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A partial list of Jennifer Van Bergen's articles




Jennifer Van Bergen, J.D., is the author of The Twilight of Democracy: The Bush Plan for America, published by Common Courage Press on September 1, 2004. She is one of the foremost experts on the USA PATRIOT Act and has taught anti-terrorism law at the New School University.


 

This author's articles

Friday August 18th, 2006
Bush has used obscure doctrine to extend power 95 times PDF Print E-mail


Scholar says Bush has used obscure doctrine to extend power 95 times

Jennifer Van Bergen

The Bush administration has been using an extreme version of an obscure doctrine called the Unitary Executive Theory to justify executive actions that far exceed past presidents' power, RAW STORY has learned.

The doctrine assumes, in its extreme form, nearly absolute deference to the Executive branch from Congress and the Judiciary.

According to Dr. Christopher Kelley, a professor in the Department of Political Sciences at Miami University, as of April 2005, President Bush had used the doctrine 95 times when signing legislation into law, issuing an executive order, or responding to a congressional resolution.
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The President announced in these signings that he would construe provisions in a manner consistent with his “constitutional authority to supervise the unitary executive branch.” While the President clearly has the authority to supervise the executive branch, it is unclear how far he might construe this authority under the unitary executive theory.

In fact, according to professors Steven J. Calabresi and Christopher S. Yoo, “a veritable all-star list of constitutional scholars” has rejected judicial supremacy, considering it inconsistent with the idea of checks and balances among the three branches of the federal government.

The President announced in these signings that he would construe provisions in a manner consistent with his "constitutional authority to supervise the unitary executive branch." While the President clearly has the authority to supervise the executive branch, it is unclear how far he might construe this authority under the unitary executive theory.

The Administration’s actions under this doctrine have become so prevalent that even conservatives on the Supreme Court who are sympathetic to the unitary executive theory have felt compelled to reject them. Last year, for example, the Court ruled that the President does not have absolute authority to detain enemy combatants without due process.


Unitarian vs. Non-Unitarian theoreticians


The unitary executive doctrine, in its mildest form, claims only that the President has the power to appoint, control, and remove executive officers, as well as the duty to interpret the law as it applies to his office.


The doctrine is being used by the Bush Administration, however, to claim the authority to decide what is and what is not the law in areas that some legal experts view as suspect. Michael A. Froomkin, professor at University of Miami Law School, told RAW STORY that some of Bush’s applications of the doctrine are “highly dubious.”

Under the Constitution, the president’s role is to “take care that the laws be faithfully executed.” Congress has the power to make the laws and the judiciary interprets the law.


For over 200 years, the United States Supreme Court has been viewed as the final arbiter of what is and what is not the law. “It is emphatically the province and duty of the judicial department to say what the law is,” declared Chief Justice John Marshall in 1803. “This is the very essence of judicial duty.”


But unitary executive theoreticians claim that judicial supremacy over interpretation of the laws is not and never has been exclusive. Professors Calabresi and Yoo have noted that “the suggestion that the Supreme Court may not have the last word on matters of constitutional interpretation seems at first to be quite jarring to modern lawyers” but Marshall’s famous opinion “never claimed that interpretation of the law was the exclusive province of the courts.”


Froomkin, who has debated this issue on the law review circuit, is a non-Unitarian who acknowledged to RAW STORY that the president has not only the power -- but the duty -- to interpret the Constitution in certain instances, as when he vetoes a bill.


“The President has a duty not to undermine his own office,” he says.


According to Froomkin, a problem arises when the president views himself as completely above the law or is so secretive that no checks and balances can work. The greatest danger is when Congress doesn’t adequately assert itself, he asserts.


The Miami professor noted that Congress did not react to the legality of the Guantanamo detentions. Nor did they respond when the CIA used an unmanned plane fitted with a five-foot-long Hellfire missile to kill a senior al Qaeda leader as he was riding in a car in the Yemeni desert, also killing a naturalized U.S. citizen.

Congress has never questioned the order to assassinate these individuals, even though the CIA has been banned from conducting or participating in assassinations since 1976.


The major difference between Unitarians and non-Unitarians, according to Froomkin, is that Unitarians believe the President can do what he likes and non-Unitarians believe there are boundaries and limits to executive power.


The Geneva Convention


Froomkin also sees the selective nonapplication of the Geneva Conventions to certain designated enemy combatants and the military tribunals as legally dubious.


The Administration’s claim that it has the authority to decide what is or is not the law is most manifest in its decision not to apply the Geneva Conventions to certain persons. A 2003 memo on torture written by Department of Defense lawyers stated that “criminal statutes are not read as infringing on the president’s ultimate authority” as commander-in-chief, and prohibitions on torture “must be construed as inapplicable to interrogations.”

“Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield,” said the memo.


White House Counsel Alberto Gonzales wrote in 2002 that the Geneva Conventions were “obsolete” and “quaint” and argued that Bush had the constitutional authority to determine that Geneva did not apply to al Qaeda or the Taliban.


Several mainstream legal scholars have declared that the President’s claim of unlimited executive power turns the Constitution on its head. University of Texas law professor Douglas Laycock told the L.A. Times that “It is just wrong to say the president can do whatever he wants, even if it is against the law.”


Charles Gittings, founder of the Project to Enforce the Geneva Conventions, asserts that the President’s decision not to apply Geneva, or to apply it selectively, is a grave breach of the Convention and thus a violation of the War Crimes Act of 1996.


“The President has no Constitutional authority to commit crimes,” he said.




See more of Charles Gittings' work at www.pegc.us

The Unitary Executive: Is the Doctrine Behind the Bush Presidency Consistent with a Democratic State PDF Print E-mail

(see also the accompanying PowerPoint Presentation)
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The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State?
By JENNIFER VAN BERGEN
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Monday, Jan. 09, 2006
When President Bush signed the new law, sponsored by Senator McCain, restricting the use of torture when interrogating detainees, he also issued a Presidential signing statement. That statement asserted that his power as Commander-in-Chief gives him the authority to bypass the very law he had just signed.

This news came fast on the heels of Bush's shocking admission that, since 2002, he has repeatedly authorized the National Security Agency to conduct electronic surveillance without a warrant, in flagrant violation of applicable federal law.

And before that, Bush declared he had the unilateral authority to ignore the Geneva Conventions and to indefinitely detain without due process both immigrants and citizens as enemy combatants.

All these declarations echo the refrain Bush has been asserting from the outset of his presidency. That refrain is simple: Presidential power must be unilateral, and unchecked.

But the most recent and blatant presidential intrusions on the law and Constitution supply the verse to that refrain. They not only claim unilateral executive power, but also supply the train of the President's thinking, the texture of his motivations, and the root of his intentions.

They make clear, for instance, that the phrase "unitary executive" is a code word for a doctrine that favors nearly unlimited executive power. Bush has used the doctrine in his signing statements to quietly expand presidential authority.

In this column, I will consider the meaning of the unitary executive doctrine within a democratic government that respects the separation of powers. I will ask: Can our government remain true to its nature, yet also embrace this doctrine?

I will also consider what the President and his legal advisers mean by applying the unitary executive doctrine. And I will argue that the doctrine violates basic tenets of our system of checks and balances, quietly crossing longstanding legal and moral boundaries that are essential to a democratic society.

President Bush's Aggressive Use of Presidential Signing Statements

Bush has used presidential "signing statements" - statements issued by the President upon signing a bill into law -- to expand his power. Each of his signing statements says that he will interpret the law in question "in a manner consistent with his constitutional authority to supervise the unitary executive branch."

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If They Lie in Public, What Would They Do in Secret? PDF Print E-mail


August 20, 2004
By JENNIFER VAN BERGEN

Two recent articles by Andrew C. McCarthy, a contributor to the National Review and a former chief assistant U.S. attorney who led the prosecution of Sheik Omar Abdel Rahman in connection with the first World Trade Center bombing,[1] discuss related topics of great interest to those concerned about how we handle the war on terrorism. In one, McCarthy discusses the topics of torture, the laws of war, the laws prohibiting torture, the POW status, and finally torture warrants.[2] In the other, McCarthy proposes a new court system which he calls a "national security court."[3] I admire the intelligence and clarity of McCarthy's analyses (and can overlook his occasional pot-shots at leftists and "pie-in-the-sky libertarians"), and he nearly convinces me, but in the end I find flaws and disagree with his conclusions. Let's look at them.

In his article on Abu Ghraib, McCarthy admits that "the whole crossroad of terrorism and law enforcement is complex," but argues that terrorists "must be fought as military enemies rather than criminal elements" for three reasons: (1) "the justice system . . . is incapable on its own of neutralizing more than a tiny fraction of the hordes that oppose us," (2) "judicial proceedings that target a relative handful of committed (and some suicidal) jihadists do not dissuade them; they have the opposite effect," and (3) terrorist cases require us to "cut corners" constitutionally, which is not good for "our system's majesty" because if we say "we treat terrorists just like we treat everyone else . . . everyone else is [in fact] being treated worse, and that is not the system we aspire to."[4] McCarthy concludes that "[b]y stretching precariously to assimilate [terrorists] while accommodating national security, the system succeeds only in warping itself."

It's a compelling argument. McCarthy adds that "it's not fair that the barbarity of a few should be of such profound consequence, but anyone who thinks that 'trust us' carries the same assurances today as it did [before the revelations of Abu Ghraib] is hallucinating." With powerful concessions to the principles often relied on by civil libertarians (ie., that "the sanctity and dignity of human life is a bedrock premise of civilized society, expressed at the Founding in the Declaration of Independence itself"), McCarthy nearly has his cake and eats it too. And his consequent suggestion becomes nearly irrefutable: that in order to prevent the dilution of our constitutional system of protections, we create a new parallel legal system just for terrorists, which he calls a "national security court."
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