Presidentialism, National Security, and the Breakdown of Government Lawyering

in Madison's Nightmare

Published by University of Chicago Press

Published in print May 2009 | ISBN: 9780226749396
Published online March 2013 | e-ISBN: 9780226749426 | DOI:
Presidentialism, National Security, and the Breakdown of Government Lawyering

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This chapter explores the national security policy making, emphasizing on the “Bush 43” Administration. It argues that presidentialism is likely to degrade the quality of decision making for a special reason, by eroding government attorneys' conscientious attention to the law, which is supposed to operate as a check on abuses of government power. The government's position in defense of warrantless surveillance in violation of Foreign Intelligence Surveillance Act of 1978 (FISA) strongly suggests that the scope for independent judgment was dangerously narrowed. The decisions analyzed in this chapter occurred in a policy making context—national security policy—in which Presidents have not only promoted presidentialism in theory, but in which they have very substantially succeeded, especially in the Bush 43 Administration, in making policy under conditions of secrecy and unaccountability that embody presidentialist assumptions. Guantanamo, Abu Ghraib, and Maher Arar are the real-world fruits of presidentialism.

Keywords: national security; policy making; Bush 43 Administration; presidentialism; Foreign Intelligence Surveillance Act; Guantanamo; Abu Ghraib; Maher Arar

Chapter.  12698 words. 

Subjects: Constitutional and Administrative Law

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