As I've mentioned in the past, there is a fundamental danger in an American presidential republic, which is that the head of government and the head of state are the same person. This invests the head of government with a lot of power; the symbolic power of the head of state can be used by the president to influence (or even dominate) domestic politics. This power waxes and wanes, of course, but in situations of perceived crisis it can be overwhelming, thanks to the natural need of nations and societies to have some person to rally around. This is why the Royals in England were so important in keeping spirits up during the Blitz, and why American presidents tend to enjoy so much lattitude.

When crises arise, then, there is both the opportunity and, lets face it, a clear desire for the head of state to "take charge and lead the people". If the problems of politics get in the way, then the president has a nearly irresistable opportunity to sweep those "problems" away, which usually means "emergency powers" of some sort. Once gained, these powers are very rarely given up, as there are always new "crises" to exploit to retain them.

(This can be done with the best of intentions; democratic politics can be maddeningly slow. A president that seizes power isn't necessarily evil or power-mad; he could be a good man that honestly believes that this is necessary.)

A king or queen can't really do this, because their role as embodiment of the people doesn't stem from popular acclaim but their membership in a particular family. People's commitment to popular rule is too strong nowadays for family ties to be seen as justification for conferring absolute power. A king couldn't dissolve the legislature by claiming that it's the "will of the people"; he'd get quickly contradicted by his (elected) prime minister as head of government. Every president, however, can at least partially claim legitimacy as the embodiment of the popular will. It is that will from which his legitimacy stems, but it is also that will from which modern cults of personality are born.

These sorts of events are incredibly common. In fact, they're so common that the fact that the United States has never had this happen has baffled political scientists since the phenomenon was noticed. There are a number of theories as to why, but my own favorite stems from an American military tradition, which is that soldiers swear loyalty to the Constitution, not the president, despite being their "commander in chief". One of the most treasured aspects of the American system is its balance of power between judiciary, executive and legislature; while its effectiveness can sometimes be questioned, it's important in that it enshrines the idea that the United States is a country where the laws stand above the president; that the symbolic power of a head of state will never confer absolute power upon him. "L'etat c'est moi" does not apply. It is, perhaps, the only way in which one can have a powerful president without having the system fly apart in the face of crisis.

Josh and the WSJ, however, has shown that the United States may be moving in the direction of countries like Argentina and Chile. The line of argument made in the memo isn't new, but very, very old... it's the first stage in a possible process where the powers of the laws is eroded and the powers of the executive rise in their place. Arguing that the president has the right to "set aside the laws" is an argument for absolute executive power, because the supremacy of "the laws" is the only real power that the legislature and judiciary have. Without this legal supremacy, the United States becomes like every other fragile republic in the Americas.

We know what will happen. We've seen it dozens of times before, and we'll see it dozens of times in the future. Republics are always haunted by the spectre of their "commanders-in-chief" becoming simply "commanders". The Latin word for commander is "imperator", more popularly known as "emperor". America may yet have its Napoleon; its Octavian. That it hasn't happened yet does not mean it won't.

This memo and the ideas that underlie it does not make empire inevitable; it is, however, the first necessary step in journeying down that road.

And this, from Digby on Hullabaloo:

Unbenownst to anyone up to now, the US Constitution is apparently the basis for a legal dictatorship. Very interesting indeed that such a radical new interpretation of presidential power should be "discovered" by an administration that was installed by a 5 to 4 vote by the Supreme Court, isn't it?

What's the old saying, "begin as you mean to go on?" They went on as they began, all right, using all levers of power in service of their desired goals regardless of legal precedent or constitutional legitimacy. We shouldn't be surprised. This is what people who pursue power for its own sake always do.

Subversion of the Constitution really is treasonous (pace Ann Coulter's scurrilous attacks on liberals, progressives and Democrats in general as traitors), but since the only practical way to prosecute it is through impeachment in the Congress, nothing will happen on this. It's actually a much more serious charge than the Valerie Plame leak, which, while serious and illegal, doesn't go to the core meaning of what a constitutional republic is (which was also why Nixon's misdeeds in Watergate were more important that the penny-ante breaking-and-entering which provoked its discovery), but it's more likely that some sort of legal action will come from Plame than it is that anything will happen from the Torturegate memo. That's just the reality of having all three branches of the government controlled by one party, the party of those who are doing the bad deeds.


More from Digby, from The American Street:

This torture memo shocked me. And it shocked me not because of its endorsement of torture, we knew something about that already, indeed we've seen pictures of it. No, strangely, it shocked me because it was the product of a bureaucratic "working group" and it was delivered in the dry prose of a government report on the legality of setting aside an executive order on train travel requirements. But this "working group," consisting of lawyers from throughout the executive branch, was tasked with something a little bit different than your average government project. Its job was defining the legal limits of the president's authority to order people to be tortured.

They had meetings at which I'm sure they all believed very sincerely that they were doing important work on the War on Terror. I'm sure they worked long hours and diligently analyzed the law and offered their advice to the president and secretary of defense with nothing but the good of the country in their minds. And they produced a 50+ page paper from which, I understand, only one person --- the state department representative -- dissented.

And that report, this product of a bureaucratic "working group" of lawyers is so deeply depraved and contrary to American values that one wonders if at any time during the discussions if someone had stood up and said, "we're talking about TORTURE for God's sake!" they would have produced a report at all.

Perhaps they wouldn't have. But, more importantly, I seriously doubt that anyone stood up and said such a thing. After all, this was being dryly discussed in the op-ed pages of major newspapers and in the weekly magazines as if it were just another method of warfare --- like terrorism itself. I'm sure these fine bureaucrats and political appointees believed they were doing their duty.

[...]

I can't get past the fact that this is the product of a "working group" of lawyers, all of them highly educated, presumably intelligent, decent hardworking Americans who love their country. And, not one of them resigned their post rather than participate in creating a legal justification for torture. And, it was not just an abstraction to them; they went into great detail about the precise amount of pain that was to be allowed. There are long passages in which the meaning of "severe pain" is discussed, the effect of long term mental damage is assessed and where the justification of the infliction of long term damage is defined as a matter of intent rather than result.

[...]

What was the process by which they came to these dry legalistic definition of when, how and where on is allowed to inflict terrible pain as long as it doesn't reach the level of intensity that would accompany serious physical injury or organ failure? Did they discuss this around a conference table over a take-out Chinese dinner? Did they all nod their heads and take notes and write memos and have conference calls and send e-mails on the subject of what exactly the definition of "severe pain" is? Did they take their kid to school on the way to the meeting in which they finalized a report that says the president of the United States has the unlimited authority to order the torture of anyone he wants? Did they tell jokes on the way out?

These nice people with nice backrounds and nice jobs spent weeks contemplating how to legally torture human beings. Then they went home and watched television and ate dinner and went to bed and made love to their wife or husband and got up and did it again because it was their job and their duty to find ways to legally justify it[.]

[...]

These people who set about legalizing inhumane behavior on behalf of a president on whom they confer absolute power to order it at will are as shallow and evil as the cliché spouting president who demanded it. The slippery slope to totalitarianism started in a conference room where coffee and donuts and microsoft power point presentations on torture and pain were on the agenda one morning.