Also In This Issue Related stories: Cover Story • No Hand-Wringing, Please • Instructions Not Included • The Unintended Revolution • U.S. Economic Hegemony Ebbs

By Shane Harris, National Journal
© National Journal Group Inc.
Monday, Jan. 28, 2008

As George W. Bush enters his presidential twilight, one could posit two relatively extreme conclusions about the legacy he leaves on the government's intelligence and security apparatus.

The first is that Bush has done more to shake up the system, and to assert the commander-in-chief's dominance over it, than any other president in modern times. Under the banner of a global war on terrorism, he strengthened the president's control over key functions -- particularly intelligence-gathering at home and abroad -- that his predecessors felt compelled to share with Congress and the courts. Bush successfully asserted an expansive yet doctrinaire interpretation of executive power to defy lawmakers' critical influence over surveillance, interrogation, detainee policy, domestic security, and a raft of other issues. And he authorized two of the most significant and complicated additions to the executive branch in half a century, the Homeland Security Department and the Office of Director of National Intelligence.

"Under Bush, the intelligence community changed in a more dramatic way than it did under any president since [Harry] Truman," who signed the law that created the CIA and the modern intelligence bureaucracy, says Timothy Naftali, a presidential and intelligence historian and the director of the Richard Nixon Presidential Library and Museum in California.

But there's an alternative conclusion: Bush's legacy on intelligence and security is a qualified failure. His reaction to the worst surprise attack on the United States since Pearl Harbor was not to upend the system that was supposed to predict it but to keep the system's leaders in charge and to hastily layer on new bureaucracies, staffed by the very same people. "In a time of intelligence failure, he retained those who failed," says George Friedman, the chief executive officer of Strategic Forecasting, a private intelligence firm, and the author of several books on intelligence and warfare.

Yes, the president responded vigorously to the threat of extremism, ramping up the operations of the intelligence agencies to capture or kill terrorists. But many presidents have exercised strong, even questionable intelligence powers during wartime, and so it's perhaps historically nearsighted to cast Bush's actions as extraordinary. Bush should have used more "soft power" and waged a public information campaign against terrorism, critics argue. He also didn't push hard enough to knock the intelligence agencies off their obsolete Cold War footing, and he implemented institutional reforms only under political pressure from Congress and the 9/11 families. Although the intelligence community now has a nominal leader, that official has said he was given ultimate responsibility without the legal authorities he needs to change how the agencies hire, train, and spend money.

The legacy question will not be settled soon, and perhaps the final analysis lies somewhere between these two poles. But for the time being, they are instructive, because they help illuminate two conclusions about which there's greater certainty. From the dawn of his presidency, George W. Bush aimed to reassert the chief executive's primacy in the conduct of intelligence and national security, and he has succeeded for now. It's difficult to impossible, however, to know whether the absence of a second terrorist attack on the United States is a direct result of his conduct, his policies, and the levers of power he has pulled. Put another way, the president has made himself stronger. But what is the tangible benefit for his successor, for the government, and for the rest of us?

Filling The Toolbox
It was Bush's goal, and the stated intention of his chief foreign-policy architect, Vice President Cheney, to reclaim the constitutional prerogatives that Cheney believed previous presidents had squandered in the post-Watergate era. "Time after time after time, administrations have traded away the authority of the president to do his job. We're not going to do that," Cheney told Fox News in January 2002. "The president is bound and determined to defend those principles and to pass on this office, his and mine, to future generations in better shape than we found it."

Cheney took his oath of office prepared to fight for this ideal, and he convinced the president of its merits. The September 11, 2001, attacks became what author Ron Suskind has called "a moment of preparation meeting opportunity." The intelligence and security agencies, perhaps more than any other organs of government, became the vessels through which Bush would carry out what he considered his most solemn duty -- to protect the nation using all of the tools available to him.

The exigencies of 9/11 compelled the president to authorize warrantless surveillance by the National Security Agency, and the secret detention and interrogation of senior Qaeda operatives. There were other, less controversial but significant actions: the heightened scrutiny of airline passengers, for example, including physical searches and computerized checks. Bush leaves these instruments in the presidential tool kit.

Even after many senior intelligence officials believed that the immediate threat of another attack had passed, the president didn't curtail his wartime authorities or seek to modify them through public consultations. What limited adjustments he has made came mostly after secret intelligence activities were publicly exposed.

"After 9/11, there was a need for urgent action, and sometimes without the fullest of discussion," says John Brennan, who in 2004 became the first director of the National Counterterrorism Center. Brennan, now chairman of the Intelligence and National Security Alliance, a policy advocacy group, echoes a sentiment held by many of his colleagues. "Where I fault the administration," he says, "is that after the heat of 9/11 dissipated a bit ... that's when it should have embarked to engage meaningfully with the [congressional] oversight committees and the judiciary, to put in place those programs for the longer term."

Naftali, the presidential historian, says that whoever is elected this fall "has an opportunity to reassess the crisis, to dial back some of these decisions." But that won't happen quickly. Bush's actions have been institutionalized. Although specific legal opinions can be rewritten, the next president cannot easily shutter whole agencies, and it's unclear that any of the leading candidates would, or could, do so.

"There's no question that the counter-terrorism efforts that our country has put in place have complicated terrorists' ability to act," Naftali says. "And there's no question that Al Qaeda would like to hit us again." But it's hard to know, because intelligence is secretive, whether the government is any better today at predicting or stopping an attack than it was before 9/11, he adds.

With that level of uncertainty, a future president won't simply empty Bush's tool kit. Bush's successor will probably find his authority too tempting, and the prospect of being blamed for another attack too overwhelming, to scrap what the president has put in place and start over. The next president may recalibrate policies, or adorn them with different legal opinions, or drop slogans such as "war on terror." But don't look for an about-face. "The next president will be as aggressive as this president," Friedman predicts.

Truly Strong
There is another possibility, however. Bush's intelligence and security legacy may ultimately prove tragic. In that case, his successor's course of action may already be charted.

As the late historian Arthur Schlesinger noted, previous wartime presidents have flexed their emergency muscles with restraint, and not out of meekness or because they failed to appreciate their grave responsibility to protect the nation. "The truly strong president," Schlesinger wrote in The Imperial Presidency, "is not the one who relies on his power to command but the one who recognizes his responsibility, and opportunity, to enlighten and persuade; not the one who wants to transcend the Constitution but the one who sees that the disciplines of the Constitution are indispensable to his own success as a democratic leader and to the survival of democratic government."

Bush argues he has neither transcended his constitutional role nor failed to convince a significant number of Americans he has kept them safe. But his reliance on his perceived authorities, what former Justice Department official Jack Goldsmith calls "the hard power of prerogative," has perhaps undercut the very goal that Bush and Cheney set out seven years ago to achieve: handing off a stronger office.

Congress and the public may well expect the next president to immediately rebuke or even relinquish some of Bush's wartime authorities, to show that the "truly strong president" is back in charge. Goldsmith, a conservative lawyer who headed the Office of Legal Counsel from 2003 to 2004 and objected to the legal underpinnings of Bush's most aggressive intelligence policies, finds evidence that the president has already set in motion this outcome. Recalling Schlesinger, Goldsmith writes in his memoir that Bush "has seen his hard power diminished in many ways because he has failed to take the softer aspects of power seriously."

So, as the curtain falls on the Bush era, this question lingers: Have the president's unilateral actions, which defined him in office and may well have kept the country safe, pre-emptively tied his successor's hands behind his or her back?