The Unitary Legislature, Or, How to Exercise Command and Control Over the Commander in Chief

MoveOn.org went after the wrong person. It’s not about questioning the patriotism of a military officer subordinate to the nation’s 43rd Commander in Chief. It’s more about holding the Commander in Chief, the President of the United States, responsible for his incompetent mismanagement of the national security of the United States, meaning the safety and security of the American people. That portfolio, the Executive branch’s command and control of the nation’s armed forces, ought to be removed from the 43rd President since it has been repeatedly demonstrated that he, George W. Bush, and his national security civilian subordinates are grossly incompetent and have engaged in a willful series of factual misrepresentations to Congress and the People of the United States. These factual misrepresentation led the Unites States to initiate and engaged an unnecessary war in Iraq, while the nation’s main enemy, al Qaeda, stills resides in border region of Afghanistan and Pakistan, six years after that terrorist organization’s September 11th 2001, attack on the United States.

While this President, acting as Commander in Chief, has incompetently pursued a disastrous foreign policy in an already volatile region, his legal counselors developed a legal theory that allows him to do anything he wants as Commander in Chief when the nation’s in a state of national insecurity. This theory of executive power seeks to subvert a commonsensical and transparent reading of the nation’s Constitution; it seeks to imply that powers not stated in the Constitution are greater than those that are.

If there is a “Unitary Executive” theory that the Constitution, as argued by some of the President’s legal counselors, which gives the Executive Officer of the United States government unlimited power (“inherent powers”) because that Officer is the “Commander in Chief,” then the stated powers, as expressed by the Constitution, gives Congress even greater powers, supported by a concept called the “Unitary Legislature.”

Congress, as a whole, represents the collected, unitary voice of the People of the United States; and is it directly answerable and accountable to the People via elections, as opposed to the President who is indirectly elected by the Electoral College. As such, Congress, as represented by the Office of Speaker of the House, has the responsibility to create laws and see that the President, even while performing his role of Commander in Chief, faithfully executes the laws.
Congress, constitutionally, has explicit as well as inherent powers of oversight regarding the Commander in Chief since the U.S. Constitution explicitly states that Congress shall have the power to:

a. raise an army;

b. raise a navy;

c. congressional oversight over military and national security matters

d. raise taxes and appropriate funds to war and military efforts

e. and, most importantly, the power to declare war.


Thus Congress, the legislative branch, has constitutionally a right to check, challenge and remove a Commander in Chief for abuse of power or incompetency in administering that function. Section 2 of the 2nd Article of the Constitution says this and only this about the power of Commander in Chief:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.

It explicitly says nothing about his powers as Commander in Chief. In reality, Congress grants the nation’s Executive Officer the right to wield the power as the Commander in Chief on behalf of the American people. Congress, and only Congress, can declare war. The President, by law, mandated to engage in basic national security defense such as guarding the Nation’s borders and coast, keeping a well-trained defense force. Just as Congress has the right and responsibility to remove the President for high crimes and misdemeanors if he abuses his role as Executive Officer, Congress can either impeached the President for his conduct as Commander in Chief, or remove those powers from him.

In other words, Congress, as the collective representative of the people of the United States, has the power to exercise its command and control over an errant Executive who abuses his power as Commander in Chief.

Thus it could be argued that:

President George W. Bush, Commander in Chief of United States Armed Forces, did engaged in the following high crimes and misdemeanors and warrants impeachment and removal as this United States’ Commander in Chief:


1. The President as “Commander in-chief” misrepresented facts to the Congress and the American people in regard to the country’s need to go to war (“casus belli”) against the state of Iraq. The principle reason was that former President Saddam Hussein was manufacturing and housing Weapons of Mass Destruction (WMD);

2. And that Iraq had an operational relation with the terrorist entity Al Qaeda, which attacked the United States on September 11, 2001. No WMDs have been found and Iraq, as evidenced by the 9/11 Commission. Iraq did not participate in Al-Qaeda attack on the United States.

3. The Commander in Chief, as the executive commanding officer of the United States military apparatus, viz.-a-viz, the Department of Defense, had incompetenly prepared for the invasion of Iraq and its post-war occupation. Officers who stated the need for several thousand troops to fight and occupy Iraq were denigrated and isolated to the detriment of the security of the American people. By incompetently preparing for the war, the Commander in Chief failed to get needed material to troops in the field.

4. The National Security Council, Coordinated by the Commander-in-chief’s National Security Adviser, has performed in such as manner as to be more of a threat to the security of the people of the United States than to the country’s actual enemies. Its inability to anticipate, analyze, and coordinate executive departments mandated with the Nation’s security has undermined the Commander-in-chief’s ability to protect and defend the people of the United States, the prime responsibility of the President as Commander in Chief.

5. By invading Iraq, the President as Commander in Chief removed vital resources and personnel who had been fighting Al-Qaeda in Afghanistan. To this day, the resurgence of the Taliban and Al-Qaeda in Afghanistan is attributed to the incompetent mismanagement of the war in Iraq and Afghanistan.

6. Contrary to basic United States’ principles and laws, international law, the Commander in Chief has sanctioned the use of torture.

7. The Commander in Chief has sought to undermine the writ of habeas corpus by declaring US citizens “enemy combatants” thus removing them from the jurisdiction and scrutiny of United States Courts.

8. The Commander-in-chief engaged in secret surveillance wiretapping in violation of U.S. laws.


The President, as Commander in Chief, of the United States armed forces, did willfully misrepresent certain facts to the United States Congress regarding the state of Iraq and its president, Saddam Hussein; that country’s relationship with al-Qaeda; Weapons of Mass Destruction, and that alleged state’s participation in the attack on the United States on September 11, 2001.

Congress granted the President an Authorization for Use of Military Force Against Iraq on October 16, 2002, which the Commander in Chief, the President of the United States, fraudulently used to justify an attack on the state of Iraq knowing full well that his Administration’s clams against Iraq were untrue. Section 2 of that authorization states:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

It has been well documented that Iraq did not participate in the attack on the United States and it also has been documented that the President knew so but chose to follow a course of action, attacking Iraq, which seriously compromised the nation’s effort to defeat that terrorist organization, Al Qaeda, which did attack the nation on that new day of infamy.

The President, as Commander-in-chief, should be held accountable for his mismanagement of the war in Iraq. As a MBA graduate of Harvard University, the President George W. Bush prides himself on his CEO style of management. However, by any reasonable and professional business practices, standards, and desired outcomes, the President, as the manager of the Nation’s national security apparatus and the national defense, has been an abysmal failure. That failure has dire consequences for the People of the United States.

The Unitary Executive, as articulated by some of the president’s legal counsel, is an assumption of power in which the Executive assumes powers that he does not legally have in the Constitution. Under our Constitution, Congress has a more stated role in National Security affairs than the President as Commander in Chief. As matter of fact, Congress created the National Security Act of 1947, which gave birth to the Joint Chiefs of Staff, the National Security Council, National Security Agency, the Department of Defense, and, most importantly, the Central Intelligence Agency.

The Legislative branch not only created the agencies that are under the jurisdiction of the Executive Officer but oversight and a corrective function when that Officer is errant and has unfaithfully executed the laws of this country.

In the view of the Constitution, the Unitary Executive theory is a coup by stealth by an Executive branch that claims powers not stated by the Nation’s controlling political document, the Constitution, which is a “power map,” if you will. That power map, the Constitution, lays out which branches of government have certain powers and each branch’s responsibilities. In the field of national security, the Legislature has a more pronounced set of powers than the Executive. The Unitary Executive argument is a reiteration of the divine right of kings, and prescription for tyranny masquerading as security. In this argument, the king can do no wrong and whatever he likes if he solely deems situations to be a threat to the nation’s security. This theory seeks to subvert the basic American political concept of judicial review; it seeks to circumvent the Judiciary’s role in seeing that the Nation’s laws are faithfully executed.

The United States is a democratic republic, and as such has no king whose power is unlimited. As one of the country’s founding political theorists once argued, “In America the law is the king.”

It is certainly a high crime and misdemeanor to not truthfully inform Congress the reasons for going to war, and fraudulently claim a set of “facts” to justify another action under a false pretense.

When President Bush as the Commander-in-chief of US armed forces, outfitted in a U.S. military flight suit, landed on a United States warship, the USS Abraham Lincoln, and announced that “major hostilities” had ended in Iraq, he willing committed a factual misrepresentation that was either based on defrauding the American people or engaging in a gross and incompetent mismanagement of the early phases of an unnecessary war.

The ”major hostilities” that supposedly had ended became a civil war by competing Iraqi factions due to the Commander in Chief not adequately sending enough troops to maintain order and then breaking up the state of Iraq’s national security infrastructure that could have maintained order and stability as the country tied to new political framework.

Meanwhile, al-Qaeda, under the leadership of Osama bin Ladin, has regrouped and is planning further attacks on the People of the United States and their interests.

Congress therefore should revoke the Authorization for Use of Military Force of 16 October 2002, or amend it to specifically de-authorize the use of military force in Iraq, and redeploy American forces homeward or forward to Afghanistan.

Congress should strip the President of the United States, George W. Bush, of his powers as commander-in-chief and turn such over to the Joint Chiefs, whom shall report to the joint national security committees of Congress. Vice President Dick Cheney should also be impeached for aiding and abetting President Bush’s factual misrepresentation to Congress.

The Joint Chiefs should present to Congress a plan to continue hostilities against Al Qaeda, and present to Congress an assessment of the state of the United Sates armed forces.

The full powers of the Commander in Chief, in the office of the President of the United States, will be returned on January 20, 2009.

Is Brand Obama Already Stale?

New. Different. Attractive.

That was how Keith Reinhard, chairman emeritus of DDB Worldwide, described Barack Obama in an April 2008 Fast Company article, “The Brand Called Obama.” But has the Obama brand become stale?

True to the American form of hip commercialization, the article reduced Sen. Barack Obama to essentially being a brand. The article went even further and reduced “Politics” as merely being “about marketing—about projecting and selling an image, stroking aspirations, moving people to identify, evangelize, and consume.” And what do people consume? A product.

According to this mindset, it’s not about policies that affect people for better or worse.

It is interesting when one reads the newspapers or listens to radio, hearing about either John McCain (“Maverick”) or Hillary Clinton (“Experienced”) referred to as brands, or how what is known about them—their projected personas—their brand being confused or devalued by a message or an event that is unfamiliar, crowding out their message. In a commercial society where almost everything is reduced a cash nexus relationship, politics is essentially one of branding, or marketing.

This is the natural result of the techniques of advertising and marketing, of candidates being handled by professional campaign managers who know how sell people, market politicians as products. Joe McGinness noted it years ago in his book about Richard Nixon, The Selling of the President 1968. The “Tricky Dick” of yesteryear, the 1950s and early 1960s, was repackaged and sold as the tanned, rested and ready Nixon of 1968, ready to lead the nation during the dark days of Vietnam, assassinations, and social disorders. Nixon, with the help of advertising and television handlers, branded himself as new and improved. One of the grand masters of this style of politicking was Clem Whitaker, a former newspaperman who founded Campaigns Inc.


Campaigns, Inc. has been cited as being one of the first professional campaign/PR firms. It took over a candidate’s entire campaign, devised his or her strategy, replacing what a party once did: being an agent between the candidate and the electorate. (Whitaker successfully branded Harry Truman’s national health care plan of the 1940s as “socialized medicine,” undermining any chance of universal healthcare for the American people for the rest of the 20th century.)

Whitaker understood how things could be marketed to a certain base, the American consumer: “The average American doesn’t want to be educated,” said Whitaker. “He doesn’t want to improve his mind; he doesn’t want to work, consciously, at being a good citizen. But most every American likes to be entertained. He likes movies; he likes mysteries; he likes fireworks and parades…So, if you have to fight put on a show!”

Branding is pervasive in American politics. Think of the Republican Party and one immediately understands its brand: Strong Defense. Family Values. Free Enterprise. Pro-Life.

Democrats, as they have been defined or “branded” by the Republicans, are: Unpatriotic. Tax and Spend. The Enemy of Normal People. Weak on Defense. In short, Liberals.

“Change That You Can Believe In”. “Yes, We Can.”

These were the essential messages of Obama’s primary campaign, along with
“a new kind of politics.” What is interesting to note about the Fast Company article is that it’s basically a horse-race article. Issues aren’t important; it is how Team Obama branded Obama the product, or how the game is played. Most of the article is about how Internet saavy Team Obama is: getting Facebook genius Chris Hughes on board, or how Obama mashups were viral and viewed as more authentic. Obama was readily available in the online world, but his brand was protected by keeping him way from those people who have a tendency to kick the tires and check underneath the hood of any suspicious four-wheeled brand: the press.

Yet Brand Obama was marketed tested by that new breed of 2.0 journalism, the citizen blogger. Blogger Mayhill Fowler, attending an Obama fundraiser in San Francisco, reported the Brand’s infamous “cling” remarks about lower-brand folks in the American hinterland.

So has Brand Obama lost its zing? It’s zip? It’s snazz? Put another way, is Barack Obama merely old wine in new wineskin? The gleam of this brand, spanking new model appears to have lost some of its luster. As the NYT noted in April, he had enjoyed a considerable lead among men in February over Hillary Clinton: “67 percent of men wanted the party to nominate him compared with 28 percent for Mrs. Clinton. Now 47 percent back him, compared with 42 percent for her.”

Undoubtedly, the wear and tear on this brand in the primary season, the trial marketing period, has been considerable, but not enough to prevent him from reaching the necessary delegate number to seal the deal for the nomination in Denver. But increasingly the fresh face of 2004 is beginning to look like “Fast Eddie Obama,” talking out of both sides of his neck, a trick not unusual for politicians.

There are three issues that potentially show how Brand Obama even before taking the oath of office as POTUS, even before getting the actual nomination to be the candidate as the Democratic standard bearer, has become a typical politician, undermining the freshness of the brand.

1. Suck-up politics

His statement before the American/Israel Political Action Committee (AIPAC) classically underscores that professed fealty to Israel is truly the third rail of American politics. Touch it and you fry. In order to prove that he’s even more loyal to Israel than the Likud wing of the Republican Party, more protective of its security than his own country’s national interest, and because there’s a on-going subterranean smear campaign regarding his Muslim heritage (despite being a professed Christian), Obama even promised that Jerusalem would be an “undivided city.” This was going beyond stated American foreign policy. This was, however, a typical case of overcompensation, in which an outsider has to be 110 percent more than whatever an insider is. (Note how Hillary Clinton had to act more “male” or “macho” than any of her Democratic Party rivals to belie the notion that as a woman she wasn’t up to being commander-in-chief.)

A new kind of politics would have made an attempt not to play the pandering game that American politicians engage in before specific audiences. Just as most politicians have to genuflect before AIPAC, most white politicians have to “We Shall Overcome” before black voters. (And it doesn’t help Obama that his national security advisory group contains Clinton retreads such as Warren Christopher and Madeleine Albright. Has Samatha Powers been banished forever?)

2. More Money than God

Obama’s pledge to use public funding is now dead. Collecting more money than God ($272 million at the last counting) during the primary, Team Obama has decided not to seek $84 million available through public funding. Of course, this led Team McCain, which is lagging in that department, to condemn him as a “typical politician,” a classic flip-flopper. However, John McCain himself has been playing fast, loose, and furious with campaign spending laws, having had to jettison lobbyists from his campaign.

But is there a modicum of validity that while Obama talks good government he hides an iron fist in a very expensive velvet glove? Or, as a lobbyist mused about Obama before journalist Ken Silverstein, “What’s the dollar value of a starry-eyed idealist?”


3. FISA Capitulation

Nothing better sums up the gutless politics of utter capitulation than the House Democrats, for fear of being labeled weak on national security, by caving in on the most recent version of the Foreign Intelligence Surveillance Act. A law in which the current administration broke by engaging in warrantless eavesdropping on American citizens without court supervision as specified by law, and then ordering telecommunication firms to do so; once again, breaking the law. Now the Bush administration seeks to codify the executive branch skirting the law and then granting telecoms immunity for breaking the law. Worse yet is Barack Obama, a constitutional law professor, going along with this wanton form of law breaking. Obama justifies supporting such a bill that undermines constitutional freedoms by invoking the same rationale that the Bush administration has used for years, namely “grave threats.”

By any reasonable examination, Barack Obama has embraced the politics of flip-flopping. Once sympathetic to the plight of Palestinians, he has now positioned himself as Israel’s next best friend. (And if he accedes to the White House, don’t be surprised if Israel smacks Iran in the first term of his presidency—if not sooner.) Arguing for a new kind of politics, “change that you can believe,” he breaks a pledge, uses a lawyer-like justification for eschewing public financing. Once denouncing a previous bad FISA bill that sought to codify the brazen lawbreaking of the Bush administration, he now backs a bill that his senate colleague Russ Feingold has termed as “capitulation.”

Obama’s appeal, his source of strength, seems to the emotional intelligence that he conveys through his charismatic appeal. This is his greatest branding strength: he makes people believe, which means that consumers have an emotional investment in Brand Obama as he is known now, or as he appears to be to them.

However, what Obama may truly be offering is a respite from eight years of hard-right Republican governing—war, corruption, incompetence— for a surface reality of change—post-racial, post-partisan—without the necessity of social reality or actual political change occurring at all.

Despite the excitement that Obama has generated, American politics may have morphed into one long advertising campaign: now it’s truly all about the marketing until the next production cycle. As Andrew Card once said of another product (the Iraq War), ``From a marketing point of view, you don't introduce new products in August.''