UNCHECKED AND UNBALANCED

Two notable legal scholars question the controversial tactics of the Bush White House and the underlying legitimacy of its wartime actions.

Laborious, detailed research leads the authors to conclude that the essential political doctrine of institutional checks and balances in this instance has failed. Schwarz has unique experience in this intellectual arena: He served as chief counsel for the Church Committee, which investigated the intelligence community in the wake of the Watergate scandal. Here, Schwarz and coauthor Huq (both at NYU Law School’s Brennan Center for Justice) revisit the “overreaching and abuse” that tainted the Nixon presidency and speculate that the ambiguous legal postures adopted by the Bush administration stem from a deliberate strategy to establish a monarchical executive branch. Divided into three sections, the book first examines the early years of the FBI and CIA, reconsidering the key institutional flaws in government operating procedures identified by the Church Committee. In the second section, the authors review the official United States policy on torture in light of the exposed abuses at Abu Ghraib and shed light on the new “enemy combatant” designation. They scrutinize the shadowy practice of “extraordinary rendition” (transferring detainees to foreign countries outside the jurisdiction of judicial oversight) and touch on privacy concerns raised by the hotly debated USA Patriot Act. A final section attacks the legal basis for powers claimed by the executive branch, saving its strongest criticisms for the Office of Legal Counsel and the unitary executive theory championed by former deputy assistant attorney general John Yoo. It’s to the authors’ credit that they draw a definitive philosophical line in the sand without succumbing to the righteous anger that spoils many modern-day political treatises. By addressing thorny political issues with lucid arguments and making their moral rationalizations with the revolutionary zeal of pamphleteers, Schwartz and Huq deliver a sharp censure of all leaders who ignore the lessons of history.

A disquieting case for governmental fair play.