Rush to Judgment

George W. Bush, The War on Terror, and His Critics

Stephen F. Knott

• Publisher: University Press of Kansas
• Year: 2014
• Print ISBN: 9780700620227, 9780700618316
• eBook ISBN: 9780700620630
• Topic: History
• Subtopic: North American History
• Index: History

George W. Bush has been branded the worst president in history and forced to endure accusations that he abused his power while presiding over a “lawless” administration. Stephen Knott, however, contends that Bush has been treated unfairly, especially by presidential historians and the media. He argues that from the beginning scholars abandoned any pretense at objectivity in their critiques and seemed unwilling to place Bush’s actions into a broader historical context.

In this provocative book, Knott offers a measured critique of the professoriate for its misuse of scholarship for partisan political purposes, a defense of the Hamiltonian perspective on the extent and use of executive power, and a rehabilitation of Bush’s reputation from a national security viewpoint. He argues that Bush’s conduct as chief executive was rooted in a tradition extending as far back as George Washington—not an “imperial presidency” but rather an activist one that energetically executed its constitutional prerogatives.

Given that one of the main indictments of Bush focuses on his alleged abuse of presidential war power, Knott takes on academic critics like Sean Wilentz and Arthur Schlesinger Jr. and journalists like Charlie Savage to argue instead that Bush conducted the War on Terror in a manner faithful to the Framers’ intent—that in situations involving national security he rightly assumed powers that neither Congress nor the courts can properly restrain. Knott further challenges Bush’s detractors for having applied a relatively recent, revisionist understanding of the Constitution in arguing that Bush’s actions were out of bounds.

Ultimately, Knott makes a worthy case that, while Bush was not necessarily a great president, his national security policies were in keeping with the practices of America’s most revered presidents and, for that reason alone, he deserves a second look by those who have condemned him to the ash heap of history. All readers interested in the presidency and in American history writ large will find Rush to Judgment a deftly argued, perhaps deeply unsettling, yet balanced account of the Bush presidency—and a clarion call for a reexamination of how scholars determine presidential greatness and failure.

1

Bush’s Role Models

The fallacy that George W. Bush was the worst president in history, especially the notion that his administration represented an unparalleled threat to the Constitution, is not true, as expansive notions of presidential power, particularly in the national security arena, are as old as the nation itself. Arguably, the Constitution itself was an act of lawlessness, since the delegates who assembled in Philadelphia in 1787, operating under strict secrecy, changed the rules by which the existing Articles of Confederation could be amended; in many cases they far exceeded their instructions by discarding instead of reforming the Articles. Madison noted that the delegates:

were neither authorized by their commission, nor justified by circumstances[,] in proposing a Constitution for their country … [and] if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America.¹

Along the same lines, Alexander Hamilton, writing as Publius in The Federalist Papers, spoke of the need to avoid “fettering the government with restrictions, that cannot be observed” when necessity intervenes. ² In light of this, the authors of The Federalist Papers argued for an “energetic executive” characterized by “decision, activity, secrecy, and dispatch.”³

The founding fathers’ penchant for secrecy was incorporated in one of the first legislative acts adopted by the new government at the request of President George Washington. The “contingency” or “secret service” fund proposed by Washington in his First Annual Message to Congress in 1790 allowed the president to spend money for services of a sensitive nature without revealing to Congress how those monies were spent. It was used for a variety of purposes throughout the nineteenth century. President Thomas Jefferson, for example, bribed Native American chiefs to relinquish territory and urged the Madison administration to employ arsonists to attack Great Britain during the War of 1812. While serving as Jefferson’s secretary of state, James Madison procured a prostitute for a foreign emissary as a means of facilitating, as he put it, “foreign intercourse.” After his election to the presidency, Madison overthrew a tottering Spanish colonial regime in West Florida using this fund, attempted to do the same in East Florida, and then dissembled about his actions to Congress and the Spanish government.⁴

Andrew Jackson attempted to acquire Texas by bribing Mexican officials, while President James K. Polk covertly arranged for the return of a Mexican general (who was secretly on the U.S. payroll) to his homeland during the war with Mexico. All of these clandestine operations were supported by this secret service fund, and the president did not report the details to Congress. Some, like John Tyler and Abraham Lincoln (who will be dealt with later), conducted covert operations against their own citizens. Under Tyler, the U.S. government ran a covert operation under the direction of Secretary of State Daniel Webster against the citizens of Maine in order to lessen the threat of war with Great Britain over a boundary dispute with Canada. Interestingly, Webster also enlisted the aid of the British government, which provided some of its own secret service funds to undermine prowar sentiment in Maine.⁵ This may be the first and only time in the history of the republic that the U.S. government accepted foreign funds to conduct a covert operation against its own citizens.

Thomas Jefferson, who is frequently cited as a champion of openness and deference to the people, noted that “all nations have found it necessary, that for the advantageous conduct of their affairs, some of these [executive] proceedings, at least, should remain known to the executive functionary only.” Echoing John Yoo (one of the legal architects of Bush’s War on Terror) and proponents of the unitary executive, Jefferson argued that the Senate “is not supposed by the Constitution to be acquainted with the concerns of the executive department.”⁶ This view of presidential power was widely shared by most of the key founders. Jefferson’s conception of executive power would have undoubtedly inflamed the editorial writers at the New York Times. He wrote: “On great occasions every good officer must be ready to risk himself in going beyond the strict line of the law.” He added that there were “extreme cases where the laws become inadequate to their own preservation, and where the universal recourse is a dictator, or martial law.”⁷ For Jefferson, “a strict observance” of the rule of law was “one of the high duties of a good citizen,” but it was not the highest duty. “The laws of necessity, of self preservation, of saving our country when in danger,” he wrote, “are of a higher obligation.” And, he noted, in a lesson lost in our increasing legalistic, process-obsessed nation, “to lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”⁸

George W. Bush was no Thomas Jefferson. And yet this truism applies for all the reasons one might expect, as well as for reasons frequently omitted from polite conversation. For Jefferson, as historian Leonard Levy observed, “at one time or another supported loyalty oaths; countenanced internment camps for political suspects; drafted a bill of attainder; urged prosecutions for seditious libel; trampled on the fourth amendment; condoned military despotism [a reference to the aforementioned quote]; used the Army to enforce laws in time of peace; censored reading; [and] chose professors for their political opinions.”

President Jefferson’s response to the major national security crisis of his second term, the embargo of 1807 to 1809, was, according to two other historians, “more draconian than anything attempted by British authorities throughout the years leading up to the American Revolution.”⁹ Jefferson wanted to “crush” those American citizens who dared violate his embargo by running contraband across the border with Canada.¹⁰

Jefferson was not alone in believing in the need for discretionary executive authority on “great occasions” or in “extreme cases.” This power has been understood by America’s greatest presidents to be part of their constitutional portfolio, although in Jefferson’s case he believed it to be an extra-constitutional power checked, and legitimated, only by the will of the people.¹¹ Without question this power can be abused, but, to borrow a phrase, the power to do good is always the power to do evil. American presidents of the past wielded power, oftentimes in situations far less threatening than post-9/11 America, in such a way that illuminates the fact that George W. Bush’s “abuses of power” were remarkably tame in comparison.

Andrew Jackson: Lawlessness Personified

Oddly, progressive historians, including Arthur Schlesinger Jr., H. W. Brands, and Sean Wilentz, see Andrew Jackson as something of their presidential lodestar, for Jackson transformed the presidency from an institution designed to check popular sentiment into a “tribune” of the people. The nation’s first populist president delighted in rattling the conservatives of his day with claims that the “majority is to govern.”¹² In light of his affinity for Jackson, Sean Wilentz took particular offense at comparisons made between George W. Bush and Old Hickory, whom he considered the champion of, as Jackson liked to put it, “the people, the great laboring and producing classes” where only “true virtue” resides.¹³ Wilentz noted in his Rolling Stone essay that:

Karl Rove has sometimes likened Bush to the imposing, no-nonsense President Andrew Jackson. Yet Jackson took measures to prevent those he called “the rich and powerful” from bending “the acts of government to their selfish purposes.” Jackson also gained eternal renown by saving New Orleans from British invasion against terrible odds. Generations of Americans sang of Jackson’s famous victory. In 1959, Johnny Horton’s version of “The Battle of New Orleans” won the Grammy for best country & western performance. If anyone sings about George W. Bush and New Orleans, it will be a blues number.¹⁴

There are, in fact, legitimate comparisons to be made between George W. Bush and Andrew Jackson. Both had a propensity to murder the English language, and both practiced a form of populist politics that drove the respective opinion leaders of their day to distraction. Both were despised by Ivy League professors of their time, though both received honorary degrees from Ivy League schools. (The semiliterate Jackson was reluctantly awarded an honorary degree from Harvard, and the rhetorically challenged Bush was begrudgingly awarded one from his alma mater, Yale.) Their attitudes toward America’s security interests were similar as well, revealing a propensity for “going it alone” if they determined the national interest required such a step. As historian Walter Russell Mead has noted:

Jackson took the U.S. Army across the international frontier into Spanish territory without any permission or any U.N. resolutions. He went in there, arrested the two Brits [Englishmen suspected of selling arms to the British], brought them back to the United States, tried them before a military tribunal and hanged them. And this did cause outrage in Europe. They said “These people have no respect for international law.” But it made Jackson so popular in the U.S. that his election to the presidency was just a matter of time after 1818. [The idea is]: “Don’t bother with people abroad, unless they bother you. But if they attack you, then do everything you can.”¹⁵

This Jacksonian strain of American foreign policy, which Bush personified, at least during his first term, had a strong sense of right and wrong, a sense of “us” against “them,” and retained vestiges of the old southern code of honor. It is a motif that has had an impact on the way Jacksonians fight wars: “Honorable” foes are treated one way; “dishonorable” ones are met with an unmitigated fury where the rules frequently don’t apply. Thus, the foreign policies of Jacksonians (at least of living Jacksonians [dead Jacksonians are occasionally venerated]) are seen by the American professoriate and by many foreign observers as “an unhealthy mix of ignorance, isolationism, and irresponsibly trigger-happy cowboy diplomacy.”¹⁶

As president, Jackson dispatched an agent to Mexico to acquire the territory of Texas for the United States, instructing him to bribe Mexican officials to achieve this goal. As Old Hickory observed in his characteristically crude manner, “I scarcely ever knew a Spaniard who was not the slave of avarice, and it is not improbable that this weakness may be worth a great deal to us, in this case.” Jackson spent considerable energy trying to maintain plausible deniability throughout his bribery operation, and he reprimanded his hired agent for being too frank in some of his written comments to his superiors back in Washington.¹⁷

For all of Sean Wilentz’s admiration for Jackson, it should also be noted that Old Hickory’s record on civil rights and civil liberties was far worse than George W. Bush’s. In one instance, General Jackson ordered the arrest of a civilian legislator who had the audacity to write an editorial questioning Jackson’s decision to maintain martial law in New Orleans at the end of the War of 1812. When a federal district judge issued a writ of habeas corpus ordering Jackson to turn the man over to the civilian courts, Jackson arrested the judge and jailed him with the offending journalist in a military stockade. The military tribunal acquitted the legislator, but Jackson refused to release him. He had his soldiers march the judge out of the city and warned him not to return until the British had completely evacuated southern Louisiana. As Jackson’s foremost contemporary biographer, Robert Remini, noted, “the extent of Old Hickory’s lunatic militarism had now reached comic proportions.” ¹⁸ President Jackson also ordered the censoring of the mail in 1835 after it was discovered that northern abolitionists were sending antislavery literature to their fellow citizens in the South. Suspicious-looking letters were to be confiscated, and unless the addressee demanded the letter, it would not be delivered. Those who demanded their mail, Jackson ordered, were to have their “names [taken] down, and have them exposed thru the Publick journals as subscribers to their wicked plan of exciting the negroes to insurrection and to massacre.” All “moral and good” southerners, Jackson argued, would shun the violators.¹⁹

Jackson was arguably our nation’s most lawless president, and yet in addition to gracing the $20 bill (an odd tribute to an opponent of a national bank and paper money) he symbolizes for progressives the triumph of the common man over wealth and privilege. This persists only because of historians like Arthur Schlesinger, who, as historian Daniel Walker Howe has noted,

never even mentioned Indian Removal [in his Pulitzer Prize–winning The Age of Jackson], the number one item on the agenda of Jackson’s first term in office. In a single allusion to the Supreme Court decision in Worcester v. Georgia (1832) that vindicated the Cherokee Nation’s treaty right to refuse removal — a decision that President Jackson famously felt free to ignore — Schlesinger simply calls it “the case of the Georgia missionaries.” An unwary reader would have no inkling of all that the case involved. Indian Removal was by no means overlooked by historians at this time; Marquis James had recently treated the subject. Similarly, Schlesinger also ignored Jackson’s personal slaveholding, public support for slavery, and attempts to ban criticism of slavery from circulating through the mails. Schlesinger preferred to avoid any topic that might cast doubt on his characterization of Jackson as an appropriate hero for New Deal liberals. His work on Jackson became the first of a long series of volumes that established him as the more or less official historian of the Democratic Party.²⁰

Sean Wilentz picked up the torch from Arthur Schlesinger. According to Howe:

Wilentz re-states Schlesinger’s thesis. He fully acknowledges changing liberal priorities and Jackson’s ambiguous status in current American opinion, both popular and scholarly. Nevertheless he is determined to restore Jackson’s image as a liberal hero. “Jackson aligned himself, in his own mind and those of his supporters, with the forces of movement rather than of order, on the side of egalitarianism and against privilege,” writes Wilentz. Well, maybe in his own mind and those of his supporters, but not in the minds of the abolitionists whose mailings Jackson ordered his Post Office to censor, nor in the minds of stout Yankee commercial farmers or of enterprising traders who wanted the sound currency provided by the national bank. Not in the minds of the Native Americans and their Evangelical white allies, nor in the minds of the free black men who, wherever they were permitted the suffrage, voted solidly against Jackson.²¹

Jackson the symbol has replaced Jackson the man, to the point where the man is completely distorted in the American mind.²² This is all due to the attempt to link the policies of modern-day progressives to the early history of the nation and thereby validate their agenda. They are, supposedly, as American as “Old Hickory.” It is a symptom of the ideological perversion of the historical profession that Andrew Jackson, the murderer of Native Americans who chafed at the idea of the “rule of law,” should be exalted as a great president, while George W. Bush is labeled one of our “worst” — a man who “threaten[ed] to overturn the Framers’ healthy tension in favor of presidential absolutism.”²³

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Table of contents

• Front Cover
• Title Page
• Copyright Page
• Dedication Page
• Contents
• Preface and Acknowledgments
• Introduction: The Worst President in History?
• 1 Bush’s Role Models
• 2 Bush’s Inheritance: An Imperiled Presidency
• 3 John Paul Stevens, Commander in Chief
• 4 Slouching Toward 9/11
• 5 War President
• 6 A Bold but Excessively Loyal Commander in Chief
• 7 Bush’s “Diabolical” Signing Statements
• Conclusion: An Unfair Indictment
• Notes
• Index
• Photo Gallery
• Back Cover