Bruce Schneier 's ideas have been commented about on SSR in the past in relation to security. However in this article titled; Unchecked presidential power he has a look at separation of powers and the aggrandization of the executive branch in times of war.

Schneier argues the greater danger in the recent revelation, even confession, that the Bush Administration instructed the NSA to eavesdrop on American citizens without bothering to go through a FISA issued warrant is in the breaking of separation of powers.

This isn't about the spying, although that's a major issue in itself. This is about the Fourth Amendment protections against illegal search. This is about circumventing a teeny tiny check by the judicial branch, placed there by the legislative branch, placed there 27 years ago -- on the last occasion that the executive branch abused its power so broadly.

Schneier addresses Yoo's justification for the circumventing of judicial approval by the claim that the US is at war with terrorism, and in a time of duress on national security the Executive should be able to do everything they can to ensure the security of the state. Firstly, no war has been declared. Something which the US Constitution is explicit about. The American Founding Fathers required that declaring war be the sole authority of the Legislature, as war itself often only bolsters power to the Executive.

The result is that the president's wartime powers, with its armies, battles, victories, and congressional declarations, now extend to the rhetorical "War on Terror": a war with no fronts, no boundaries, no opposing army, and -- most ominously -- no knowable "victory." Investigations, arrests and trials are not tools of war. But according to the Yoo memo, the president can define war however he chooses, and remain "at war" for as long as he chooses.

This is indefinite dictatorial power. And I don't use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law. In the weeks after 9/11, while America and the world were grieving, Bush built a legal rationale for a dictatorship. Then he immediately started using it to avoid the law.

Schneier finishes with a warning that separation of powers is a fundamental tenet of liberal democracy;

Laws are what give us security against the actions of the majority and the powerful. If we discard our constitutional protections against tyranny in an attempt to protect us from terrorism, we're all less safe as a result.

The United States has greater separation of powers between the Executive, Legislature and Judicial than Australia's Westminster system does. In the US the Executive is the President and his Executive Cabinet of appointed secretaries, such as the secretary of defence, secretary of state etc. The legislature is the Senate and House of Representatives, also known collectively as Congress. The Judicial is the federal court system which the President nominates candidates for and the Senate approves or rejects.

In summary the Legislature makes laws, the Executive executes those laws, and the Judicial interprets those laws. One of the issues is that Bush made up his own laws when he made an executive order that contravened a law from the legislature, and without judicial oversight. With that executive order he became Executive, Legislature and Judicial all in one person. This is commonly what the old Kings were.

In the Westminster system the Executive is split between the Governor-General [GG] and the Prime Minister [PM]. The Governor-General is the formal Executive but the Constitution limits the GG's power by demanding that the GG only take advice from the Prime Minister.

The Prime Minister is the informal Executive, and the PM's senior ministers make up the Executive Cabinet. For instance the Treasurer, the Foreign Minister, the Health Minister etc. The Legislature is the Senate and House of Representatives which are collectively known as Parliament. The Judicial is the commonwealth court system. Appointments to the Judicial arm are made by the Prime Minister.

One of the problems in the Westminster system is that the power of the Executive is embedded in the Legislature. The Prime Minister not only makes laws, but also executes them. As a consequence the separation of powers is weak in the Westminster system, especially when the one check on the Executive, the Senate, is controlled by the same party as the Prime Minister's.

Separation of powers is supposed to put the tensions between each branch of government in balance, ensuring that one arm cannot crowd out the others and claim all authority to themselves. It is a barrier to tyranny. One that is inherently weak in Australia, and it appears being eroded in the US under the auspices of the national security state.

More information;

• Separation of Powers or Executive Authority?
• Joh Bjelke-Petersen and Unicameral Parliament
• Separation of Powers and Parliamentary Systems

More Reading on Separation of powers

• Separation of Powers
• US Politics
• Prime Minister
• Executive
• Legislature
• Judicial
• Parliament
• Separation of Powers and Parliamentary Systems
• Unchecked Executive Power
• Gaoled Frank Browne
• What Do People Want?
• That Bloke Montesquieu
• Thoughts on Executive Function
• The Governor-General and Governor-Magistrate
• Thoughts on the Judicial
• Balancing Legislative and Executive Representation
• Enjoying Barnaby Joyce