(updated below - updated again)
Over the weekend, it was revealed by National Review's Ramesh Ponnuru that Rudy Giuliani believes that, as President, he would have the power to imprison American citizens without any sort of review of any kind, and Giuliani stated he hoped to exercise that power only "infrequently" (Mitt Romney said he'd have to convene a team of "smart lawyers" before he could answer). That Giuliani expressly believes that, as President, he can exercise (and apparently intends to exercise, though just "infrequently") one of the most tyrannical and un-American powers there is received notice only in the blogosphere, but not in any national media outlets.
Now, NR's Rich Lowry, who attended a Giuliani event in New Hampshire last night, reveals statements made by Giuliani explaining his views of presidential war powers that are at least as extremist and disturbing as the ones revealed this weekend:
Rudy to Bush: Ignore Congress?
Rudy was asked about the Iraq supplemental. He said he finds it "irresponsible and dangerous." Then he began to muse about, after a veto, "would the president have the constitutional authority to support them [the troops], anyway?" He said he's a lawyer so he wouldn't offer an opinion "off the top of his head," then he proceeded to do just that.
He seemed to suggest that Bush could fund the Iraq war without Congress providing funding, but it was confusing. In an interview with a New Hampshire TV reporter after his remarks, he seemed more categorical and said, since the war had been authorized by Congress, the president has "the inherent authority to support the troops." But he added, "You have to ask a constitutional lawyer."
It really should go without saying that (as even Bush supporter Rich Lowry recognizes) these comments ought to be a major media story. One could even argue that, standing alone, they are office-disqualifying. Particularly in light of Giuliani's belief in process-less arrest of American citizens, this really is a complete repudiation of how our government works, of the most basic and unquestioned constitutional principles of our republic. Literally.
At least up until now, even the most radical of the Bush Theorists of Presidential Omnipotence -- even the John Yoo/Dick Cheney/David Addington strain -- have acknowledged that the two (and, in their view, seemingly only) powers Congress has is to fund or de-fund various policies, and make decisions about war, and that Congress therefore has the power to end the war in Iraq by refusing to fund it or de-authorizing it. Even John Yoo -- the most radical worshipper of limitless executive power and one of the architects of the administration's radical theories of lawlessness -- said in a February Op-Ed in The New York Times:
The fact is, Congress has every power to end the war -- if it really wanted to. It has the power of the purse. . . . Not only could Congress cut off money, it could require scheduled troop withdrawals, shrink or eliminate units, or freeze weapons supplies. It could even repeal or amend the authorization to use force it passed in 2002. . . .
But to stop President Bush's proposed troop surge, Congress doesn't have to do anything. It can just sit back and fail to enact the periodic supplemental spending measures required to keep the war going. Congress has wielded considerable power by just threatening such measures, as with President James K. Polk in the Mexican-American War and President Ronald Reagan in Lebanon after the 1983 barracks bombing.
That Yoo and company recognize this power is not a sign of their reasonableness. They hardly have a choice. The Constitution unambiguously and expressly assigns these powers to Congress in Article I -- so clearly that even the Cheney wing does not dare deny these powers. Yet here is Giuliani expressly proclaiming that Congress has no such power, that the President can literally ignore the Congressional exercise of the funding power and simply fund his own wars, presumably from some Presidential slush fund or by diverting the money from elsewhere.
Really, what country is Giuliani describing? It's basically an open embrace of the Iran-Contra theory of Government -- where Congress cuts off funding, the President can just go find a secret fund somewhere else and fund it anyway. To his credit, Lowry recognized just how extreme and damaging these statements are, and so he pursued it further with Giuliani after the event:
In a brief press availability in front of his campaign bus, I asked Rudy whether he was saying Bush could veto the supplemental and, in the absence of a deal with Congress, fund the troops in Iraq under his own authority. "If he vetoes it, he's going to have to find a way to support the troops," Rudy said. "They have given him the authorization to fight the war," and "Bush has the power to redirect the money and time to work something out" with Congress. The last bit suggests that maybe Rudy is thinking in terms of only the next few weeks and not making a broader claim about presidential authority (although he kept on saying "inherent authority" over and over).
But it wasn't quite clear what he meant, and his statements could be seized on by his critics to argue that he has a dangerously out-sized view of presidential powers. I'll defer to the lawyers in here, but my understanding is that Rudy is wrong: the president can't simply re-direct money Congress has appropriated for specific purposes.
Despite the minimal caveats, Giuliani made the claim three times in the same night -- first at the event itself, then in an interview with a local reporter afterwards, then with Lowry. Each time, he proclaimed that the President has the power to fund the war on his own even once Congress exercises its Constitutional power -- a power which, up until now, I have never heard anyone question -- to cut off funding for the war.
And Giuliani's caveats are meaningless. Certain ideas are so obviously wrong and repellent to our system of government -- such as process-less imprisonment of American citizens, or a President's power to fund his own war over Congressional de-funding -- that no American with an instinctive belief in that system would even be receptive to it. The very idea that the President can prosecute and fund a war unilaterally -- out of some secret Executive slush fund of billions of dollars that he lords over, or by diverting funds appropriated for other purposes -- is (just like Giuliani's belief in process-less imprisonment) the very opposite of our constitutional framework.
Giuliani's reign in New York revealed unmistakably how instinctively authoritarian he is. There are many superb prosecutors in this country who perform an honorable and important function. But what makes a good prosecutor is a sense of balance and restraint as a proper limit on the power of government coercion. In my view, what demonstrated what a superior prosecutor Patrick Fitzgerald is was not that he obtained an indictment and conviction of Lewis Libby, but that he chose not to indict Karl Rove, even though he plainly could have secured an indictment. Good prosecutors believe in genuine restraints and limits on government power -- and, most of all, recognize that their belief that they are on the side of Good does not justify limitless power.
Giuliani is the precise opposite. He has the mentality and instincts of the definitively overzealous and wild-eyed prosecutor who (just like George Bush) believes so much in his own Righteouness that he sees any limitations on his power as an ally of Evil. For that reason, he exhibits unbridled contempt for limitations on government authority and he just refuses to accept such limits. Whatever else is true about Giuliani, that is exactly the most dangerous attribute in a candidate at this time in our country when the dominant right-wing faction of the Republican Party believes in vesting -- and has made great strides to vest -- the very tyrannical powers in the Leader which our country was founded to avoid.
This Salon article by Cintra Wilson remains an excellent summary of Giuliani's conduct in public life which reveals what a power-worshipping authoritarian he really is. It is for precisely that reason that I wrote a couple months ago that Giuliani's candidacy was being wildly under-estimated, because what the "base" of today's Republican Party wants far more than anything else (far more than social conservative purity) is a power-exuding authoritarian Leader -- in particular, someone who has genuine contempt for the Enemies (The Terorrists and the liberals, not necessarily in that order) and a resulting refusal to recognize any limits in his powers to fight against those enemies.
More than any other candidate, Giuliani exudes those authoritarian traits, which is what accounts for his unparalleled popularity as a candidate, including among the extremist base of the GOP. And it's why they can't stand McCain even though his views are actually more doctrinally "conservative" than Giuliani's -- because McCain doesn't seem to hate liberals viscerally enough and seems to believe in some (very minimal) limits and restraints on what the Leader can do.
Rudy Giuliani -- the leading Republican candidate for President -- has made two of the most extraordinary statements of any major presidential candidate in a long time. In a rational world, this would be a major scandal and Democratic (and the other Republican) candidates would be rushing to make their views clear on these matters. But the revelation that Giuliani believes in process-less imprisonment (and that Romney can only decide once his lawyers are done debating it) provoked virtually no attention (but hey, those first-quarter fundraising numbers sure were interesting!).
Despite the fact that the media is only recently acknowledging it, we have had a serious Constitutional crisis in this country for the last six years as a result of a President who literally embraces a theory that vests him with the power to ignore the law. That crisis never really materialized because the submissive Congress acquiesced to the concept of President as monarch -- the Republican-led Congress (often with the passive acceptance of Democrats) chose to do nothing when the array of presidential lawbreaking was discovered (other than pass laws retroactively legalizing the lawbreaking).
For that reason, it is actually unknown what the Bush administration would really do if Congress (or the courts) sought to impose genuine limits on the President's will even in areas where those branches have unquestioned authority to act -- would the White House accept those limits or proclaim them to be invalid (because they impermissibly interfere with the President's "inherent powers") and ignore them? But here Giuliani is, making expressly clear what he would do in such a situation. Nothing can limit his powers, including express provisions of the Constitution regarding war-making. That seems worthy of some note, at least.
UPDATE: It is glaringly clear that the most important priority for the Republican base -- by far -- is that the new Leader be filled with contempt for his enemies and refuse to accept limits on his own power. Anyone who doubts that should consider the fact that conservative pundits like Kate O'Beirne (here and here ) and Rich Lowry (here) have both said that Giuliani's horrendous and publicly humiliating treatment of his second wife, as he was divorcing her, is actually a great asset among some Republican base voters. As Lowry put it:
Have been talking to some smart people today about Giuliani. Two of them said independently that the appeal of Giuliani is he'd be "a tough SOB -- for you," and that he'd be "a d*head -- for you." Another said . . . that a Giuliani supporter he knows considers the nasty divorce a kind of asset because it speaks to his toughness. . . .
Giuliani doesn't want to fight with the social right and that makes him different from most past pro-choice candidates, and Giuliani gets credit from conservatives for the sheer pugnacity with which he's stood up to liberals.
O'Beirne passed along an email from a friend which stated: "Contrary to popular speculation, the apparently brutal public dumping of Donna Hanover can only bolster the popularity of the man with conservatives." O'Beirne also suggested that an old Giuliani campaign ad showcasing his lovely family could be revised to say: "Don't worry. I dumped them all because I am that tough guy."
The "family values" party considers it an asset that their leading candidate so brutally dumped his second wife in order to marry his third one. That is why it is no surprise that a thrice-married, social conservative "liberal" can be so wildly popular among the GOP base. It is not political "conservatism" in the way that term has been understood, but instead is an authoritarian movement that venerates state power and desperately seeks a strong, protective Leader far more than any political beliefs or policies. Haven't the last six years demonstrated that beyond doubt?
That is why Giuliani's craving for radical and undemocratic powers -- and his glaring openness about it -- will only bolster his appeal in this party (in exactly the way that George Bush's did, and in exactly the way that John McCain's disloyal efforts to impose some minimal (really just symbolic) limits on the President's detention and interrogation powers earned him such contempt).
UPDATE II: Lowry now passes on an e-mail from "a friend" suggesting that there is authority in a statute -- The Food & Forage Act of 1861 -- which allows some short-term presidential reshuffling of appropriations where the monies authorized for certain programs fall short. Leave aside the (not entirely clear) question of whether that statute would authorize a few weeks worth of funding of the Iraq War where Congress has refused to fund the entire venture (as opposed to merely failing to appropriate enough monies for activities it seeks to fund).
Regardless of any of those quibblings, it is abundantly clear that Giuliani was not referring to this bureaucratic statutory re-shuffling power, since -- as Lowry himself noted -- Giluiani "kept on saying 'inherent authority' over and over" to justify the President's power to fund the war even if Congress refuses to do so. That is the Yoo Theory of The Omnipotent President applied to war funding -- if, as Giuliani himself said, he believes that the President has the "inherent authority" to fund and prosecute a war once it begins, then it means, by definition, that he has this power regardless of what any statute says, and that (at least in the Yoo world) there are no limits (temporal or situational) that can be placed on that power.
Giuliani himself said he was relying not upon any statutory power, but -- as he put it -- "the inherent authority to support the troops." This was the question Giuliani said he was addressing: whether "the president ha[s] the constitutional authority to support them [the troops], anyway." Searching around now for a statute is merely an effort after the fact to bestow a more benign meaning on Giuliani's comments that he plainly did not intend.