The First MBA President: George W. Bush as Public Administrator
James P. Pfiffner is a professor of public policy at George Mason University. His books include The Strategic Presidency: Hitting the Ground Running, The Character Factor: How We Judge America’s Presidents, and The Future of Merit: Twenty Years after the Civil Service Reform Act (edited with Douglas Brook). He is a member of the National Academy of Public Administration, and he served with the 25th Infantry Division in Vietnam and Cambodia in 1970.
President Bush was praised early in his first term as a tough-minded decision maker who knows how to get things done. This essay argues that President Bush possesses formidable political skills that have helped him achieve many of his policy goals, focusing on his most important national security policies: the war in Iraq, the war on terrorism and the treatment of detainees, the use of intelligence leading up to the war, and the reorganization of the executive branch. In the end, however, President Bush’s deficiencies as a public administrator have undermined his policy successes.
President George W. Bush is the nation’s first MBA president, and his presidency exhibits both the strengths and weaknesses of his approach to operating as a chief executive officer. He prefers to set a bold direction and delegate administrative matters to his executive team, led by his chief operating officer, Vice President Richard Cheney. The Bush management style is marked by secrecy, speed, and top-down control. Although this approach has brought considerable political success, it also has resulted in administrative failures that have jeopardized the long-term legacy of President Bush’s policies.
We usually do not think of the president of the United States primarily as a public administrator. He or she is seen foremost as the political leader of the nation, the symbolic head of state, the director of foreign policy, and the legislative initiator. After a moment’s reflection, however, it is apparent that the constitutional provision that “[t]he executive Power shall be vested in a President of the United States of America” makes the president formally the head of the executive branch and thus responsible for its performance in taking care that the laws of the nation are faithfully executed. In addition, the commander-in-chief clause obliges the president to command the armed forces of the United States.
The U.S. Constitution does not specify what level of involvement in administrative matters is appropriate for the president. Hugh Heclo argues that the president must manage the office or else he or she will be trapped by its routines and the expectations of others. According to Heclo, “To manage is something that falls between administering in detail and merely presiding in general” (1999a, 32). Peri Arnold maintains that managerial concerns are essential to the president’s “ability to transform ideas and commitments into policies.” Management is essential to political leadership, argues Arnold. “Thus the president ought to be concerned with administration, not because he is a manager but because administration is part of the system through which his choices become policy…. The president’s political and policy concerns come first and lead him to administration…. In this view the president is not so much a manager of administration; he is a tactician using it” (1986, 363).
The present essay begins with an analysis of President Bush’s approach to leadership and his management of the White House and cabinet. After 9/11, President Bush undertook wars in Afghanistan and Iraq, which he argued were a part of the global war on terror, and he saw his role in history as a war president. Thus, this essay primarily examines President Bush’s leadership of national security policy—arguably his most important legacy as a public administrator. The essay then takes up the use of intelligence before the war in Iraq and the two largest reorganizations of the executive branch since the National Security Act of 1947: the creation of the U.S. Department of Homeland Security and the reorganization of the intelligence community.
The Bush administration’s impact on public administration is, of course, much broader than the issues addressed in this essay. The administration has undertaken a series of management reforms (ably addressed in the accompanying article by Jonathan Breul); it has extended contracting out for governmental services, even in areas of combat and security forces in Iraq; its impact on the economy through its fiscal and budget policies will have far-reaching effects on U.S. economic health; and its changes to the personnel system in the continuing reduction of Title V coverage for U.S. civilian personnel may bring the broadest human resource management changes since the Pendleton Act. Nevertheless, President Bush’s administrative decisions in the national security arena have more far-reaching consequences for the United States in history, and President Bush personally has been more intimately involved in national security policy matters than in any of his other public administration responsibilities. Therefore, this essay focuses on President Bush’s national security administrative actions rather than the other important areas.
The thrust of the analysis is that President Bush has achieved significant policy victories through secrecy, speed, and tight control of the executive branch by his White House and political appointees. But the ultimate success of his policy victories has been undermined by his neglect of the administrative dimensions of his policies and failure to heed the advice of many career professional public administrators. This essay concludes that George W. Bush has had a profound impact on public administration in the United States, both in the implementation of his policy priorities and in the restructuring of governmental institutions.
The bush style of leadership
President Bush is the first American president to hold a master’s degree in business administration (Harvard University, 1975), and according to Donald Kettl, George W. Bush “is the very model of a modern MBA president” (2003, 31). He has also been praised as the “CEO President” (Kessler 2004). Secrecy, speed, and top-down control are all qualities attributed to business management, especially by envious public officials who must cope with the inevitable leaks, dilatory bureaucratic processes, and a system of shared powers. It is not clear, however, that business management experts would embrace Bush’s approach to management (Bossidy and Charan 2002; Magretta and Stone 2002; Mintzberg 2004).
President Bush has articulated a bold vision, set priorities, and then delegated the implementation to his vice president (arguably his chief operating officer) and his loyal staff team. In his autobiography, A Charge to Keep, he put it this way: “My job is to set the agenda and tone and framework, to lay out the principles by which we operate and make decisions, and then delegate much of the process to them” (quoted in Allen 2004). President Bush prefers short memos, oral briefings, and crisp meetings. His circle of advisers is relatively small. According to American Enterprise Institute president Christopher DeMuth, “It’s a too tightly managed decision-making process. When they make decisions, a very small number of people are in the room, and it has a certain effect of constricting the range of alternatives being offered” (Suskind 2004a).
Neither has President Bush sought a broad range of outside advice: “I have no outside advice. Anybody who says they’re an outside adviser of this Administration on this particular matter [the war on terror] is not telling the truth” (Lemann 2004, 158). President Bush’s first Environmental Protection Agency director, Christine Todd Whitman, felt that the president was even sheltered from his own cabinet. “There is a palace guard, and they want to run interference for him” (Allen and Broder 2004).
Other presidents made flawed decisions because they did not consult broadly enough or conduct systematic deliberations. For example, President Lyndon B. Johnson’s escalation of the war in Vietnam and John F. Kennedy’s decision to go forward with the Bay of Pigs invasion were both marked by narrow consultation and flawed processes (Burke and Greenstein 1991; Pfiffner 2005b). In contrast, Dwight D. Eisenhower’s decision-making process regarding Dien Bien Phu in 1954 and Kennedy’s deliberations during the Cuban missile crisis were models of systematic and careful deliberation about going to war. President Bush’s deliberations before the war in Afghanistan much more closely approached these positive models than did his series of decisions leading up to the war in Iraq (Pfiffner 2005b).
President Bush’s approach to his role as chief executive mirrors that of a chief executive officer of a corporation. He sees himself as tough minded and able to make decisions quickly and leave the details up to his team. His White House staff is legendary for its tight message discipline and absence of unauthorized leaks. President Bush sees himself as one who listens to advice and then makes the tough calls. “I listen to all voices, but mine is the final decision…. I’m the decider, and I decide what’s best” (White House 2006). In contrast to his father or to Bill Clinton, who would agonize over important decisions, Bush decides and moves on. The detached Bush style resembles the style of President Ronald Reagan, but it contrasts sharply with those of Presidents Franklin Roosevelt and Clinton, who were fascinated with the details of policies and actively sought external advice on the policies of their administrations.
As the nation’s first MBA president, President Bush has what he regards as the strengths of a chief executive officer: vision, certainty, and decisiveness. But the defects of this style include a tendency to act without sufficient deliberation, an unwillingness to admit the complexity of many policy issues, and a tendency to consider only a narrow range of alternatives. According to National Security Advisor Condoleezza Rice, “He least likes me to say, ‘This is complex’” (Lemann 2002, 177). Bush has described his personal approach to decision making as intuitive: “I just think it’s instinctive. I’m not a textbook player. I’m a gut player” (Woodward 2002, 144). He does not believe in elaborate deliberation or explanation of his thinking to his White House staff. As he told Bob Woodward, “I’m the commander—see, I don’t need to explain—I do not need to explain why I say things. That’s the interesting thing about being the president. Maybe somebody needs to explain to me why they say something, but I don’t feel like I owe anybody an explanation” (Woodward 2002, 145–46).
The president has eschewed detailed deliberation, and his White House does not adhere to any regularized policy development process. Former Treasury secretary Paul O’Neill thought that the Bush White House had no serious domestic policy process. “It was a broken process,… or rather no process at all; there seemed to be no apparatus to assess policy and deliberate effectively, to create coherent governance” (Suskind 2004b, 97). John DiIulio, who worked in the Bush White House on faith-based initiatives during the first eight months of the administration, said, “There is no precedent in any modern White House for what is going on in this one: a complete lack of a policy apparatus” (Suskind 2003). According to Lawrence Wilkerson, chief of staff to former secretary of state Colin Powell and a career army officer, the national security policy process was even worse: What “I saw for four-plus years was a case that I have never seen in my studies of aberrations, bastardizations, perturbations, changes to the national security decision-making process. What I saw was a cabal between the Vice President of the United States, Richard Cheney, and the Secretary of Defense, Donald Rumsfeld, on critical issues [who] made decisions that the bureaucracy did not know were being made…. [T]he bureaucracy often didn’t know what it was doing as it moved to carry them out” (2005, 8).
President Bush’s strengths as a decisive, CEO-type leader are also a mirror reflection of his weaknesses. Francis Fukuyama comments on the dual nature of President Bush’s leadership style:
Great leadership often involves putting aside self-doubt, bucking conventional wisdom, and listening only to an inner voice that tells you the right thing to do. That is the essence of strong character. The problem is that bad leadership can also flow from these same characteristics: steely determination can become stubbornness; the willingness to flout conventional wisdom can amount to a lack of common sense; the inner voice can become delusional. (2006, 60–61)
President Bush’s strengths as leader have led to policy victories, but his weaknesses have led to administrative failures.
Despite President Bush’s care in recruiting an experienced and well-credentialed cabinet, he is not about to reverse the trend of the past four decades of power gravitating toward the White House. Early in the Bush administration, all of the major policy priorities were dominated by White House staffers rather than led by the cabinet. As one high-level White House official said during the transition from the first to the second term: “The Bush brand is few priorities, run out of the White House, with no interference from the Cabinet…. The function of the Bush Cabinet is to provide a chorus of support for White House policies and technical expertise for implementing them” (VandeHei and Kessler 2004; emphasis added).
President bush as commander in chief
President Bush’s historical legacy will be closely tied to his actions as commander in chief during the war on terror. Military victory in Afghanistan set the stage for the establishment of a legitimate civil government there. The failure to build a sound economy after the war, however, brought back some of the same conditions that had led to the rise of the ousted Taliban regime. But the key battle in the broader war on terror, in President Bush’s judgment, was the war in Iraq. The impressive initial military victory in Iraq was undercut by the failure of the Bush administration to listen to the advice of many career professionals in the military, the Central Intelligence Agency (CIA), and the State Department. Specifically, the president and Secretary of Defense Rumsfeld rejected virtually unanimous advice about the number of troops needed to provide security after military victory. In doing so, they also ignored the planning that had already taken place in Defense Department, the CIA, and the State Department.
After analyzing the military strategy for Iraq, this essay will turn to the issue of torture, which has severely damaged the reputation of the United States throughout the world. The torture and abuse perpetrated by U.S. personnel stemmed from the success of President Bush in overcoming the objections of Colin Powell and career JAG lawyers in his decision to suspend the Geneva Conventions for the war on terror. This led to the use of interrogation tactics that had previously been forbidden by the Geneva accords, the U.N. Convention Against Torture, the U.S. Torture Victims Act, and the Army Field Manual for Interrogation.
It is significant that Powell’s advice on the number of troops needed in Iraq and his objections to the suspension of the Geneva Conventions were both rejected by President Bush. Powell was the only member of President Bush’s top political leadership team who had had combat experience or a career in the military. This background gave him a perspective on the realities of war—in these cases, on the need to provide sufficient troops to ensure stability after initial military victory and the organizational dynamics and international consequences of abandoning the Geneva accords—that other top policy makers lacked.1 Powell’s objections on both counts were echoed by senior army commanders (on troop levels) and by career lawyers in the JAG Corps (on suspending the Geneva Conventions).
Iraq: Planning for war, ignoring the professionals
After the atrocities of 9/11, President Bush saw himself as a war leader, and the toppling of the Taliban regime in Afghanistan was successful in the short term. Likewise, he achieved a short-term victory when U.S. troops captured Baghdad in 2003. But that temporary victory was vitiated by the inability of U.S. forces to provide basic security for the people of Iraq or sufficient stability to establish a new government.
This failure to establish security stemmed from the president’s and Secretary Rumsfeld’s success in overcoming the arguments of many in the Army Officer Corps that several hundred thousand troops would be needed in Iraq. In addition, the disbanding of the Iraqi army, without consultation with professional military leaders, severely hampered the ability of U.S. forces to provide security during the occupation. Planning for the war in Iraq was heavily influenced by Secretary Rumsfeld and his approach to military transformation, which called for smaller, more mobile, and more lethal military units and tactics to replace what he saw as the cumbersome approach to war that was a legacy of the Cold War.
The professional Army Officer Corps understood the need for some sort of military transformation and new tactics to deal with a new type of enemy, but they were skeptical of the administration’s plans for war in Iraq. During the spring and summer of 2002, as rumors of war with Iraq mounted, some of their reservations about the wisdom of war with Iraq were leaked to the Washington Post and articulated by retired officers.
The more immediate professional concern of the Army Officer Corps was the number of troops that would be necessary to ensure victory in Iraq. Previous planning for a U.S. invasion of Iraq had been conducted by General Anthony Zinni, who had overseen the development of plans for a U.S. war with Iraq that called for 380,000 troops and an occupation of up to 10 years (Gordon and Trainor 2006, 26). General Tommy Franks had been involved in preparing the troop levels for the plans and told Rumsfeld in December 2001 that 385,000 troops would be necessary for a successful war in Iraq (Gordon and Trainor 2006, 28). Rumsfeld, however, wanted to change the paradigm for waging war and accomplish more with fewer troops by maximizing mobility, intelligence, and the use of new technology. Franks ultimately agreed with Rumsfeld that a much smaller invasion force would be needed. Powell made the argument for more troops directly to the president: “I made the case to General Franks and Secretary Rumsfeld before the President that I was not sure we had enough troops” (Berkowitz 2006, 132). Rumsfeld and Bush also ignored the pleas of Paul Bremer, head of the Coalition Provisional Authority, for more troops throughout the crucial first months of the occupation of Iraq (O’Hanlon 2005, 4).
The failure to establish control after the military victory stemmed not from the failure to plan but from the administration’s failure to listen to the concerns of the planners who were working on the challenges of an occupation. The difference in perspective between the political leadership of the Bush administration and the professional military was the result of different ideas about the consequences of a U.S. invasion of Iraq. The civilian leadership was convinced that the invasion would succeed quickly, that U.S. forces would be greeted as liberators, and that U.S. forces could soon be withdrawn from the country. When General Eric Shinseki, army chief of staff, testified before the Senate Armed Services Committee in February 2002, he estimated that “several hundred thousand soldiers” would be required to “maintain [a] safe and secure environment to ensure that the people are fed, that water is distributed—all the normal responsibilities that go along with administering a situation like this” (Fallows 2004, 72; see also Berkowitz 2006, 130).
The administration, however, wanted to minimize the projected cost of the war, and Shinseki was publicly reprimanded by Deputy Secretary of Defense Paul Wolfowitz, who said that his estimates were “quite outlandish” and that “the notion that it will take several hundred thousand U.S. troops to provide stability in post-Saddam Iraq, [is] wildly off the mark” (Fallows 2004, 73). Wolfowitz also speculated, “It’s hard to conceive that it would take more forces to provide stability in post-Saddam Iraq than it would take to conduct the war itself… hard to imagine” (Fallows 2004, 73). In a calculated insult, Rumsfeld announced Shinseki’s replacement 14 months before his term as army chief of staff Army ended and refused to attend his retirement ceremony. The administration’s position was articulated by the vice president: “I really do believe that we will be greeted as liberators” (Fallows 2004, 65).
The failure of the administration to realize the importance of an adequate occupation force has cost the United States dearly in lives, money, and the historical evaluation of the Bush administration. But it was not for lack of planning; much prewar planning was conducted by career professionals in the government. The problem is that the political levels of the administration did not listen to those professionals. Even though these plans did not specify the exact number of troops needed, they did argue that a serious occupation force would be necessary to ensure stability after military victory (Berkowitz 2006).
The State Department conducted an elaborate “Future of Iraq” project in March 2002. However, President Bush decided that the Defense Department, not the State Department, would have responsibility for postwar Iraq, and the elaborate planning was ignored (Fallows 2004, 72; Packer 2005, 124; Ricks 2006, 102–4). The CIA also held war-gaming exercises that predicted widespread civil unrest after a military victory, but the leadership in the Office of the Secretary of Defense forbade Defense Department representatives from participating in the planning exercises (Fallows 2004, 58). Brigadier General Mark E. Scheid, who had worked at U.S. Central Command (which dealt with Iraq), reported that Secretary Rumsfeld discouraged planning for Phase IV, that is, postinvasion operations. “I remember the secretary of defense saying that he would fire the next person that said that [planning was necessary]” (Washington Post 2006).
In October 2002, the Strategic Studies Institute of the U.S. Army War College in Carlisle Barracks in Pennsylvania undertook a postwar planning project that foresaw the need for 400,000 troops in Iraq (Fallows 2004, 63). In its report of February 2003, it predicted that if the United States went to war in Iraq, it would “have to be prepared to dedicate considerable time, manpower, and money to the effort to reconstruct Iraq after the fighting is over. Otherwise, the success of military operations will be ephemeral, and the problems they were designed to eliminate could return or be replaced by new and more virulent difficulties” (Crane and Terrill 2003, iv).
One reason the administration ignored the professional planning that was being done was that it did not want the upcoming war to appear too costly or too lengthy. The implications of each of the studies was that there needed to be a significant occupation that would last a number of years and involve a large contingent of American forces. The administration, however, argued that the war would be relatively cheap, that not many troops would be necessary, and that it would be over quickly.
On the projected costs of the war, Wolfowitz told Congress, “There’s a lot of money to pay for this. It doesn’t have to be U.S. taxpayer money. We are dealing with a country that can really finance its own reconstruction, and relatively soon” (Fallows 2004, 66). President Bush’s economic adviser, Lawrence Lindsey, estimated in September 2002 that the war would cost between $100 billion and $200 billion. His estimates were disavowed by other administration officials, and he was forced to resign before the end of the year (Fallows 2004, 62; see also Berkowitz 2006, 130). The eventual costs of the war (through fiscal year 2006) were estimated at $319 billion for Operation Iraqi Freedom and $437 billion for the global war on terror (Belasco 2006; Marron 2006).
The shortage of U.S. troops was compounded by key decisions made by Bremer, President Bush’s appointee as head of the Coalition Provisional Authority. It is inconceivable that he made these decisions without President Bush’s approval; they were presidential-level decisions. The occupation began with two fundamental errors.
First, in his de-Baathification order, Bremer ordered that all senior party members be banned from serving in the government, and the top three layers of all government ministries were automatically removed, even if they were not senior members of the Baath Party—up to 85,000 people (Ricks 2006, 160). In disbanding most of the Iraqi bureaucracy, Bremer ignored Max Weber’s insight of a century ago: “A rationally ordered system of officials [the bureaucracy] continues to function smoothly after the enemy has occupied the area; he merely needs to change the top officials. This body of officials continues to operate because it is to the vital interest of everyone concerned, including above all the enemy” (1946, 229). Bremer also ignored the advice of a CIA station chief in Baghdad who warned that the people Bremer was going to fire were the key technicians who operated the electric, water, and transportation infrastructure of the country. He told Bremer, “By nightfall, you’ll have driven 30,000 to 50,000 Baathists underground. And in six months, you’ll really regret this” (Ricks 2006, 159).
In a second important blunder, Bremer dissolved the Iraqi security forces, including the army (350,000), the Interior Ministry (285,000), and Saddam Hussein’s security forces (50,000) (Ricks 2006, 192). Although the senior officers of the defeated enemy had to be purged for obvious reasons, the rank and file of the army constituted a source of stability and order. This move threw hundreds of thousands out of work and immediately created a large pool of armed men who felt humiliated by and hostile toward the U.S. occupiers. According to one U.S. officer in Baghdad, “When they disbanded the military, and announced we were occupiers—that was it. Every moderate, every person that had leaned toward us, was furious” (Ricks 2006, 164). The prewar plans of the State Department, the Army War College, and the Center for International and Strategic Studies all recommended against disbanding the army (Fallows 2004, 74). The judgment of some of the Army Officer Corps on the political leadership of the Bush administration was reflected in Marine General Greg Newbold’s statement that “the commitment of our forces to this fight was done with a casualness and swagger that are the special province of those who have never had to execute these missions—or bury the results” (2006, 42).
Thus, President Bush succeeded in his goal of going to war with Iraq and deposing Saddam Hussein, but his success was undercut by his unwillingness to take seriously the advice of career professionals in public administration. This failure has had profound consequences for the United States.
Torture and the war on terror
The international disgrace of the United States stemming from detainee abuses at Abu Ghraib, Guantánamo, and Afghanistan began with President Bush’s success at reframing the basic American approach to war. President Bush argued that the atrocities of 9/11 had ushered in a new paradigm in the history of warfare in which a superpower could be directly attacked by shadowy cells of nonstate actors. In fighting this type of asymmetrical warfare, the Bush administration decided to fundamentally revise the tactics it was willing to use (Bush 2002; Owens 2006, 270).
From the beginning of the U.S. response to 9/11, the Bush administration began to send signals that the rules by which the United States had traditionally operated were changing. The U.S. ban on the assassination of foreign leaders issued by President Gerald Ford in 1976 was rescinded (Owens 2006, 271). Vice President Cheney said on television that the United States was dealing with “barbarians.” He continued, “We also have to work, through, sort of the dark side, if you will…. It’s going to be vital for us to use any means at our disposal, basically, to achieve our objective” (White House 2001). When Secretary Rumsfeld mentioned possible constraints in international law shortly after 9/11, President Bush said, “I don’t care what the international lawyers say, we are going to kick some ass” (Clarke 2004, 24). The president and vice president were sending powerful signals that the gloves were going to come off.
These premises led to a fundamental change in the U.S. approach to dealing with enemy detainees. Over centuries of warfare, broad boundaries of what constituted legitimate means of war were developed by “civilized” nations to contain the destructiveness of war. Two of the important limits were prohibitions against attacking civilians and torturing captured members of enemy forces. These principles of restraint were codified after World War II in the Geneva Conventions, which were ratified by the United States in 1955. As treaties signed by the president and ratified by the Senate, they became the “supreme law of the land” (Article VI of the Constitution). In addition to the prohibitions against torture in the Geneva Conventions, the UN Convention against Torture and the U.S. War Crimes Act prohibit torture by U.S. personnel (Pfiffner 2005a).
In the wake of the atrocities of 9/11, President Bush concluded that because our enemies were ruthless, the United States had to get tough. In order to give U.S. forces the flexibility they needed to fight against this new type of enemy, President Bush decided that the Geneva Conventions governing the conduct of U.S. personnel had to be set aside for the war on terror. On January 25, 2002, Alberto Gonzales, counsel to the president, wrote a memo recommending that the Geneva Convention on the Treatment of Prisoners of War should not apply to al-Qaeda or Taliban prisoners.2 He reasoned that the war on terrorism was “a new kind of war” and that the “new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners” (Gonzales 2002).
Secretary of State Colin Powell objected to the reasoning behind the Gonzales memo. In his own memo of January 26, 2002, he argued that the drawbacks of deciding not to apply the Geneva Conventions outweighed the advantages because “[i]t will reverse over a century of policy… and undermine the protections of the law of war for our troops, both in this specific conflict and in general; It has a high cost in terms of negative international reaction… It will undermine public support among critical allies.”
Despite Powell’s memo—and in accord with the Gonzales recommendations—President Bush signed a memorandum on February 7, 2002, that stated, “Pursuant to my authority as Commander in Chief…. I… determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a High Contracting Party to Geneva.” This key decision by President Bush to suspend the Geneva Conventions for the war on terror set in motion a series of policy and operational changes that encouraged the use of “aggressive interrogation techniques.”
In deciding to issue the executive order exempting U.S. personnel from the constraints of the Geneva Conventions, President Bush was rejecting the professional advice of the only member of his war cabinet who had combat experience, as well as the professional judgment of many career JAG officers in the Department of Defense. In 2003, a group of JAG officers went to visit the New York City Bar Association’s Committee on International Human Rights. They were concerned about “a real risk of disaster,” a concern that proved to be prescient (Barry et al. 2004; Hersh 2004, 28–34; Schlesinger 2004, 29).
As a legal matter, President Bush’s February 7, 2002, memorandum was dubious, and as a policy decision, it had the drawbacks specified by Secretary Powell. The president’s decision led to the expansion of methods of interrogation that were used at Guantánamo through Secretary Rumsfeld’s decisions about allowable techniques and to the migration of those techniques to Iraq, which, unlike Guantánamo, the United States admitted was covered by the Geneva Conventions (Schlesinger 2004, 33–34). Thus, President Bush’s decision to suspend the Geneva Conventions in the war on terror had profound implications that, combined with other policy decisions and interrogation practices, led to the torture of detainees in Guantánamo, Afghanistan, and Iraq.
Some of the techniques approved for use at Guantánamo violated the Geneva Conventions, such as the use of stress positions, the imposition of up to 30 days of isolation, and the removal of clothing. Most of the techniques did not amount to torture, though some of them were harsh and might be considered torture depending on the intensity and application (e.g., 30 days of isolation, sensory deprivation, 20-hour interrogations, and noninjurious physical contact). The techniques that were used included deprivation of food, deprivation of sleep (for up to 96 hours), deprivation of clothes, and shackling in stress positions (Bravin 2004). The problem, of course, is that in the actual practice of interrogation, guards and interrogators can easily get carried away and move beyond the bounds specified in the legal memoranda—a fact that was evident at Abu Ghraib. Ensuring that this does not happen is the obligation of leadership.
In May 2004, Federal Bureau of Investigation (FBI) officials in Iraq sent e-mail messages to Washington to request guidance regarding what they should report as abuse (FBI 2004). They said that “an Executive Order signed by President Bush authorized the following interrogation techniques among others, sleep ‘management,’ use of MWDs [military working dogs], ‘stress positions’ such as half squats, ‘environmental manipulation,’ such as the use of loud music, sensory deprivation through the use of hoods, etc.” (FBI 2004). In August 2004, an FBI official at Guantánamo sent an e-mail reporting on “what I observed at GTMO.” The official said that on several occasions, he had observed detainees “chained hand and foot in a fetal position to the floor, with no chair, food, or water. Most times they had urinated or defacated [sic] on themselves, and had been left there for 18 [to] 24 hours or more.” The temperature in the rooms was at times made extremely cold or “well over 100 degrees” (FBI 2002).
Although the abuses were intended to humiliate prisoners, many caused serious injury. In addition, the treatment of prisoners caused death in a number of instances. Although some of these deaths were the result of escape attempts or justifiable homicides, some were the result of physical mistreatment by U.S. personnel. Fifteen of those who died between December 2002 and May 2004 were “shot, strangled or beaten” before they died. The circumstances surrounding a number of the deaths included “blunt force trauma,”“strangulation,” and “asphyxia due to smothering and chest compression,” among other things (Graham 2004; Squitieri and Moniz 2004; Myers 2004). That is, they were tortured to death.
Although many of the abuses at Abu Ghraib were caused partly by the intense pressure placed on untrained troops in an understaffed prison, the techniques employed were first used at Guantánamo and then migrated to Afghanistan and Abu Ghraib (Schlesinger 2004, 33–36). Pressure to produce actionable intelligence was perceived as coming from high-level officials in the White House. For example, the visit of a “senior member of the National Security Council staff to Abu Ghraib in November 2003 sent a strong signal that intelligence in Iraq was valued at the highest levels of the United States government” (Schlesinger 2004, 69).3 Army Lieutenant Colonel Steven Jordan, head of the Joint Interrogation and Detention Center at Abu Ghraib, said that he felt pressure to produce more actionable intelligence from senior officials, who said the reports were read by Secretary Rumsfeld, and particularly from Frances Townsend, deputy assistant to President Bush and one of the top aides to Condoleezza Rice on the National Security Council staff (Smith 2004).
President Bush may not have intended that the specific acts of torture be carried out, but as the leader at the top of the chain of command, he was responsible for the likely consequences of his actions (accurately predicted by his secretary of state and JAG lawyers). Without that decision, professional army troops, all of whom were trained in the Geneva Conventions, would have hesitated to undertake the levels of torture that occurred.
No major war goes without some abuse of prisoners, but the chain of command and leadership are crucial to discipline. Without signals from the top of the chain of command, the abuses and torture at Guantánamo, Afghanistan, and Abu Ghraib would not have been so systematic in the interrogation of enemy prisoners. Thus, President Bush’s decision to suspend the Geneva Conventions, combined with the leadership of his top deputies in the war on terror, Vice President Cheney and Secretary of Defense Rumsfeld, enabled the abuses and torture to occur.
Even though President Bush may not have foreseen that his initial decision to suspend the Geneva Conventions would lead to the widespread abuse and systematic torture of detainees, the combination of his lifting of the Geneva constraints and high-level pressure for actionable intelligence led to the abuses that have been documented in reports of international and U.S. government agencies. Despite President Bush’s distaste for the abuses at Abu Ghraib and his assertions that “we do not torture,” the excesses that were uncovered stemmed from a leadership failure from the president down through the chain of command. Leaders are responsible for the consequences of their actions. President Bush made his initial decision about the Geneva Conventions against the considered advice of career JAG officers and Secretary of State Powell, who predicted the likely consequences of his action.
Secretary Powell’s chief of staff, retired career army officer Colonel Lawrence Wilkerson, said that Powell told him to monitor the International Committee of the Red Cross reports on U.S. detention centers. After gathering a dossier of documents, Wilkerson concluded that the signals were not ambiguous: “I saw a chain of information and orders going out to the field that were codified in memoranda…. they essentially said, ‘This is a new war. These people are different, Geneva doesn’t apply, and we need intelligence. So smack these guys, stack ’em up. Use whatever means you need’” (Follman 2006). Wilkerson concluded that the inhuman treatment of detainees was not an aberration: “As former soldiers, we knew that you don’t have this kind of pervasive attitude out there unless you’ve condoned it…. And whether you did it explicitly or not is irrelevant” (Wilkerson 2005).
The consequences of the many instances of abuse and torture by U.S. personnel have been profound and lasting. The United States was once seen as a nation that, despite some aberrations, respected the civilized norms of warfare. The horrible images from Abu Ghraib—seared in the memories of the international community and used as propaganda by enemies of the United States—have severely damaged the reputation of the nation. It will take decades, if not generations, to overcome the damage.
In arguing for the war in Iraq, President Bush relied heavily on claims that Iraq possessed weapons of mass destruction and that Saddam Hussein was connected with the attacks of 9/11 (Pfiffner 2004). In making these arguments, his administration attempted to politicize the intelligence process in order to bolster its claims by (1) creating new bureaucratic units to bypass the intelligence community; (2) “stovepiping” raw intelligence directly to the White House; and (3) pressuring the CIA to adjust its analysis to support the administration’s policy goal of war with Iraq. The traditional public administration division of labor calls for career professionals to give their best judgment to their political superiors and for political officials to make policy decisions (Heclo 1977, 1999b). It is the prerogative of political appointees to make policy decisions, regardless of whether their decisions seem to be supported by the analysis of career professionals. But politicians are often tempted to distort the evidence to make it seem as if their policy decisions are based on solid evidence and advice from careerexperts.
The obligation of career professionals in this dichotomy is to “speak truth to power” (Wildavsky 1987). That is, they must present their best professional evidence and analysis to political leaders, regardless of whether their conclusions support the politicians’ policy preferences, and then they must carry out legitimate orders regardless of their own judgments about the wisdom of the policy. As Weber argued, “Without this moral discipline and self-denial, in the highest sense, the whole apparatus would fall to pieces” (Weber 1946, 95).
A more pithy definition of politicization in the case of Iraq was articulated by the head of Britain’s Secret Intelligence Service when he reported in July 2002 that, after his meeting in Washington with U.S. officials, “Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy” (Rycroft 2002; emphasis added).
The normal intelligence process calls for all “raw” reports from the field to be carefully vetted by analysts to ensure that the sources are credible and that the information fits with what else is known about the particular issue. This might include examining the history of the issue or checking with other U.S. or allied intelligence agencies. In 2002, the political leadership in the Department of Defense and in the White House had become convinced that the U.S. intelligence community—and the CIA in particular—were discounting the link between Saddam and Osama bin Laden and ignoring the information coming from Ahmed Chalabi and his associates.
This belief led Douglas Feith, then U.S. undersecretary of defense for policy, to use the Office of Special Plans and the Policy Counterterrorism Evaluation Group, created shortly after 9/11, to provide alternative analytical perspectives to those being produced by the CIA (Goldberg 2005; Hersh 2003; Jehl 2003; Phillips 2003;). Feith’s units had close working relationships with the Iraqi National Congress, which the United States had funded and was headed by Chalabi. The CIA, the Defense Intelligence Agency, and the Bureau of Intelligence Research at the State Department, however, had become skeptical about the reliability of Chalabi and the defectors from Iraq whom he supported. They concluded that Chalabi was unreliable and that the defectors had a stake in overthrowing Saddam and thus were exaggerating or fabricating reports of Saddam’s weapons of mass destruction. Feith, however, thought the defectors were reporting accurately and that the CIA was ignoring a valuable intelligence source.
So instead of allowing the CIA to vet the intelligence from Chalabi and the defectors, Feith stovepiped the reports of the Iraqi defectors straight to the White House—to the vice president’s staff and the National Security Council staff—without any opportunity for comments by career intelligence professionals. According to Kenneth Pollack, who wrote a book supporting the war with Iraq, the Bush administration “dismantled the existing filtering process that for fifty years had been preventing the policy makers from getting bad information. They created stovepipes to get the information they wanted directly to the top leadership. Their position is that the professional bureaucracy is deliberately and maliciously keeping information from them” (Hersh 2003, 87).
The point here is not that White House officials should not get raw intelligence or direct reports from the field; rather, it is that to be fully informed, they also ought to get the best judgment of career intelligence professionals about the credibility of the sources and their interpretation of the information. Thus, White House officials, who were predisposed to believe Feith and Chalabi and had pressured the CIA to support their predispositions, used faulty evidence and noncredible intelligence in their decision making about going to war with Iraq and obtaining public support for it (Pfiffner 2004, forthcoming).
Intelligence may also have been politicized by pressure placed on intelligence analysts to arrive at the conclusions favored by political levels of the Bush administration. During the summer and fall of 2002, Vice President Cheney made multiple visits to CIA headquarters in Langley, Virginia, to ask sharp questions about the CIA’s analysis of intelligence relating to Iraq. At one point, the deputy associate director of the CIA threatened to resign because of pressure from the White House to confirm that Saddam and al-Qaeda were closely connected. She refused to rewrite the report another time, and CIA director George Tenet supported her decision and defended her from National Security Council pressure (Suskind 2006, 191). Although it is appropriate for the vice president or other high-level officials to question intelligence conclusions, there is a fine line between skeptical questioning and pressure for a specific outcome.
Despite the findings of no political interference by the Senate Select Committee and the Robb-Silberman Commission, some intelligence officials said they had felt pressure during these visits to write reports that would help the administration make the case for war (Risen 2003). In one case, the pressure was successful. “Curveball” was an Iraqi exile held by Germany and the source of reports on the mobile biological weapons labs that turned out not to exist. When one Defense Department biological weapons analyst—the only U.S. intelligence official who had met Curveball—read Secretary Powell’s draft speech to the United Nations, he felt he had to warn Powell that Curveball was not reliable. But the CIA deputy chief of the Iraqi Task Force wrote him an e-mail saying, “Let’s keep in mind the fact that this war’s going to happen regardless of what Curveball said or didn’t say, and that the Powers That Be probably aren’t terribly interested in whether Curveball knows what he’s talking about” (Johnston 2004). The CIA later admitted that the mobile trailers were intended for producing hydrogen rather than for use as biological weapons.
Perhaps the most authoritative evidence that political officers of the Bush administration tried to politicize intelligence prior to the Iraq War is the testimony of Paul R. Pillar. Pillar was the national intelligence officer who had responsibility for Middle East intelligence from 2002 to 2005 and directed the coordination of the intelligence community’s assessments of Iraq. In an article in Foreign Affairs, Pillar charged that (1) “official intelligence analysis was not relied on in making even the most significant national security decisions”; (2) “intelligence was misused publicly to justify decisions already made”; and (3) “the intelligence community’s own work was politicized” (2006, 18). Pillar concluded, “The administration used intelligence not to inform decision making, but to justify a decision already made. It went to war without requesting—and evidently without being influenced by—any strategic-level intelligence assessments on any aspect of Iraq” (27).
The loss of U.S. credibility when no weapons of mass destruction were found in Iraq stemmed from Vice President Cheney’s pressure on the CIA and President Bush’s unwillingness to weigh thoroughly reservations about the evidence from the Departments of State and Energy (Pfiffner 2004, forthcoming).
President Bush undertook the most far-reaching reorganization of the executive branch since the National Security Act of 1947. Although he initially opposed the creation of the Department of Homeland Security and was skeptical of intelligence reorganization, he co-opted the reorganization plans and used them to his political advantage.
During the first several years of his administration, President Bush became convinced that the CIA was both incompetent and that elements within the agency were trying to undermine his administration (Brooks 2004; McLaughlin 2005; Novak 2004). High-level officials, particularly Cheney and Rumsfeld, also believed that the CIA was soft, risk averse, and not aggressive enough for the war on terror and that it had made major misjudgments by failing to prevent the 9/11 attacks and being wrong about the presence of weapons of mass destruction in Iraq. President Bush typified his administration’s attitude toward dissenting voices when the CIA chief of station in Baghdad wrote a report in 2004 that the war in Iraq was not going well. “What is he, some kind of defeatist?” asked the president (Robinson and Whitelaw 2006).
Because the CIA refused to confirm the administration’s claim of a connection between Saddam and al-Qaeda, President Bush concluded that it was not sufficiently responsive. And when leaks to the press seemed to indicate that the CIA disagreed with the administration about some aspects of Iraq policy, he concluded that it was trying to undermine his administration. The consequences included a purge of the top levels of the CIA and the largest reorganization of the intelligence community since the CIA was created in 1947.
President Bush decided to make major changes in the intelligence community. First, he replaced Tenet as director of the CIA with Porter Goss, head of the House Intelligence Committee and an administration loyalist who had been long critical of the CIA. Second, the president signed a bill that directed a major overhaul and reorganization of the intelligence community. The major political impetus for the reorganization came from the 9/11 Commission, which exerted considerable public pressure for the reform. But President Bush used the highly visible reorganization as an opportunity to replace the CIA as the primary intelligence analysis agency for the United States, a stature that it had enjoyed since its creation in 1947.
The new director of national intelligence would report directly to the president and would take over the role (previously played by the director of the CIA) of coordinating the 15 separate intelligence agencies throughout the government. What this meant was that the CIA director would no longer produce the President’s Daily Brief or personally brief the president. In addition, the director of national intelligence would control the newly established Counter Terrorism Center and build up his or her own bureaucracy of more than 1,500 personnel, some of them recruited from the CIA. The CIA would play a correspondingly less important role in intelligence analysis, though it would continue to be the home of the newly created Clandestine Service, the new name for the Directorate of Operations. This service would be expanded considerably as the CIA’s “humint” (human intelligence, or spying) capacity was built up. The other challenge to the CIA’s previous status came from the Pentagon, which allocated more resources to human intelligence and created a parallel clandestine service capacity (Schmitt 2006).
After Goss had spent 18 months at the CIA, the resentment of the remaining career professionals and the disarray at the agency was so great that President Bush replaced Goss with Michael Hayden in 2006. But the CIA was in eclipse. The new director of national intelligence wrote the President’s Daily Brief and delivered the daily intelligence briefing to the president. The CIA clandestine services were expanded, but their intelligence analysis function was subordinated to the bureaucracy of the director of national intelligence. And the CIA clandestine service had to share its function with the expanded humint capacity of the Defense Department. As with any large-scale reorganization, its success could not be judged immediately, but it is likely to take years before the overlapping jurisdictions can be sorted out.
The department of homeland security, FEMA, and the katrina disaster
President Bush’s public image as a competent, MBA-type manager of the executive branch probably suffered most from the disaster wrought by Hurricane Katrina and its devastation of the Gulf Coast, especially New Orleans. The response of the federal government was dilatory and ineffective, and the coordination of federal, state, and local agencies was not successful. The lasting sound bite from the era was Bush’s praise for Federal Emergency Management Agency (FEMA) director Michael Brown on September 2, 2005, just as the full range of the government’s inadequate response was becoming apparent: “Brownie, you’re doing a heck of a job” (Brinkley 2006, 548). Within two weeks, Brown was forced to resign and had become a symbol of incompetent political leadership of a professional agency.
Although President Bush could not have prevented much of the disaster by taking different actions during the crisis, the disaster did have public administration roots, some of which can be attributed to the Bush administration. The fundamental problems that Katrina illuminated had grown slowly over the preceding decades. The channeling of the Mississippi River and the loss of wetlands protecting the coast had enabled New Orleans to become a major port and commerce center, but the coastal reengineering had also made the city more vulnerable to major flooding during hurricanes (Brinkley 2006, 9).
Over the preceding decade, many alarms had been sounded about the need for more funding for and reinforcement of the levees that kept the river, lake, and gulf waters at bay. But more importantly, the levees that had been built by the Army Corps of Engineers were poorly designed and based on inadequate soil foundations. Thus, it was not the winds of Katrina that did the most damage, or even flood levees that were overtopped by the rising water, but the structural failure of the dams, which resulted in breaches (especially the 17th Street breach) that caused the inundation of New Orleans. These public administration failures were shared by many elected and appointed officials at all three levels of government over a period of decades.
The public administration failures of the Katrina disaster, in addition to the actions (or inactions) of state and local officials, also stemmed from President Bush’s personnel decisions and the creation of the federal Department of Homeland Security. In the aftermath of 9/11, when it became clear that Congress was likely to create a new department, despite the objections of the president, President Bush quickly co-opted the plan by setting up a secret study group to put together a White House plan for a new department. Planning was done literally in the White House basement, in the President’s Emergency Operations Center by a group of five White House staffers who designed the administration’s proposal for the Department of Homeland Security (Brook et al. 2006, 90). One problem was that the people who were doing the planning did not have an operational understanding of the boxes they were moving around on the organizational chart (Brook et al. 2006, 89–90).
When the new Department of Homeland Security opened its doors in the spring of 2003, it comprised 22 different agencies with 170,000 employees and a $40 billion budget, the largest reorganization of the executive branch since the National Security Act of 1947 created the Department of Defense, the CIA, and the National Security Council. The reorganization was important as a symbolic statement that the federal government was changing itself substantially to face the new challenge of terrorism. Although the ostensible purpose of the reorganization was to ensure that the disparate agencies would be guided by a secretary with a coherent view of the big picture, the reality of any large reorganization is that the legacy agencies, with their long-established cultures that are not easily changed, are often forced into a marriage that they do not want.
The path of the Department of Homeland Security after its creation was not smooth, and it suffered all of the ills that were predictable in a newly created behemoth of a department. One of these problems was presented by the inclusion of FEMA, which had been established in 1979 when President Jimmy Carter sought to combine a number of different agencies with disaster preparedness and response responsibilities. The agency was designed to be independent rather than subsumed into a larger department, and when President Clinton came into office, he granted it departmental status, with its director reporting directly to the president. He also appointed as its director James Lee Witt, a professional public administrator who had been the director of emergency preparedness in Arkansas. Under Witt, FEMA increased its professionalism, funding, and responsibilities.
When Joseph Allbaugh, President Bush’s campaign manager, resigned as FEMA’s director, Bush filled the position with Allbaugh’s deputy, Michael Brown, who had also been Allbaugh’s college roommate. Brown had previously been the head of horse-show judging at the International Arabian Horse Association and had padded his résumé in several ways (Brinkley 2006, 246). Thus, part of the problem of FEMA’s inadequate response to Katrina was the lack of professionalism in its political appointees, many of whom had little experience in emergency management.
But part of FEMA’s problem was structural and attributable to the creation of the Department of Homeland Security. The leadership of FEMA did not want to be included in the newly created department, fearing that it would be swallowed up in the huge bureaucracy and that its mission of ameliorating natural disasters would be subordinated to fighting terrorism. Its budget and personnel were cut and shifted to other homeland security priorities. For example, FEMA lost control of its grant making to state and local government when this function was moved to the secretary of homeland security’s office. This, in turn, severed important connections with state and local emergency responders and cut funds for preparedness. In addition, the focus of the grants was shifted to antiterrorism purposes rather than natural disaster response. The National Response Plan, mandated by the Homeland Security Act of 2002, was taken from FEMA and given to the Transportation Security Administration. The Office for National Preparedness and the Office for Domestic Preparedness were each brought into the new department but not placed under FEMA.
Each of these losses of bureaucratic resources took a toll on the seasoned career management of FEMA, and the agency suffered a brain drain of its senior career professionals. Thus, the FEMA that faced the catastrophe of Katrina was not the same FEMA that the Bush administration had inherited.
The inadequate federal governmental response to Katrina was the result of a combination of organizational, personnel, and resource decisions of the Bush administration. No level of federal preparedness could have eliminated much of the suffering and damage caused by the natural disaster (and bad engineering), but political appointments at FEMA and the consequences of placing it in the Department of Homeland Security exacerbated the tragedy. The most important things that President Bush could have done in the immediate aftermath of the storm were symbolic in nature and had to do with political leadership rather than public administration. He might have recognized the urgency of the situation more quickly and projected his concern for the victims more effectively. Ironically, political leadership was President Bush’s strength, and that is the level at which his actions were not seen as adequate.
President Bush’s strengths as a political leader include bold thinking and consistent adherence to his chosen policies. Many perceive him as a strong leader, especially in national security matters. He has infused loyalty in most of his immediate subordinates and delegated sufficient authority for them to carry out his goals. His appointments at the top levels of his administration have been impressive in their racial and gender diversity. His policy successes have been the result his formidable political skills, but his deficiencies as a manager have undermined his policy victories. These deficiencies include his lack of systematic deliberation over policy alternatives and his failure to weigh sufficiently the judgments of military and other public administration professionals.
President Bush was able to overcome the objections of many in the Army Officer Corps in his successful political campaign to take the United States to war with Iraq. Yet his failure to heed their advice about the number of U.S. troops needed to ensure security after military victory has led to a costly occupation and ongoing insurgency. President Bush was successful in overcoming the objections of Colin Powell and career JAG officers in his decision to suspend the Geneva Conventions. Yet this policy decision led to the abuses at Guantánamo, in Afghanistan, and at Abu Ghraib that have severely damaged the reputation of the United States throughout the world. He also succeeded in using the intelligence community to bolster his claims regarding the threat of weapons of mass destruction in Iraq. But his success in convincing the country to go to war in Iraq turned into embarrassment when no such weapons were found.
President Bush’s reorganization of the executive branch in the creation of the Department of Homeland Security and the Directorate of National Intelligence skillfully symbolize the administration’s response to the post–9/11 security environment. But in the process of making some of the necessary changes, the professionalism of FEMA and the CIA were compromised. Although President Bush’s historical legacy cannot yet be judged, his legacy as a public administrator will significantly affect the evaluation of his administration.
Just as he has asserted strong top-down control of the executive branch, President Bush has made extraordinary claims regarding the constitutional power of the president. Although presidents of both parties have sought to enhance and protect executive prerogatives, President Bush’s grasp has exceeded that of most of his predecessors in scope and degree, if not in kind.
In his use of signing statements, President Bush has implied that he might not enforce certain parts of laws that he deems to be in conflict with his own constitutional powers. In ordering the National Security Agency to undertake surveillance of Americans in the United States without obtaining warrants, he has refused to follow the mandates of the Foreign Intelligence Surveillance Act. In his assertion of power to imprison “enemy combatants” indefinitely without due process of law, he has attempted to skirt the Fourth Amendment of the Constitution. In his initial establishment of military tribunals, he has ignored the due processes of law traditionally accorded the accused. In his use of “extraordinary rendition” and the establishment of “black sites” in Europe to secretly imprison suspected terrorists, he has flouted international law. In setting aside the Geneva Conventions, he has ignored the treaties signed by the United States and possibly U.S. laws against torture. In addition, his administration has done much to keep the policies and practices of the U.S. government secret from its citizens.
These actions call into question the foundations of a constitutional republic that is accountable to the people. The rule of law is fundamental to a republic because freedom, liberty, and democracy are impossible without it. Secrecy, extraordinary claims to executive power, and an unwillingness to listen to outside advice can be dangerous to a Madisonian system of divided powers. Madison posited that “ambition must be made to counteract ambition,” and the executive is fulfilling Madison’s expectations of executive assertiveness. Congress, however, has not recently applied the countervailing force that Madison expected. Only the courts, so far, have put up small roadblocks in the path of executive assertions of power.
In its ruling in Hamdan v. Rumsfeld, the U.S. Supreme Court refused to allow the executive to create military tribunals without legislative authorization or providing for the due process of law. Most notably, Justice Sandra Day O’Conner declared in Hamdi v. Rumsfeld (159 L.Ed. 2d 578 ), “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”
At the close of the Constitutional Convention in 1787, Benjamin Franklin is reported to have said, in response to a query as to what the framers had created, “A republic, Madam, if you can keep it.” Whether the republic will endure depends on whether we can maintain the balance of constitutional powers envisioned by the framers of the Constitution.
Many colleagues and friends gave helpful comments on an earlier version of this article, but they should not be implicated in my analysis or conclusions. They include Mark Abramson, Peri Arnold, John Besanko, Meena Bose, Lara Brown, Naomi Caiden, Tom Coghlan, Jim Conant, Philip Cooper, Jason Dechant, Lou Fisher, Lew Gawthrop, Michael Genovese, Charles Goodsell, Bill Gormley, Lewis Gould, David Hart, Hugh Heclo, Matthew Holden, Pat Ingraham, Herb Jasper, David Lewis, Ken Meier, Ron Moe, Chester Newland, Jim Perry, Norma Riccucci, Jim Riggle, John Sacco, Richard Stillman, Bob Spitzer, Jim Thurber, Jeffrey Weinberg, and Don Wortman.
President Bush served in the National Guard, Vice President Cheney received deferments during the Vietnam War, and Secretary Rumsfeld flew jets for the navy during the 1950s but was not in combat. Neither Wolfowitz, Tenet, Rice, nor Hadley had military experience.
One of the main concerns of the administration seems to have been that U.S. soldiers could be prosecuted under the U.S. War Crimes Act (18 U.S.C. Par. 2441 [Sup. III 1997]). Gonzales argued that exempting captured al-Qaeda and Taliban prisoners from the Geneva Convention protections would preclude the prosecution of U.S. soldiers under the War Crimes Act. “A determination that the GPW [Geneva Convention on the Treatment of Prisoners of War] is not applicable to the Taliban would mean that Section 2441 would not apply to actions taken with respect to the Taliban” (Gonzales 2002, 2).
The Schlesinger report said that pressure was not intended, but the high-level visits may have been interpreted as pressure. Despite the number of visits and the intensity of interest in actionable intelligence, however, the “panel found no undue pressure exerted by senior officials. Nevertheless, their eagerness for intelligence may have been perceived by interrogators as pressure” (Schlesinger 2004, 69).