Unchecked and Unbalanced: Presdidential Power in a Time of Terror

A scathing portrait of contemporary executive power run amok, by the author of the original 1976 Church Committee report on executive abuse.

"In thirty-four years, I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job."—Vice President Dick Cheney

Thirty years after the Church Committee unearthed COINTELPRO and other instances of illicit executive behavior on the domestic and international fronts, the Bush administration has elevated the flaws identified by the committee into first principles of government.

Through a constellation of non-public laws and opaque, unaccountable institutions, the current administration has created a "secret presidency" run by classified presidential decisions and orders about national security. A hyperactive Office of Legal Counsel in the Department of Justice is intent on eliminating checks on presidential power and testing that power's limits. Decisions are routinely executed at senior levels within the civilian administration without input from Congress or the federal courts, let alone our international allies. Secret NSA spying at home is the most recent of these. Harsh treatment of detainees, "extraordinary renditions," secret foreign prisons, and the newly minted enemy combatant designation have also undermined our values. The resulting policies have harmed counterterrorism efforts and produced few tangible results.

With a partisan Congress predictably reluctant to censure a politically aligned president, it is all the more important for citizens themselves to demand disclosure, oversight, and restraint of sweeping claims of executive power. This book is the first step.

Frederick A.O. Schwarz Jr. is senior counsel at the Brennan Center for Justice at NYU School of Law and a partner at Cravath, Swaine & Moore. He was chief counsel to the Church Committee. Aziz Z. Huq is associate counsel at the Brennan Center and previously clerked for the U.S. Supreme Court. They both live in New York City.