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Madison's NightmareHow Executive Power Threatens American Democracy$
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Peter M. Shane

Print publication date: 2009

Print ISBN-13: 9780226749396

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226749426.001.0001

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Presidentialism, National Security, and the Breakdown of Government Lawyering

Presidentialism, National Security, and the Breakdown of Government Lawyering

(p.82) 4 Presidentialism, National Security, and the Breakdown of Government Lawyering
Madison's Nightmare
University of Chicago Press

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

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