Bush's constitutional record

Recently the Cato Institute released a study which details Bush's not so good track record on upholding the constitution. Here's a bullet point version of the study...

Summary

The Bush administration has endorsed:

• a federal government empowered to regulate core political speech—and restrict it greatly when it counts the most: in the days before a federal election
• a president who can launch wars at will, and who cannot be restrained from ordering the commission of war crimes, should he choose to do so
• a president who can lock up American citizens at will and forever—without any meaningful oversight by the judiciary
• a federal government with the power to supervise all areas of American life, from education to marriage and through the end of life

First Amendment

Congress shall make no law . . . abridging the freedom of speech

• McCain-Feingold campaign finance bill: In the 2000 campaign, Bush declared this bill unconstitutional and promised to veto it. In 2002, he signed the bill, but used his usual signing-statement-line-item-veto trick to skirt the constitutionality problems.
• Non-violent protesters are relegated to remote free speech zones, but people who support the president are allowed to be front and center.

Executive Power

• General view: In time of war, the president is the law, and no treaty, no statute, no coordinate branch of the U.S. government can stand in the president’s way when, by his lights, he is acting to preserve national security.
• Torture: the Bush administration lawyers argued that Congress is powerless to interfere with the president’s authority to order torture of enemy prisoners if the president decides such action will be useful in prosecuting the war on terror. Bush believes that prohibiting torture infringes upon his constitutional power as commander-in-chief. He also used the signing-statement-line-item-veto trick with the McCain Amendment to the Defense Appropriations bill.
• Decision to wage war: The President has the constitutional authority to introduce the U.S. Armed Forces into hostilities when appropriate, with or without specific congressional authorization.

Fourth Ammendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

• Arrest warrants: Bush has asserted the authority to exclude the judiciary from the warrant application process by issuing his own arrest warrants
• Probable cause: The administration through the FBI has imprisoned many on suspicion (detainees) while the police looked for evidence to confirm their suspicion. This is not how it is supposed to work. The Supreme Court has noted time and again that a person cannot be hauled out of his home on the mere suspicion of police agents
• Material witness misuse: The material witness law is designed to secure a potential witness's testimony so that it will not be lost in situations where the individual witness seems likely to ignore a summons and flee the jurisdiction. Immediately after 9/11 agents used this law to incarcerate suspects.
• Seizing property: Section 215 of the Patriot Act created a new subpoena-like power that enables the police to seize private property. The section calls for a rubber-stamp judiciary review as long as as the FBI certifies that it is engaged in a terrorism investigation. (in other words, no judicial review)
• Eavesdropping expansion: President Bush claims that he can bypass the warrant application process and surveil the e-mail and phone conversations of Americans because he is the commander-in-chief of the U.S. military. He authorized the NSA to eavesdrop on Americans without the court-approved warrants that are ordinarily required for domestic spying.

Habeas Corpus

A venerable legal procedure that allows a prisoner to get a hearing before an impartial judge. If the jailor is able to supply a valid basis for the arrest and imprisonment at the hearing, the judge will simply order the prisoner to be returned to jail. But if the judge discovers that the imprisonment is illegal, he has the power to set the prisoner free. For that reason, the Founders routinely referred to this legal device as the "Great Writ" because it was considered one of the great safeguards of individual liberty

President Bush claims that he can arrest any person in the world and hold that person incommunicado indefinitely. According to the legal papers that Bush’s attorneys have filed in the courts, so long as he has issued an enemy combatant order to his secretary of defense instead of the attorney general, it does not matter if the prisoner is a foreign national or an American citizen. And it does not matter if the prisoner was apprehended in Afghanistan or in some sleepy town in the American heartland. Under this sweeping theory of executive power, the liberty of every American rests on nothing more than the grace of the White House.

Trial by jury/Sixth Ammendment

The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.

The president's November 2001 Military Order proclaimed his authority to decide who can be tried before a jury and who can be tried before a military commission. President Bush and his lawyers say that terrorists are "enemy combatants" and that enemy combatants are not entitled to the protections of the Bill of Rights. The problem is the determination of enemy combatant status is achieved through evidence and a trial, not just by the opinion of one person.

Disclaimer

Most of the document above is taken verbatim from the study. I have merely condensed and highlighted what I consider the most relevant passages. I am definitely not claiming this as my work. The original article was a little wordy for my taste and I wanted to break it down into more palatable/memorable chunks.