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Constitution Provides Checks and Balances Against Excessive Presidential Power in the US

27 December 2005

The United States is currently engaged in a debate over presidential power amid concerns that methods used by the Bush administration in the war against terror may violate the civil liberties of some Americans.  As VOA's Peter Fedynsky reports, defining the limits of presidential authority is a constant process that involves all three branches of the U.S. government.

In Congress recently, Democratic Senator Russ Feingold of Wisconsin felt obliged to remind George W. Bush that he is a president, not a king:

"If you look at the record in the Bush administration since 9/11, it's been power grab after power grab."

But at a White House news conference, Mr. Bush bristled at a reporter's question about signs that the American president may be gaining unchecked power.

"To say 'unchecked power' basically is ascribing some kind of dictatorial position to the president, which I strongly reject," Mr. Bush said.

Indeed, the administration says it is merely regaining some of the power that Congress took after the Watergate scandal that forced President Richard Nixon to resign.  Vice President Dick Cheney was the White House Chief of Staff to Mr. Nixon's successor, President Gerald Ford.

"We are weaker today as an institution because of unwise compromises that have been made over the last 30 to 35 years," remarked the vice president.

At issue today is the power of the presidency in time of war.  There are revelations that as part of the war on terror, Mr. Bush authorized domestic surveillance of Americans in what civil libertarians say is a violation of the Fourth Amendment to the U.S. Constitution.  That amendment prohibits the government from searching citizens without a warrant or probable cause. However, the President says he acted within the law.

"I have the constitutional responsibility and the constitutional authority to protect our country. Article Two of the Constitution gives me that responsibility and the authority necessary to fulfill it," said the president last week.

Specifically, Article Two designates the president as commander-in-chief of the armed forces.

Mr. Bush is not the first wartime leader to interpret that power broadly, or to be accused of pursuing security at the expense of liberty.  President Abraham Lincoln, for example, denied court hearings to Americans suspected of disloyalty during the Civil War and spent money without congressional approval.  During World War Two, President Franklin Roosevelt ordered the internment of all Japanese-Americans.  They were subsequently exonerated and given monetary compensation.

Today, the United States is engaged in a war against terror.  A possible difference, according to history professor Stephen Hess of George Washington University, is that the current struggle could last much longer than previous wars.

"That's the troubling part about this, said Mr. Hess.  "Do you want to abrogate these rights of civil liberties for something that's indefinite and not finite as you could say would be in past wars?  It's a tricky question."

A member of the judicial branch has given his own answer to it. Judge James Robertson of the secret court created by Congress to grant eavesdropping warrants in foreign terrorist cases, resigned to protest the administration's bypassing of the court to order wiretaps.  Another court rebuked the executive branch for using one set of facts to justify holding a suspected terrorist, American citizen Jose Padilla, and another set to indict him.

Meanwhile, the Congress has rejected the President's request for a four-year re-authorization of the PATRIOT Act, a controversial measure that allows investigators to conduct domestic surveillance.  Instead, legislators agreed to a five-week extension, which will give them time to consider portions some believe violate civil liberties.

Professor Hess says the media also play a role in checking government actions, calling attention recently to the rendition of terrorist suspects to secret U.S. prisons alleged to exist in Eastern Europe.

"This was secret.  It was discovered in the fairly porous world that we live in, it was exposed, and the administration -- the president -- had to respond to it.  So that's how the system works," he said.

Professor Hess adds that the bureaucracy, non-governmental organizations, various private interest groups, and voters also participate in the system checks and balances to influence the use of power in ways each believes to be favorable and fair.  Questions that cannot be settled through the give and take of politics often end up in the courts.

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