever
measures he deemed necessary to seek out and arrest or destroy the terrorists
who were responsible for the 9/11 attacks. Second, he says that since we are
now at war – the “war on terrorism” – he is able to
exercise omnipotent powers as the nation’s military commander in chief.
Bush’s first justification involves the congressional resolution that
was enacted in the wake of the 9/11 attacks, which authorized him to use force
against those who had conspired to carry out the attacks.
Ironically, Bush’s justification is quite similar to the one that Hitler
used to justify his dictatorial powers. After the terrorist attack on the German
parliament building, Hitler went to his legislature and argued for a temporary
suspension of civil liberties. After heated discussion and debate, including
Hitler’s suggestion that such legislation was necessary to protect the
freedom of the German people, the necessary number of votes for passage was
finally secured. The law granting dictatorial powers to Hitler became known
as the “Enabling Act.”
How is this different, in principle, from Bush’s claim that the authorization-of-force
resolution that Congress enacted immediately after 9/11 gave him omnipotent
powers to deal with the “terrorists”?
There are two major problems with Bush’s reasoning. One is that, unlike
Germany’s Enabling Act, which expressly suspended civil liberties, the
resolution enacted by Congress did not do any such thing. Yet Bush is effectively
interpreting it to mean that Congress granted him what the German Enabling Act
granted Hitler – the power to override constitutional protections of civil
More important, however, is the fact that, under the U.S. Constitution, Congress
is not empowered to pass laws that nullify the protections and guarantees in
the Constitution. The only way that any provision in the document can be nullified
is through constitutional amendment. A statutory attempt to nullify jury trials,
search warrant requirements, due process of law, and right to counsel has no
legal effect whatsoever.
The commander in chief justification
Bush’s other justification for the assumption and exercise of omnipotent
powers is his role as commander in chief of the armed forces during a time of
war. What war? The “war on terrorism,” which, again ironically,
was the same type of war that Hitler declared after terrorists struck the Reichstag
with a firebomb.
There is one crucial difference between Hitler’s claim of power and Bush’s
claim of power, however. The Enabling Act was only a temporary grant of powers.
Each time it was set to expire, Hitler would duly return to the Reichstag and
secure legislation “temporarily” extending it.
Bush’s rationale for his omnipotent powers, on the other hand, is that,
as the nation’s military commander in chief in the “war on terrorism,”
his omnipotent powers will last as long as the war continues. Of course, since
it is impossible to know with any degree of certainty when the last terrorist
is exterminated or neutralized, that means that for all practical purposes the
“war on terrorism” is perpetual, which means that Bush’s powers
are perpetual as well (and will as well be held by his democratically elected
successor in 2009).
There is no merit whatsoever, however, to Bush’s argument that the Constitution
grants omnipotent powers to a president when he puts on the helmet of a military
commander in chief. In fact, there is no suggestion whatsoever in the Constitution
that war gives rise to the exercise of any powers that nullify any of the other
restrictions on power in the Constitution, especially in the Bill of Rights.
What Bush is relying on is the old European notion of imperial dictatorial
powers that were claimed by a ruler when he led his military forces into war
against another nation.
Think about Napoleon, who became a dictator by centralizing power, especially
in his role as commander in chief of French military forces. Or, closer to home,
think of the president of Mexico, Santa Anna, whose centralization of power
not only made him the “Napoleon of the West” but also precipitated
the insurgency in Texas.
This is how Bush views himself as the nation’s commander in chief –
as a Napoleon or a Santa Anna, along with the omnipotent powers that those two
dictators exercised. It’s the old European notion of inherent imperial
powers granted the sovereign, both as emperor and as commander in chief of the
nation’s military forces.
There’s just one big problem with Bush’s analysis, however. Our
American ancestors fully and completely rejected the notion of inherent imperial
powers with the enactment of the Constitution and the Bill of Rights. That,
in fact, was one major reason for limiting the powers of the president by expressly
enumerating them in the Constitution – to negate the old European notion
of “inherent” sovereign powers.
Dictatorship or liberty?
Of course, there are those who say, “The situation is not really that
serious. President Bush is a good man. He can be trusted to do the right thing.
He won’t abuse these powers. He’s exercised them against only a
They’re missing some important points. One is that no matter how good
a man President Bush is, dictatorships are the opposite of liberty and, therefore,
are morally wrong, no matter how good or benevolent the dictator is. Moreover,
once dictatorial powers are relinquished to a “good man,” there
is no assurance that he won’t become a bad man or that a bad man will
not succeed him. A good test is: Would I want the most despicable character
I can think of – say, Adolf Hitler, Joseph Stalin, or Mao Zedong –
to have any of these powers over me and my country? If your answer is “No,”
then your answer should be the same with respect to George W. Bush.
As history has shown, once a ruler is given dictatorial powers, there is no
assurance that the powers will not be expanded to larger groups of people and
abused much more extensively, especially if there is a huge crisis that strikes
fear and panic among the citizenry. After all, keep in mind that, in the absence
of the terrorist strike on the Reichstag, Hitler might well not have been able
to secure passage of the Enabling Act. Ask yourself: How would the compliant,
Republican-controlled Congress respond to a request by President Bush for an
expansion of powers if terrorists exploded a massive bomb today in the middle
of the U.S. Capitol?
Unfortunately, many Americans, like other people in history, don’t want
to face the disquieting truth about the dark and ominous direction in which
their nation is currently headed. They simply wish to bury their heads in the
sand and not analyze too closely the logical implications of the president’s
and the Pentagon’s position. They don’t want to face that we are
now traveling in uncharted waters with respect to dictatorship.
Here is the unvarnished truth that Americans are trying to avoid confronting:
Both the president and the Pentagon have repeatedly emphasized that the nation
is at war. It is a war against the “terrorists.” In this war, the
entire world is the battlefield, including both Iraq and the United States.
In this war, the president is the nation’s commander in chief and, as
such, wields omnipotent powers to defeat the enemy and win the war. These powers
include the power to arrest and punish Americans as illegal “enemy combatants”
– denying them jury trials, due process, lawyers, or any federal court
interference. They have the power to take people into custody and transport
them to foreign regimes for torture. They have the power to record telephone
conversations without warrants.
In other words, the president and the Pentagon have the same powers to wage
their “war on terrorism” in the United States as they have in Iraq.
Yes, you read that right – Iraq. That is the logical consequence of what
these people are saying. They have the power to do everything they’re
doing in Iraq right here in the United States: the power to break people’s
doors down and search their homes and businesses without warrants; the power
to arrest and indefinitely detain people; the power to torture and abuse prisoners
and detainees; the power to fire missiles into cars or apartment complexes where
the “terrorists” are traveling or hiding out; the power to confiscate
Ultimately, the solution to dictatorship lies with the citizenry – a
citizenry whose love of liberty trumps everything else, including fear and the
desire to be taken care of. Time will tell whether that love of liberty is still
a powerful force within the hearts and minds of the American people –
sufficiently powerful to overcome the fear and quest for “security”
that currently hold people in their grip – sufficiently powerful to restore
freedom to our land.
Jacob Hornberger [send
him mail] is founder and president of The
Future of Freedom Foundation
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