A Democratic Dictatorship by Jacob G. Hornberger

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 rule.

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 office.

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.
Dictatorial powers

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 the “terrorist.”

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 in chief.

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 liberties.

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 few Americans.”

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 guns.

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.

August 31, 2006

Jacob Hornberger [send him mail] is founder and president of The Future of Freedom Foundation.

Copyright © 2006 Future of Freedom Foundation