Preparing (long) edits to articles here, so I won't have to disrupt the pages.

Existentialism emphasizes human capability. There is no greater power interfering with life and thus it is up to us to make things happen. Sometimes considered a negative and depressing world view, your optimism towards human accomplishment is immense. Mankind is condemned to be free and must accept the responsibility.

Existentialist

88%

Idealist

81%

Materialist

80%

Postmodernist

75%

Modernist

69%

Cultural Creative

56%

Romanticist

50%

Fundamentalist

25%

Welcome

**Ahmad Fadeel al-Nazal al-Khalayleh**
(Arabic: أحمد فضيل النزال الخلايله)
Ahmad Fadeel al-Nazal al-Khalayleh ; (Arabic: أحمد فضيل النزال الخلايله)
	Zarqawi killed in action
Allegiance	Islamism
Years of service	1989–2006
Unit	Jama'at al-Tawhid wal-Jihad; Al-Qaeda in Iraq
Battles / wars	Iraqi insurgency

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John Yoo

Zarqawi PSYOP program

The Zarqawi PSYOP program refers to a US Psychological operations program, or propaganda campaign, exaggerating the importance of Al Zarqawi in Al Qaeda and the Iraq insurgency.^[1] ^[2]^[3]

The program was allegedly primarily aimed at, but not limited to, the "Iraqi and Arab media" along with the "U.S. Home Audience," which was part of a "broader propaganda campaign."^[1]^[4]^[5]^[6]^[7]^[8]^[9]^{[unreliable source?]}^[10]^[11]^[12]

One of the presented goals was to alienate local citizens from him by portraying him as a foreigner and key actor in the insurgency.^[4] However, Sidney Blumenthal reported that, according to a "military source," this campaign ultimately revolved around "domestic political reasons."^[5] While Jordanian political analyst Labib Kamhawi said

The bottom line is that America needs to create a serious public enemy who is not Iraqi so they can claim Iraqis aren't responsible for the resistance.^[13]

Writing for UPI, Jennifer Schultz reported that terrorism expert Loretta Napoleoni stated that the US created a myth which resulted in those fabrications becoming a self-fulfilling prophecy.^[14]^[15]^[16] While The Nation cited "a spy" that made an identical comment.^[17] An article in The Independent concurred by commenting:

... according to British defence sources, the US campaign on Zarqawi eventually succeeded in creating its own reality. By elevating him from his position as one fighter among a mass of conflicting groups, the US campaign to "villainise Zarqawi" glamorised him with its enemy audience, making it easier for him to raise funds, to attract "unsponsored" foreign fighters, to make alliances with Sunni Iraqis and to score huge impact with his own media manoeuvres..^[18]

Program

In October, 2004, The Telegraph and The Age reported that, according to a U.S. military intelligence agent, the U.S. was paying $10,000 to individuals in order to pass for fact the fiction and suppositions regarding Zarqawi.^[19]^[20]^[21] The Boston Globe reported that "terrorist activity in Iraq and Jordan" by "a disparate array of terror groups and individual operatives" was often said to be caused by the "Zarqawi network."^[13]

The Washington Post reported on April 10, 2006, that the role of Zarqawi was magnified by the Pentagon in a psychological operations campaign started in 2004. In the words of the Washington Post:

For the past two years, U.S. military leaders have been using Iraqi media and other outlets in Baghdad to publicize Zarqawi's role in the insurgency. The documents explicitly list the "U.S. Home Audience" as one of the targets of a broader propaganda campaign.^[4]

The article goes on to explain that a slide created for a briefing by Army Gen. George W. Casey Jr,

describes the "home audience" as one of six major targets of the American side of the war.

Nevertheless, the slide did not specifically assert the program targeted U.S. citizens. Although other parts of the briefing did suggest it was directed at the U.S. media to alter the view of the war.

Another slide^[3] in the briefing noted a "selective leak" to reporter Dexter Filkins, about a letter boasting of suicide attacks in Iraq and allegedly written by Zarqawi. He used that information for an article^[22] in the New York Times.^[7]^[12]^[18] Contacted by the Post Filkins commented he was skeptical at the time, and still is, about the document's authenticity.^[4]^[7] The Independent alleged in February 2008:

There is very good reason to believe that that letter was a fake – and a significant one because there is equally good reason to believe that it was one product among many from a new machinery of propaganda which has been created by the United States and its allies since the terrorist attacks of September 2001.^[18]

According to Sidney Blumenthal, in an article for Salon, a military source told him that, for ultimately "domestic political reasons," Donald Rumsfeld and the White House resisted degrading the dramatically inflated image of Zarqawi.^[5]

Responding to the in the Post reported psychological operations aimed at Americans, Army Col. James A. Treadwell, commander of the U.S. military psyops unit in Iraq, but no longer present as the program was started, said that the US doesn't do that. Another officer commented in the Post that, although all material provided was in Arabic, the campaign probably influenced the view of the American press raising his profile. The Post continues that, according to an officer familiar with the case, this program was not related to another program which was linked to the Lincoln Group.^[4]^[23]

By focusing on his terrorist activities and status as a foreigner the US tried to inflame Iraqi citizens against him.^[4]^[12]^[6] Brig. Gen. Mark Kimmitt, the senior commander in charge, remarked, according to the Washington Post:

"The Zarqawi PSYOP program is the most successful information campaign to date."^[4]^[7]^[12]

Regarding the influence of this program on Al Qaeda Jennifer Schultz reports the comments by terrorism expert Loretta Napoleoni:

The myth of al-Zarqawi, Napoleoni believes, helped usher in al-Qaida's "transformation from a small elitist vanguard to a mass movement."^[15]

Rise to power

According to articles in The Independent, Counterpunch, Newsweek, and Asia Times Online several incidents turned Abu Musab al-Zarqawi from an unknown and unimportant local Jordanian terrorist into a well-known voice of Al Qaeda in Iraq.^[10]^[17]^[18]^[24] The Asia Times contends that in February 2003 he was practically unknown outside Jordan.^[24]^[25] Loretta Napoleoni, a terrorism expert, and an article in Spiked also commented that prior to the invasion of Iraq his scope was limited to corrupt Arab regimes, most notably Jordan.^[14]^[21] The Independent, Newsweek and the Asia Times continue by commenting that initially he was largely unconnected to Saddam Hussein, and not part of bin Laden's group. Eric Margolis, terrorism expert, concurs that he never was part of al Qaeda prior to the Iraq war.^[26] The Christian Science Monitor reported that one of his operatives stated during interrogation that Zarqawi "is against Al Qaeda."^[27]

President Bush first referred to him on October 7, 2002, in a nationally televised speech, by observing:

Some al-Q'aida leaders who fled Afghanistan, went to Iraq. These include one very senior al-Q'aida leader who received medical treatment in Baghdad this year, and who has been associated with planning for chemical and biological attacks.^[17]^[18]

Following the allegation he was a link between Saddam Hussein and al Qaeda (used as casus belli^[5]^[24]^[25]^[21]^[28]^[29]), by Colin Powell before the UN Security Council in 2003,^[17]^[18] he became the embodiment of resistance against the US in the Muslim world. Afer invading Iraq documents were found that showed Hussein's security forces had in fact attempted to apprehend him, contradicting Powell's allegations.^[28] Also the invasion of Iraq by the Bush administration became another boost for his popularity, which Michael Hirsch in Newsweek describes as:

the Iraq invasion gave Zarqawi a chance to blossom on his own as a jihadi.^[24]

After the capture of Saddam Hussein the Bush administration accused him of being behind the continuing mishaps in Iraq, or, as Patrick Cockburn commented in an editorial for Counterpunch Newsletter:

"No sooner had Saddam Hussein been captured than the US spokesmen began to mention al-Zarqawi's name in every sentence."^[10]^[28]

Articles in the Columbia Journalism Review, the Washington Post, Rolling Stone, Newsweek and Counterpunch Newsletter suggest his increased notoriety, as illustrated above, was the result of an orchestrated effort involving psychological operations.^[4]^[12]^[24]^[10]^[30]

The Washington post cites Col. Derek Harvey who said at a meeting by the Army in Fort Leavenworth:

"Our own focus on Zarqawi has enlarged his caricature, if you will - made him more important than he really is, in some ways."^[4]^[12]

Jane Arraf, CNN’s former Baghdad bureau chief, observed that there are discrepancies between what journalist encounter in Iraq “and a lot of the comments we see coming out of the administration and the Pentagon.” Commenting on this Daniel Schulman for Columbia Journalism Review said:

... it has become, in part, a contest over the framing of reality, and thus a hall of mirrors for the press.^[30]

In the wake of his assasination, which had erroneously been reported several times before,^[31]^[32] the U.S. military produced a video showing him to be the opposite of what the media previously advocated him to be.

US psychological operations

The US military defines psychological operations, or PSYOP, as:

planned operations to convey selected information and indicators to foreign audiences to influence the emotions, motives, objective reasoning, and ultimately the behavior of foreign governments, organizations, groups, and individuals.^[33]

The Smith-Mundt Act, adopted in 1948, explicitly forbids information and psychological operations aimed at the US public.^[34]^[35]^[30] Nevertheless, the current easy access to news and information from around the globe, makes it difficult to guarantee PSYOP programs do not reach the US public. Or, in the words of Army Col. James A. Treadwell, who commanded the U.S. military psyops unit in Iraq in 2003, in the Washington Post:

There's always going to be a certain amount of bleed-over with the global information environment.^[4]

Agence France Presse reported on U.S. propaganda campaigns that:

The Pentagon acknowledged in a newly declassified document that the US public is increasingly exposed to propaganda disseminated overseas in psychological operations. ^[36]

US Defense Secretary Donald Rumsfeld has approved that document, which is called "Information Operations Roadmap." ^[30]^[36] The document acknowledges the Smith-Mundt Act, but fails to offer any way of limiting the effect PSYOP programs have on domestic audiences.^[34]^[35]^[37]

Several incidents in 2003 were documented by Sam Gardiner, a sixty-four-year-old retired Air Force colonel, which he saw as information-warfare campaigns that were intended for "foreign populations and the American public." Truth from These Podia,^[38] as the treatise was called, reported that the way the Iraq war was fought resembled a political campaign, stressing the message instead of the truth.^[30] The International Crisis Group reported that Zarqawi’s group, and three other groups of in Iraq, were disseminating propaganda in a sophisticated manner.^[30]

Although the Information Operations Roadmap does not specifically mention the Zarqawi PSYOP program it does show the general dilemma psychological operations pose regarding the effect they potentially have on the US public.^[36] The Asheville Global Report does comment on Zarqawi and contends that the

"military's propaganda program apparently spilled over into the US media."^[28]

In April 2008 The New York Times revealed that the "military analysts" used by news organisations in the US to comment on the War on Terror had, and continue to have, ties to the Pentagon. This conflict of interest was, and still is not, disclosed to the general public who are under the impression these commentators are independently t.

Iraq resolution

(Despite this statement and subsequent comments by the Bush administration, weapon inspectors were given access to the alleged weapon factories at the time. Continuing the inspections was made impossible by the U.S. led invasion of Iraq which forced the U.N. inspectors out while ignoring their requests for more time.)^[39]

Iraq's alleged weapons of mass destruction, and programs to develop such weapons, posed a "threat to the national security of the United States and international peace and security in the Persian Gulf region."

(A statement that was not supported by the available evidence at the time.)^[40]^[41]

Iraq's "brutal repression of its civilian population."

(This is not a valid casus belli with the laws of war and prohibition of a war of aggression in mind.)^[42]^[43]

Iraq's "capability and willingness to use weapons of mass destruction against other nations and its own people"

(The available evidence at the time showed there probably were no WMD's in Iraq.)^[40]^[41]

Iraq's hostility towards the United States as demonstrated by the 1993 assassination attempt of former President George H. W. Bush, and firing on coalition aircraft enforcing the no-fly zones following the 1991 Gulf War. -

-(Legal scholars contend this is not a valid casus belli with the laws of war and prohibition of a war of aggression in mind.)^[43]

Members of al-Qaeda were "known to be in Iraq."

(Those alleged contacts were in areas outside of Saddam Hussein's control and therefor cannot be evidence of them meeting him, and as such this is not a valid casus belli under the laws of war and with the definition of war of aggression in mind.)'^[40]^[44]^[43]

Iraq's "continu[ing] to aid and harbor other international terrorist organizations," including anti-United States terrorist organizations.

(A loose interpretation of the available evidence to validate the continuing suggestion Iraq was involved in 9/11, an allegation for which no evidence exists.)^[40]^[44]^[45]

The efforts by the Congress and the President to fight the 9/11 terrorists and those who aided or harbored them.

(The available evidence showed no "working relationship" between Iraq and the people behind the September 11, 2001 attacks)^[40]^[44]

The authorization by the Constitution and the Congress for the President to fight anti-United States terrorism
Citing the Iraq Liberation Act of 1998, the resolution reiterated that it should be the policy of the United States to remove the Saddam Hussein regime and promote a democratic replacement.

(Under international law, this point is not a valid casus belli, and as such attacking Iraq would constitute a war of aggression.)^[43]

The Resolution required President Bush's diplomatic efforts at the UN Security Council to "obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion, and noncompliance and promptly and strictly complies with all relevant Security Council resolutions." It authorized the United States to use military force to "defend the national security of the United States against the continuing threat posed by Iraq; and enforce all relevant United Nations Security Council Resolutions regarding Iraq." UN members commented it is not up to one member state to interpret and enforce UN resolutions. Subsequently Kofi Anan remarked that these arguments do not constitute the legal requirements set forth in the laws of war prohibiting wars of aggression.

Criticism

Weapons of Mass Destruction and Al-Qaeda

The arguments put forward for the invasion of Iraq^[46] — such as the continued possession and development of weapons of previously used mass destruction and active links to al Qaeda — have been found to be false, according to all official reports.^[47]^[48] A report by the Defense Department in 2007 conclusively stated the claimed working relationship with Al Qaeda did not exist. Or, as the Washington Post described it:

"the intelligence community's prewar consensus [was] that the Iraqi government and al-Qaeda figures had only limited contacts, and ... that reports of deeper links were based on dubious or unconfirmed information."^[49]

The Bush administration advocated that this was due to failure by the intelligence community. However, it has become clear that, prior to the invasion, these arguments had already been widely disputed,^[50] which had purportedly been reported to the U.S. administration. An in-depth investigation into the nature of these discrepancies by the Senate Intelligence Committee has been frustrated. Or, as a New York Times editorial states:

Mr. Roberts (chairman of the Senate panel) tried to kill the investigation entirely, and after the Democrats forced him to proceed, he set rules that seem a lot like the recipe for a whitewash.^[51]

Sceptics argue that the administration knowingly distorted intelligence reports or ignored contrary information in constructing their case for the war.^[52]^[53] The Downing Street memo and the Bush-Blair memo are used to substantiate that allegation.^[54] Congressional Democrats sponsored both a request for documents and a resolution of inquiry.^[55] A report by the Washington Post on April 12 2006, corroborates that view. It states that the Bush administration advocated that two small trailers which had been found in Iraq were "biological laboratories," despite the fact that U.S. intelligence officials possessed evidence to the contrary at that time.

"The three-page field report and a 122-page final report published three weeks later were stamped "secret" and shelved. Meanwhile, for nearly a year, administration and intelligence officials continued to publicly assert that the trailers were weapons factories."^[56]

U.N. Charter

The UN Charter prohibits any war unless it is out of self-defense or when it is sanctioned by the UN security council. If these requirements are not met international law calls it a war of aggression. Because of Article VI of the U.S. Constitution, Senate-ratified treaties such as the U.N. Charter are "the supreme Law of the Land." John Conyers, Robert Parry and Marjorie Cohn– professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists – assert that the Iraq war was not a war in self-defense but a war of aggression contrary to the U.N. Charter (a crime against peace) and therefore a war crime.^[57] Also, Kofi Annan called the war in Iraq a violation of the UN Charter and therefore "illegal." A war of aggression refers to any war not initiated out of self-defence or sanctioned by the UN.^[58]

Unitary executive theory

In American political and legal discourse, the unitary executive theory is a theory or doctrine of Constitutional interpretation that holds it is unconstitutional for Congress to create "independent" agencies, authorities, or other entities that exercise executive, and sometimes quasi-legislative or quasi-judicial, powers, governed by officials the President may be authorized to nominate, perhaps with the advice and consent of Congress, but he is not authorized to remove or discipline. It stems from an interpretation of the separation of powers and of Article II of the U.S. Constitution, that only the President is vested with the power to execute the laws in the executive branch.

The theory

The theory relies on the Vesting Clause of Article II which states "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive theory use this language along with the Take Care Clause ("The President shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under the direct control of the President."^[2]

The theory argues for strict limits to the power of Congress to divest the President of control of the executive branch.

Proponents of the theory argue that the President possesses all of the executive power and can therefore control subordinate officers and agencies of the executive branch. This implies that the power of Congress to remove executive agencies or officers from Presidential control is limited. Thus, under the unitary executive theory, independent agencies and counsels are unconstitutional to the extent that they exercise discretionary executive power, not controlled by the President.^[3]

The judicial branch implications are that no part of the executive branch can sue another part because "the executive cannot sue himself." If the federal courts were to adjudicate disputes between executive agencies, it would violate the doctrine of separation of powers.

The theory has been associated with conservative legal thought and members of the Federalist Society, and originally came to prominence in regard to the independent counsel law (see Morrison v. Olson).

Legal expert Morton Rosenberg of the non-partisan Congressional Research Service contends that Alexander Hamilton believed that a unitary executive's power was "confined to commerce, banking, and monetary policy"[4].

The legal status of the unitary executive

U.S. courts have not explicitly ruled on the theory, though there are two published opinions that relate to the claims of the theory. Chief Justice Taft, writing for the majority in Myers v. United States derived an unlimited presidential removal power over executive department subordinates. This case was significantly narrowed by subsequent Supreme Court cases such as Humphrey's Executor, United States v. Nixon and Bowsher v. Synar. Justice Scalia in his solitary dissent in Morrison v. Olson argued for an unlimited presidential removal power of all persons exercising executive branch powers, which he argued included the independent counsel.

The Justice Department has used the unitary executive theory to decide that the Environmental Protection Agency may not bring a legal suit against the U.S. military, since there would be only one party in the suit: the president.

The power of the executive as defined by the Constitution must be weighed against specific grants of exclusive power the Constitution gives to Congress, such as to "make all Laws which shall be necessary and proper for carrying into Execution... all... Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof"; that the Constitution grants Congress the exclusive power "To make Rules for the Government and Regulation of the land and naval Forces"; that the Constitution specifically obligates the President to "take Care that the Laws be faithfully executed", where the "Laws" are defined as that which the Congress has the exclusive power to pass.^[5] ^[6] They have also indicated that in every single Supreme Court case involving a statutory restriction of the power of the President, the statute has been upheld, including several in which the statute was only held to imply the limitation on Presidential power, let alone explicitly limit it; ^[7] that the phrase "unitary executive" that was discussed in the Constitutional Convention referred merely to having a single individual fill the office of President, as proposed in the Virginia Plan, rather than have several executives or an executive council, as proposed in the New Jersey Plan and as promoted by Elbridge Gerry, Edmund Randolph, and George Mason ^[8] ^[9]; and that the Constitutional Convention debates show that the Founders' primary concern behind whether to have a single executive or an executive council was to choose the one that would ensure that the executive would be relatively weaker and more easily restrained by the legislature; that those who argued for a unitary executive advanced the argument because they considered that the best way to limit the executive’s power and keep it subordinate to the legislature, in opposition to arguments that a plural executive would support the executive’s independence; and the term "unitary executive" was thereby bound up with the intention of keeping executive power checked and restrained. ^[10]

For example, James Wilson emphasized the advantage of greater accountability with a single chief executive:

The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes... far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment. ^[11]

Under the theory, the President's appointed subordinates would merely be his instrumentalities, incapable of separate action. Opponents of the theory therefore question why Congress has to advise and consent to their appointment (under Article II) if those subordinates are merely extensions of the Presidential will (why should the President have to get the consent of others to appoint his "bodily parts"?). Other opponents of the theory question why the Framers chose to explicitly grant to the President the power to "require the opinions" of his subordinates under Article I, as if the unitary executive theory is true, then the subordinates would only be instrumentalities of the President's will, and thus be incapable of having any opinion cognizable by the Constitution and the law of the land. These inconsistencies may show that although the Framers may have supported a hierarchical executive under a single President, they did not intend for there to be a homogeneous "unitary executive".

Executive powers of U.S. administrations

The Jefferson administration

On his Inauguration Day in 1801, Thomas Jefferson selectively voided 25 of the 42 judicial commissions approved by the Senate, that were nominated by the previous Adams Administration. This resulted in the landmark Supreme Court opinion Marbury v. Madison.

The Jackson administration

In 1831 Andrew Jackson refused to recognize a decision by the United States Supreme Court that exempted the Cherokee nation from Georgia state law and recognized that they had a right to self-government. The Judicial branch was powerless to force Jackson to enforce their opinion.

The Lincoln administration

Habeas corpus was suspended on April 27, 1861 during the American Civil War by Abraham Lincoln in parts of midwestern states, including southern Indiana. He did so in response to demands by generals to set up military courts to rein in "copperheads" (those in the Union who supported the Confederate cause). However, he also wrote to Congress soon afterward asking them to retroactively pass a law authorizing his actions, implicitly recognizing that only it could legally suspend the writ of habeas corpus.

Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court in 1864. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. It was decided in the Supreme Court case Ex Parte Milligan that the suspension had been unconstitutional because civilian courts were still operating, and the Constitution (according to the Court) only provided for suspension of habeas corpus if these courts are actually forced closed.

Andrew Johnson Impeachment

President Andrew Johnson was impeached by the House of Representatives on the grounds that he had replaced a member of his cabinet, in contradiction to a law Congress had passed expressly to prevent him from doing so called the Tenure of Office Act. After impeachment, a trial was held in the US Senate in accordance with the US Constitution, but none of the articles of impeachment won the required vote and Andrew Johnson remained in office. This situation appears to be relevant to the Unitary Theory, since the outcome of the controversy was that Johnson was not removed from office by Congress for firing cabinet members in a manner that was contrary to the will of Congress.

The Theodore Roosevelt administration

Roosevelt believed that extended presidential powers allowed him to best serve his country with quick, vigorous decisions, although he also explicitly recognized his obligation as president to submit to the legislature. He wrote in his Autobiography:

I did not usurp power, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common well-being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition. (198)

The Franklin D. Roosevelt administration

Later President Franklin D. Roosevelt ordered the internment of 120,000 individuals of Japanese descent. However, his administration submitted to the authority of the judicial process in reviewing this action. The action was eventually allowed to stand because it was approved by the Supreme Court, although the Court and legal scholars since then have often criticized the correctness of that decision.

The Truman administration

President Harry Truman sought to take over the United States steel industry, in an attempt to prevent a labor dispute, during the Korean War with Executive Order 10340^[12].

Owners of the steel mills sued the Federal Government, claiming the Federal takeover of the steel mills was unlawful. The Supreme Court agreed, finding Truman's executive order seizing the steel mills to be contrary to statute and the Constitution, in the case of Youngstown Sheet & Tube Co. v. Sawyer, decided in 1952.

Justice Jackson wrote the most famous opinion in this case, delimiting three spheres of power in which the President and Congress could act. He found that the power of the President is at its apex when acting in accord with the express or implied will of Congress; the power of the President is lessened when acting without the express authorization of Congress; and the power of the President is at its lowest ebb, when acting contrary to the express or implicit will of Congress. He further found that the Congress had failed to authorize seizure of private industry during a national crisis, even though it was brought to their attention; therefore, any Presidential claim to be authorized to do so was highly questionable, as the President acted contrary to the implicit will of Congress.

The decision has had a broad impact, since it represented a check on the broadest claims of executive power at the time. It also represented the Court's assertion of its own role in arbitrating matters that it might previously have considered political, and therefore potentially unjusticiable; the Court entered into these matters further in Baker v. Carr and Powell v. McCormack.

The Court also applied the Frankfurter-Jackson approach to analyzing Congress' legislative authorization of Presidential action in invalidating efforts by the Nixon administration to plant wiretaps without prior judicial approval, while citing it more generally in support of its decision to permit litigation against the President to proceed in Clinton v. Jones.

The Nixon administration

In 1970, White House Aide Tom Charles Huston drafted a domestic intelligence strategy that included elements such as domestic burglary, illegal wiretaps, and the opening of mail of alleged domestic radicals. President Nixon originally ratified the "Huston Plan" despite its facial illegality, then withdrew his ratification under pressure from FBI director J. Edgar Hoover and Attorney General John Mitchell. During the later investigation of this plan by the Church Committee, Nixon justified his approval of the Huston Plan as follows:

"It is quite obvious that there are certain inherently governmental actions which if undertaken by the sovereign...are lawful but which if undertaken by private persons are not.... But it is naive to attempt to characterize activities a President might authorize as 'legal' or 'illegal' without reference to the circumstances under which he concludes that the activity is necessary."

(Answer of Richard M. Nixon to Senate Select Committee Interrogatory 34, 3/9/76, pp. 16-17, quoted in Church Committee Final Report Book 2) ^[13]

In 1971, Nixon tried to enjoin the publication of the Pentagon Papers by applying for an injunction in the courts and accepted the Supreme Court's decision permitting publication of the papers.

However, in response to the leak of the Pentagon Papers, Nixon then formed a special White House unit known as "the Plumbers". Officers of the administration of Richard M. Nixon, including at least John Mitchell and members of Nixon's campaign staff approved unlawful break-ins committed by the Plumbers. President Nixon then used his executive powers to impede the resulting investigation. The Church Committee investigated other executive misconduct, including wiretaps against those who opposed the Vietnam War. Ultimately, Nixon avoided impeachment proceedings by resigning. For more information, refer to the Watergate scandal.

In response to Operation Shamrock, Operation Minaret, and the transgressions by the Nixon administration, which all involved abuses by the NSA, the 1978 Foreign Intelligence Surveillance Act was adopted.^[14]

The Clinton Administration

Bill Clinton objected to provisions in a bill establishing a semi-autonomous National Nuclear Security Administration, which set out the reasons for removing the director. Clinton objected that such a measure would impinge on his presidential prerogatives (specifically the alleged Presidential powers to interpret and execute measures under the US Constitution, even contrary to the will of Congress, or in the absence of court order.)

The George W. Bush administration

The Bush administration has interpreted the theory more expansively than previous administrations. As for what specific constitutional limitations on the judicial power President George W. Bush may have in mind, the argument used by the President and his supporters is widely regarded as consistent with legal positions promulgated by John Yoo, particularly as recorded in several of his legal memoranda while working at the Department of Justice's Office of Legal Counsel under Bush. Yoo's positions include that the use of military force is, like presidential vetoes and pardons, an unreviewable matter. Yoo's opinions are widely seen by legal scholars as controversial and contrary to most scholars' understanding of the Constitution. Rejecting the applicability of the arguments previously stated in support of such views, many argue that these views seem to have little basis in either the text or the history of constitutional law and this is seen by many to lend further credence to the skepticism regarding the validity of the arguments; indeed, Glenn Greenwald argues that Mr. Yoo's arguments echo what could be called "An Ideology of Lawlessness"^[59]

The Yoo position is supported by David Addington, former counsel and current chief of staff to the Vice President, who advocates a new paradigm, involving extreme flexibility of Presidential power.^[60]

President Bush has applied the theory of the "unitary executive" in a wide range of substantive issues, often issuing signing statements detailing how the executive branch will construe legislation. President Bush issued at least 132 signing statements from 2001 to July of 2006, less than either Bill Clinton and George H.W. Bush.^[15]

Of the 132 signing statements by President Bush, 110 of them have addressed specific constitutional issues, typically regarding attempts by Congress to infringe upon Constitutional powers specifically delegated to the Executive Branch. For example, in his statement announcing his signing H.R. 1646, the Foreign Relations Authorization Act, Fiscal Year 2003, President Bush wrote:

The executive branch shall construe as advisory the provisions of the Act, including sections 408, 616, 621, 633, and 1343(b), that purport to direct or burden the conduct of negotiations by the executive branch with foreign governments, international organizations, or other entities abroad or which purport to direct executive branch officials to use the U.S. voice and vote in international organizations to achieve specified foreign policy objectives. Such provisions, if construed as mandatory rather than advisory, would impermissibly interfere with the President's constitutional authorities to conduct the Nation's foreign affairs, participate in international negotiations, and supervise the unitary executive branch.^[16]

In effect, Bush stated that when it comes to several areas of foreign policy, the provisions discussed in his signing statement are merely advisory. It is not unusual for a president to release such a signing statement when he has concern as to how a bill he is signing into law will be interpreted in later court cases. Indeed, it can be argued that he is stating ahead of time the position he will also later defend in court, and that this does not imply rejection of subsequent court decisions, but a pre-statement to the courts. Skeptics point out that he in effect uses them as line-item veto although the Supreme Court already held the line item veto as unconstitutional in Clinton v. City of New York.^[17] Another signing statement that has garnered controversy is the signing of the McCain Detainee Amendment, prohibiting cruel, inhumane and degrading treatment of detainees in U.S. custody. President Bush wrote in part:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.^[18]

Some analysts contend the President has, with that statement, reserved the right to waive the act.^[19] It might be interpreted as a position he is prepared to argue in court when such a subject might be adjudicated. The NSA warrantless domestic surveillance program is another example of the Bush administration's application of its interpretation of executive power, which has led to much criticism.^[20] For example former Vice President Al Gore stated the following:

A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution - our system of checks and balances - was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men."

An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution - an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."^[21]

Under the Bush administration, the United States Department of Justice has ruled that the Environmental Protection Agency may assess administrative penalties against federal agencies (e.g. the Department of Defense) pursuant to Congressional authorization, notwithstanding the unitary executive theory.^[22] Critics assert that, the position taken by adherents of the "unitary executive" theory, and advocated by John Yoo in particular, holds that a U.S. President in the exercise of his Constitutional war powers cannot be restrained by any law, national or international.^[23] Others note that the view Yoo advocates, closely resembles the Führerprinzip,^[24] and is similar to the one seen in police states.^[25] Still others point to Jefferson's warning that the Tenth Amendment was needed to keep the Federal branches from monopolizing adjudication of rights, a danger further specified today by alleged attempts by the legislative and especially judicial branches to claim such a monopoly in a way that overwhelms the legitimate prerogatives of the states and of the federal executive branch. Supporters contend that the constitutional war powers they assert are exactly the same war powers that Abraham Lincoln used to issue the Emancipation Proclamation in 1863 in the face of Copperheads, and that cases like Ex Parte Milligan should be distinguished from subsequent Supreme Court cases such as Ex Parte Quirin to which the administration refers as basis for the application of enemy combatant status.^[26] This position ignores the fact that in Milligan, the Supreme Court explicitly ruled that the Presidential claim of exceptional war powers was unconstitutional, whereas Quirin does not involve special war powers but merely discusses habeas corpus based on enemy combatant status. In addition to that, the validity of Quirin as a basis for denying prisoners in the War on Terrorism protection by the Geneva Conventions has been disputed.^[61]^[62]^[63] A report by the American Bar Association commenting on this case, states:

The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. In Quirin, “The question for decision is whether the detention of petitioners for trial by Military Commission ... is in conformity with the laws and Constitution of the United States. “ Quirin, 317 U.S. at 18. Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin,11 that right could hardly be denied to U. S. citizens and other persons lawfully present in the United States, especially when held without any charges at all.^[64]

Since the 1942 Quirin case, the US signed and ratified the 1949 Geneva Conventions, which are, therefore, considered to be a part of U.S. municipal law, in accordance with Article 6, paragraph 2, of the Constitution of the United States.^[65] The cases which are currently making their way through the U.S. judicial system should clarify the U.S. administration's domestic legal position and its international treaty obligations.^[66] Legal experts Scott Horton, David Abraham, Ahmad Chehab, Arthur Versluis suggested that the concept of the "unitary executive," as interpreted by the Bush administration, appears to be based upon Carl Schmitt's state of exception.^[67]^[68]

Application by the George W. Bush administration

In the War on Terrorism President George W. Bush has invoked his war powers to justify several controversial actions, such as the NSA electronic surveillance program, and enhanced interrogation techniques. The administration, on several occasions, has promoted a concept, referred to as the unitary executive theory, to argue that in his duty as Commander-in-Chief, the President, with his inherent powers, cannot be bound by any law or Congress. Advocates of this theory opine that since the primary task of the President, during a time of war, is protecting US citizens, anything hindering him in that capacity can be considered unconstitutional. This argument is widely regarded as consistent with legal positions promulgated by John Yoo, particularly as recorded in several of his legal memoranda while working at the Department of Justice's Office of Legal Counsel under Bush regarding enhanced interrogation techniques, the unlawful enemy combatant status and the NSA warrantless domestic surveillance program.^[69]

Yoo's positions include the view that the use of military force is, like presidential vetoes and pardons, an unreviewable matter.^[69] His opinions are considered controversial by legal scholars and contrary to their understanding of the Constitution.^[69] because the theory appears to hold that the President's war powers place him above any law.^[69]^[70]^[71]^[72]^[73]

President Bush has applied the theory of the "unitary executive" in a wide range of controversial issues, often issuing signing statements detailing how the executive branch will construe legislation.^[69] Skeptics point out that he in effect uses such signing statements as line-item veto,^[74] although the Supreme Court already held the line item veto as unconstitutional in "Clinton v. City of New York".^[74]

In the NSA warrantless surveillance controversy this theory was used to suggest the President was not required to abide by the Foreign Intelligence Surveillance Act (FISA).^[75] In response former Vice President Al Gore stated the following:

"A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution - our system of checks and balances - was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men.""

"An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution - an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."^[76]

The same rationale was used to deny detainees in the War on Terror protection by the Geneva Conventions resulting in a global controversy surrounding apparent mistreatment. Also Elizabeth Holtzman and Charlie Savage contend that the Detainee Treatment Act of 2005, which was adopted to address prisoner abuse, might be ignored after President Bush added a signing statement, invoking his rights as Commander-in-Chief, to that bill.^[77] President Bush wrote in part:

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."^[78]

Elizabeth Holtzman and Charlie Savage contend the President has, with that statement, reserved the right to waive the act.^[77]

Critics assert that, the position taken by adherents of the "unitary executive" theory, and advocated by John Yoo in particular, holds that a U.S. President in the exercise of his Constitutional war powers cannot be restrained by any law, national or international.^[69] Others note that the view Yoo advocates, closely resembles the Führerprinzip,^[79] and is similar to the one seen in police states.^[80]

Legal experts Scott Horton, David Abraham, Ahmad Chehab, Arthur Versluis suggested that the concept of the "unitary executive," as interpreted by the Bush administration, appears to be based upon Carl Schmitt's state of exception.^[67]^[68]

Rejecting the applicability of the arguments previously stated in support of such views, many argue that these views seem to have little basis in either the text or the history of constitutional law and this is seen by many to lend further credence to the skepticism regarding the validity of the arguments.^[69]

The Yoo position is supported by David Addington, former counsel and current chief of staff to the Vice President, who advocated a new paradigm, involving extreme flexibility of Presidential power.^{[citation needed]}

President Bush has applied the theory of the "unitary executive" in a wide range of controversial issues, often issuing signing statements detailing how the executive branch will construe legislation. President Bush issued at least 132 signing statements from 2001 to July of 2006.^[69]^[81] Of the 132 signing statements by President Bush, 110 of them have addressed specific constitutional issues, allegedly regarding attempts by Congress to infringe upon Constitutional powers specifically delegated to the Executive Branch. However, by the end of his term, George W. Bush will have issued more signing statements than all other Presidents combined.^{[citation needed]}

For example, in his statement announcing his signing H.R. 1646, the Foreign Relations Authorization Act, Fiscal Year 2003, President Bush wrote:

"The executive branch shall construe as advisory the provisions of the Act, including sections 408, 616, 621, 633, and 1343(b), that purport to direct or burden the conduct of negotiations by the executive branch with foreign governments, international organizations, or other entities abroad or which purport to direct executive branch officials to use the U.S. voice and vote in international organizations to achieve specified foreign policy objectives. Such provisions, if construed as mandatory rather than advisory, would impermissibly interfere with the President's constitutional authorities to conduct the Nation's foreign affairs, participate in international negotiations, and supervise the unitary executive branch."^[82]

In effect, Bush stated that when it comes to several areas of foreign policy, the provisions discussed in his signing statement are merely advisory.^{[citation needed]} It is not unusual for a president to release such a signing statement when he has concern as to how a bill he is signing into law will be interpreted in later court cases.^{[citation needed]} Indeed, it can be argued that he is stating ahead of time the position he will also later defend in court, and that this does not imply rejection of subsequent court decisions but a pre-statement to the courts.^{[citation needed]} Skeptics point out that he in effect uses them as line-item veto,^[74] although the Supreme Court already held the line item veto as unconstitutional in "Clinton v. City of New York".^[74]

Another signing statement that has garnered controversy is the signing of the Detainee Treatment Act, prohibiting cruel, inhumane and degrading treatment of detainees in U.S. custody. President Bush wrote in part:

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."^[83]

Some analysts contend the President has, with that statement, reserved the right to waive the act.^[27] It might be interpreted as a position he is prepared to argue in court when such a subject might be adjudicated.^{[citation needed]}

The NSA warrantless domestic surveillance program is another example of the Bush administration's application of its interpretation of executive power, which has led to much criticism.^[84] For example former Vice President Al Gore stated the following:

"A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution - our system of checks and balances - was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men.""

"An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution - an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."^[85]

Under the Bush administration, the United States Department of Justice has ruled that the Environmental Protection Agency may assess administrative penalties against federal agencies (e.g. the Department of Defense) pursuant to Congressional authorization, notwithstanding the unitary executive theory.^[86]

Critics assert that, the position taken by adherents of the "unitary executive" theory, and advocated by John Yoo in particular, holds that a U.S. President in the exercise of his Constitutional war powers cannot be restrained by any law, national or international.^[28] Others note that the view Yoo advocates, closely resembles the Führerprinzip,^[87] and is similar to the one seen in police states.^[88] Still others point to Jefferson's warning that the Tenth Amendment was needed to keep the Federal branches from monopolizing adjudication of rights, a danger further specified today by alleged attempts by the legislative and especially judicial branches to claim such a monopoly in a way that overwhelms the legitimate prerogatives of the states and of the federal executive branch. Supporters contend that the constitutional war powers critics object to are exactly the same war powers that Abraham Lincoln used to issue the Emancipation Proclamation in 1863 in the face of Copperheads, and that cases like Ex Parte Milligan should be distinguished from subsequent Supreme Court cases such as Ex Parte Quirin to which the administration refers as basis for the application of enemy combatant status.^[89] This position ignores the fact that in Milligan, the Supreme Court explicitly ruled that the Presidential claim of exceptional war powers was unconstitutional, whereas Quirin does not involve special war powers but merely discusses habeas corpus based on enemy combatant status. In addition to that, the validity of Quirin as a basis for denying prisoners in the War on Terrorism protection by the Geneva Conventions has been disputed^[90]^[91]^[92]^[93] and refuted by the US Supreme Court in Hamdan v. Rumsfeld, in which it ruled that Common Article Three of the Geneva Conventions applies to detainees in Guantanamo Bay and that the Military Tribunals used to try these suspects were in violation of US and international law.^[94]

Since the 1942 Quirin case, the US signed and ratified the 1949 Geneva Conventions, which are, therefore, considered to be a part of U.S. municipal law, in accordance with Article 6, paragraph 2, of the Constitution of the United States.^[95]