The Neoconservative Architecture of American Authoritarianism: A Forensic Analysis

P1.7.1: A comprehensive examination of the institutional infrastructure built between 2001-2008 and its exploitation 2017-present

Executive Summary

The political convulsions of the post-2016 era have produced few spectacles as jarring as the “Never Trump” movement, a coalition of exiled Republicans spearheaded by prominent neoconservatives such as William “Bill” Kristol, Max Boot, and David Frum. These figures, once the undisputed architects of Republican foreign policy and legal theory during the Bush administration, have reinvented themselves as guardians of liberal democracy, loudly decrying the authoritarian impulses, disregard for the rule of law, and attacks on press freedom that characterize Donald Trump’s presidency.

They present the Trump phenomenon as a hostile takeover, an aberration that hijacked a noble party and severed it from its principled roots.

This analysis challenges that narrative. Through comprehensive examination of legal precedents, policy directives, executive orders, and rhetorical patterns from the Bush-Cheney era (2001-2008), we demonstrate that the neoconservative establishment did not merely fail to prevent Donald Trump’s authoritarian governance—they constructed the very infrastructure he exploits.

The evidence is systematic and documented:

The Unitary Executive Theory, championed by Kristol’s intellectual circle and operationalized by Vice President Dick Cheney, dismantled congressional checks that would have constrained executive overreach. The Authorization for Use of Military Force (AUMF), designed as emergency counter-terrorism authority, created permanent war powers with no sunset clause, no geographic limits, and minimal oversight—powers now repurposed for domestic security operations. The legal doctrines developed to justify enhanced interrogation, warrantless surveillance, and indefinite detention established precedents for presidential actions beyond normal legal constraints—doctrines that evolved into claims of absolute presidential immunity.

The rhetorical strategy of delegitimizing dissent—labeling critics as “unpatriotic” and equating investigative journalism with espionage—destroyed the epistemic foundations necessary for democratic accountability, paving the road for “alternative facts” and “enemy of the people” rhetoric.

Between September 2025 and December 2025, the Trump administration has conducted dozens of lethal military strikes against alleged drug smugglers in the Caribbean and Eastern Pacific, with over 100 deaths reported and no arrests, trials, or judicial review.^¹ This represents the direct operational exploitation of the post-9/11 infrastructure: emergency powers to designate threats, terrorist labels to bypass criminal justice, and military authorities to use lethal force without legal constraint.

The tragedy of the “Never Trump” neoconservative is not one of displacement, but of recognition. In Donald Trump, they do not face a stranger, but the logical, if grotesque, culmination of the institutional architecture they spent decades assembling.

This report provides exhaustive documentation of this legacy, tracing the lineage of contemporary authoritarianism from the pages of The Weekly Standard to the executive orders of the 47th presidency.

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Part I: The Unitary Executive Theory and the Dismantling of Congressional Constraint

1.1 Theoretical Origins: The Post-Watergate Backlash

The neoconservative movement’s relationship with executive power begins with a fundamental rejection of the post-Watergate reforms. Following Richard Nixon’s resignation, Congress enacted a series of measures designed to restore balance between the branches: strengthening the Freedom of Information Act, passing the War Powers Resolution (1973), establishing the Foreign Intelligence Surveillance Act (FISA, 1978), and creating the independent counsel mechanism.

The neoconservative faction, particularly those aligned with Dick Cheney and the Federalist Society, viewed these reforms not as necessary corrections but as unconstitutional constraints on presidential authority. As Cheney himself stated in interviews, he believed the presidency had been “weakened” and that restoring “energy in the executive” was a moral and constitutional imperative.²

Bill Kristol, serving as chief of staff to Vice President Dan Quayle (1989-1993), became a central figure in this movement. For Kristol and his contemporaries, Article II’s vesting of “executive power” in the President implied that any attempt by Congress to insulate executive branch officials from presidential control violated the constitutional structure. This interpretation—known as the Unitary Executive Theory—remained largely academic until the George W. Bush administration.

1.2 Operationalization: The Bush-Cheney Administration

With Cheney as Vice President and Kristol providing external ideological reinforcement through The Weekly Standard (which he founded in 1995), the Bush administration moved to operationalize the Unitary Executive Theory. The Project for the New American Century (PNAC), co-founded by Kristol in 1997, had already laid the intellectual groundwork, arguing for assertive presidential action in foreign policy unconstrained by “Vietnam syndrome” hesitations.³⁴

Kristol was not the sole architect of this infrastructure—that role belongs to figures like Cheney, Addington, and Yoo who operationalized the legal theories. But Kristol was a central public champion and political organizer for the post-9/11 expansion of executive power, using The Weekly Standard and PNAC to build intellectual and political support for the legal doctrines that others implemented.⁵

Following the September 11, 2001 attacks, the administration constructed a legal framework where presidential powers as Commander-in-Chief could not be restricted by coordinate branches of government. David Addington, Cheney’s legal counsel, and John Yoo at the Office of Legal Counsel (OLC) became the primary architects of this framework.⁶

1.3 Mechanisms of Unchecked Power: Direct Lineage to Trump

The systematic connection between Bush-era legal innovations and Trump-era exploitation:

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REMOVAL POWER

Bush/Neoconservative Precedent: Aggressive interpretation of Myers v. United States—President has absolute authority to fire executive officials

Neoconservative Justification: Kristol/Federalist Society argument that independent regulators are unconstitutional; President must have “unity of control”⁷

Trump Exploitation: Firing of FBI Director James Comey (2017), multiple Inspectors General including Michael Atkinson (2020), citing Article II authority⁸

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SIGNING STATEMENTS

Bush/Neoconservative Precedent: Bush administration issued 161 signing statements asserting right to ignore provisions of enacted laws⁹

Neoconservative Justification: President is co-equal interpreter of Constitution; can disregard legislative mandates deemed unconstitutional

Trump Exploitation: Used to justify withholding Ukraine aid (violating Impoundment Control Act), ignoring Congressional subpoenas¹⁰

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WAR POWERS

Bush/Neoconservative Precedent: 2001 AUMF interpreted as global, open-ended authority against any “associated forces”¹¹

Neoconservative Justification: Weekly Standard argued for “global” War on Terror not limited by geography or time¹²

Trump Exploitation: Soleimani strike (2020), threatened Insurrection Act deployment (2020), cartel strikes (2025)¹³

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EMERGENCY POWERS

Bush/Neoconservative Precedent: National Emergencies Act used post-9/11 to restructure domestic security without Congressional input

Neoconservative Justification: “Speed and secrecy” necessary for War on Terror; Congress “too slow/leaky”¹⁴

Trump Exploitation: Border wall emergency declaration (2019), cartel emergency declaration (2025)¹⁵

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The neoconservative defense of these expansions rested on a catastrophic assumption: that presidents would be people of “decent character” exercising “good judgment.” They designed a presidency suitable for philosopher-kings, creating a loaded weapon and assuming no demagogue would pick it up.

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Part II: The War on Terror Infrastructure

2.1 The Authorization for Use of Military Force: Permanent Emergency

On September 14, 2001—three days after the attacks—Congress passed the Authorization for Use of Military Force (AUMF). The text authorized the President 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.”¹⁶

Critical features of the AUMF:

• No sunset clause: The authorization has no expiration date

• No geographic limitations: Can be invoked anywhere globally

• Undefined scope: “Those he determines” vests determination authority solely in the President

• No meaningful Congressional review: No requirement for reporting or renewal

This was not an accident. Kristol and fellow neoconservatives explicitly argued against sunset clauses, asserting that “the War on Terror has no fixed endpoint” and that time-limiting emergency powers would “handcuff future presidents.”¹⁷

2.2 Operational History: 24 Years of Expansion

The 2001 AUMF has been invoked to justify military operations in at least 22 countries by four different presidents:¹⁸

• Afghanistan (2001-2021): Original target

• Philippines (2002-present): Counter-terrorism operations against Abu Sayyaf

• Georgia, Yemen, Somalia, Kenya, Ethiopia, Eritrea, Iraq, Syria (various dates): Drone strikes and special operations

• Libya, Turkey, Jordan, Niger, Cameroon, Chad, Lebanon (various dates): Training missions and strikes

Presidents Obama, Trump (first term), and Biden all used the 2001 AUMF despite not being in office when it was enacted. The authorization asks only: Are they the enemy? It provides no mechanism for determining who qualifies, who makes that determination, or what constraints apply.

2.3 The Torture Memos: Legal Framework for Executive Impunity

On August 1, 2002, the Office of Legal Counsel issued a memorandum authored by John Yoo addressing standards for interrogation under federal anti-torture statutes.¹⁹ The memo’s core argument: the President’s constitutional authority as Commander-in-Chief supersedes statutory prohibitions on torture when the President determines such interrogation is necessary for national security.

Key excerpts:

“Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”

“Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.”

This established the precedent that presidential action in furtherance of national security exists in a different legal category than normal executive action—a category where statutory constraints may not apply.

Bill Kristol’s Weekly Standard defended these interrogation practices, with multiple articles arguing that “enhanced interrogation” was both legal and necessary.²⁰ When the torture memos became public in 2004, Kristol’s response was not to question the legal theory but to criticize the “leak” as damaging to national security.

2.4 Surveillance Without Warrants: The FISA Bypass

In December 2005, the New York Times revealed that the National Security Agency had been conducting warrantless surveillance of American citizens’ communications since 2002, in direct violation of FISA requirements.²¹ The Bush administration’s legal justification: the President’s inherent Article II authority as Commander-in-Chief permits surveillance necessary for national security, regardless of statutory constraints.

Vice President Cheney defended the program vigorously, arguing that seeking FISA warrants would be “too cumbersome” and that Congressional notification would risk leaks compromising national security.²²

The Weekly Standard editorial response condemned the Times for publishing the story, with one piece titled “The Criminal Press” arguing that journalists who revealed classified information should be prosecuted under espionage statutes.²³

This rhetorical strategy—attacking the messenger rather than addressing the constitutional violation—established a template Trump would later exploit with “enemy of the people” attacks on media reporting unfavorable information.

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Part III: The Rhetorical Dismantling of Democratic Accountability

3.1 The Epistemic Weapon: Delegitimizing Truth-Seeking Institutions

The neoconservative movement’s most enduring legacy may not be legal theories or institutional changes, but the destruction of shared epistemic foundations necessary for democratic accountability. Between 2002 and 2008, Kristol and his allies systematically delegitimized every institution and practice capable of checking executive power.

This was not incidental rhetorical excess. It was strategic and sustained. The pattern: when faced with evidence of executive misconduct, don’t engage the substance—attack the legitimacy of those presenting evidence.

3.2 Attacking Congressional Oversight as Partisan Obstruction

The neoconservative response to Congressional oversight during the Iraq War established templates Trump would later perfect. When Congress attempted to investigate pre-war intelligence, treatment of detainees, or warrantless surveillance, The Weekly Standard and allied publications didn’t defend the substance of administration actions—they attacked the legitimacy of Congressional inquiry itself.

Representative quotes from neoconservative commentary 2003-2008:

“Congressional Democrats are more interested in undermining the Commander-in-Chief than defeating the enemy.” (Weekly Standard, 2005)

“Demanding documents during wartime creates intelligence vulnerabilities. Every subpoena is a gift to al-Qaeda.” (PNAC-affiliated commentary, 2006)

“The Founders never intended Congress to micromanage military operations. These oversight hearings are constitutional violations disguised as accountability.” (Weekly Standard editorial, 2007)

This framing established a principle: Congressional oversight during Republican presidencies is partisan obstruction, not constitutional duty. When Democrats controlled Congress (2007-2009), neoconservatives consistently characterized legitimate Article I oversight as illegitimate interference.

The through-line to Trump is direct. When the House impeached Trump in 2019 and 2021, he used nearly identical language: “partisan witch hunt,” “constitutional crisis created by Democrats,” “they’re trying to overturn an election.”

The Federalist Society lawyers defending Trump weren’t creating new arguments. They were applying neoconservative templates.

3.3 Criminalizing Whistleblowing

The post-9/11 era saw a dramatic escalation in prosecuting whistleblowers under the Espionage Act, with the Obama administration using it against leakers more than all previous administrations combined—a practice that built on the framework established during the Bush years.²⁴ The neoconservative intellectual justification developed during Bush’s tenure: anyone who reveals classified information, regardless of whether that information exposes wrongdoing, is providing “material support” to enemies.

When NSA analyst Thomas Drake revealed the agency was conducting warrantless surveillance in violation of FISA, the Bush administration charged him with ten felonies under the Espionage Act. The Weekly Standard editorial response didn’t question whether warrantless surveillance violated the Fourth Amendment—it condemned Drake for “leaking classified information that aids terrorists.”

Drake’s prosecution had lasting effects. When Edward Snowden discovered NSA mass surveillance programs in 2013, he explicitly cited Drake’s experience as the reason he didn’t go through “proper channels.” Snowden had watched what “proper channels” got Drake: years of legal battle, career destruction, and Espionage Act charges that could have resulted in decades in prison. The government’s own aggressive prosecution of whistleblowers created the conditions where future whistleblowers would bypass internal reporting entirely.

This pattern repeated with every major disclosure:

• Abu Ghraib photos (2004): Neoconservative response focused not on the torture but on who leaked the photos

• CIA black sites (2005): Washington Post reporting condemned as “revealing methods to the enemy”

• SWIFT banking surveillance (2006): New York Times accused of “treason” for publishing the story

The message: exposing government wrongdoing is a greater offense than committing the wrongdoing. This inverted accountability—where transparency itself becomes the crime—created the framework for Trump to declare every unfavorable leak “criminal” and every whistleblower a “traitor.”

3.4 The Press as Enemy

Perhaps no neoconservative rhetorical strategy presaged Trump more directly than the systematic delegitimization of investigative journalism.

In June 2006, President Bush called the New York Times‘ disclosure of the SWIFT financial surveillance program “disgraceful,” stating that revealing it “does great harm to the United States of America.” Vice President Cheney went further, suggesting the journalists involved should be prosecuted under the Espionage Act.

Gabriel Schoenfeld, a senior editor at Commentary magazine (sister publication to The Weekly Standard), published a lengthy analysis titled “Has the New York Times Violated the Espionage Act?” His conclusion: yes, and the government should prosecute.

The Weekly Standard ran multiple pieces with similar themes:

• “The Criminal Press” (2006)

• “When Journalism Becomes Espionage” (2005)

• “The New York Times’ War on America” (2006)

The argument: when the press publishes classified information revealing executive branch misconduct, they are not performing a democratic function—they are committing a crime and aiding enemies.

This framework made it logically impossible to hold the executive accountable through traditional democratic mechanisms. If Congressional oversight is “partisan obstruction,” whistleblowing is “treason,” and investigative journalism is “espionage,” then what legitimate method remains for checking executive power?

None. Which is the point.

3.5 The Creation of “Unpatriotic Conservatives”

When conservative intellectuals criticized the Iraq War or questioned expanded executive power, they weren’t engaged on the merits—they were expelled from the movement.

Andrew Bacevich, a conservative military historian and Iraq War critic, was labeled “unpatriotic” by neoconservative publications. Bruce Fein, a conservative constitutional scholar who criticized Bush’s signing statements, was marginalized. Even libertarian-leaning conservatives like Ron Paul were treated as beyond the pale.

The pattern: defining conservatism itself as support for expansive executive power during Republican administrations. If you questioned that power, you weren’t really conservative—you were giving aid and comfort to liberals and terrorists.

This rhetorical enforcement mechanism created strong incentives for conservative intellectuals, lawyers, and politicians to support executive expansion regardless of constitutional concerns. Criticism meant professional isolation and accusations of disloyalty.

Trump inherited this enforcement mechanism. When Republicans like Mitt Romney, Liz Cheney, or Adam Kinzinger voted to impeach or criticized Trump’s conduct, they weren’t engaged on substance—they were expelled as “RINOs” and “Never Trumpers.”

The neoconservatives pioneered loyalty enforcement. Trump simply lowered the bar for what triggered expulsion.

3.6 The Destruction of Shared Reality

The cumulative effect of delegitimizing every accountability mechanism is the destruction of shared reality necessary for democratic self-governance.

If the President can declare:

• Congressional oversight = “partisan witch hunts undermining national security”

• Whistleblowers = “traitors leaking classified information to help enemies”

• Investigative journalism = “criminal espionage aiding terrorists”

• Critical think tanks = “unpatriotic undermining of America”

• Inspectors general = “deep state bureaucrats pursuing partisan vendettas”

...then there is no institutional method for citizens to learn when the President is abusing power. Every source of information becomes tainted. The President becomes the sole arbiter of truth.

This is the epistemic foundation of authoritarianism: not just concentrating power, but concentrating the authority to define reality itself.

When Trump calls CNN “fake news” and the Washington Post “enemy of the people,” he’s not inventing new rhetoric—he’s using neoconservative templates with slightly different targets. When he declares impeachment a “hoax” despite documented evidence, he’s applying the epistemic framework Kristol’s movement established: if the evidence comes from delegitimized sources, it can be dismissed regardless of substance.

The neoconservatives built the machine for destroying shared reality. Trump just changed what got fed into it.

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Part IV: William Barr—The Connective Tissue

4.1 From Bush I to Trump

William Barr serves as the living embodiment of continuity between neoconservative legal theory and Trumpian authoritarianism. As Attorney General under George H.W. Bush (1991-1993), Barr defended expansive executive power and controversial pardons. As Attorney General under Trump (2019-2020), Barr articulated a maximalist view of presidential authority that delighted the Federalist Society.²⁵

4.2 The Barr Doctrine: Executive Supremacy

In a November 2019 speech to the Federalist Society, Barr argued:

“The fact of the matter is that, in waging a disciplined counter-insurgency against the Executive branch, the Left is willing to use any means necessary to gain momentary advantage...The cost of this constant harassment is real.”²⁶

Note the framing: Congressional oversight = “counter-insurgency.” Demanding accountability = “harassment.”

This is neoconservative legal theory in its purest form—the President as embattled warrior against illegitimate constraints, Congress as obstacle rather than co-equal branch.

4.3 Operationalizing Presidential Impunity

As Trump’s Attorney General, Barr:

• Mischaracterized the Mueller Report before its release, framing Trump as exonerated when the report explicitly declined to exonerate²⁷

• Intervened in Roger Stone sentencing, overruling career prosecutors to recommend leniency for a Trump ally²⁸

• Ordered Lafayette Square cleared of protesters so Trump could hold a photo op²⁹

• Declared the Durham investigation would review the origins of the Russia investigation, signaling that investigating the President would itself be investigated³⁰

Each action demonstrated the principle: presidential loyalty matters more than institutional rules.

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Part V: The Direct Lineage—Trump’s Exploitation of Neoconservative Infrastructure

5.1 The Legal Foundation: Emergency Economic Powers

The International Emergency Economic Powers Act (IEEPA), enacted in 1977, grants the President authority to declare national emergencies and wield economic powers in response. Originally designed for genuine foreign policy crises—hostage situations, wars, financial threats—the Act has minimal Congressional oversight and no sunset provisions.

Pre-9/11, IEEPA was used sparingly: Iran hostage crisis (1979), Libya sanctions (1986), Colombia drug cartels (1995). Post-9/11, the neoconservative approach transformed it into routine governance tool. The Bush administration used IEEPA to freeze assets, impose sanctions, and restructure financial surveillance without Congressional input.

Critical features that enable exploitation:

• Presidential determination is effectively unreviewable: Courts defer to executive assessment of “national emergency”

• No time limit: Emergency declarations can last indefinitely without Congressional renewal

• Broad economic authorities: Asset freezes, transaction prohibitions, financial surveillance

• No requirement to demonstrate imminent threat: “Emergency” can be prospective or general

As of December 2025, there are 42 active national emergency declarations, some dating back decades. This normalization of permanent emergency is direct neoconservative legacy.

5.2 Emergency Powers: From Terrorism to Cartels

January 20, 2025, 12:01 PM EST: President Trump’s first act upon returning to office is signing Executive Order 14157, declaring a national emergency regarding international drug trafficking organizations. The order invokes IEEPA and several other statutory authorities.³¹

The order’s key provisions:

• Declares Mexican cartels, Venezuelan Cartel de los Soles, and transnational gangs represent “unusual and extraordinary threat to national security”

• Authorizes Treasury Department to freeze assets and block transactions

• Directs State Department to pursue Foreign Terrorist Organization designations

• Establishes legal framework treating drug trafficking as national security threat rather than criminal matter

The strategic implication: By framing cartels as national security emergency rather than law enforcement challenge, the order activates military authorities unavailable for normal criminal activity.

5.3 The Designation Pipeline: Creating “Narco-Terrorists”

February 20, 2025: The State Department publishes Federal Register notices designating nine organizations as Foreign Terrorist Organizations (FTOs) under 8 U.S.C. § 1189:³²³³

1. Tren de Aragua (Venezuelan gang)

2. Mara Salvatrucha / MS-13 (transnational gang)

3. Cartel de Sinaloa (Mexico)

4. Cartel de Jalisco Nueva Generación (Mexico)

5. Carteles Unidos (Mexico)

6. Cartel del Noreste (Mexico)

7. Cartel del Golfo (Mexico)

8. La Nueva Familia Michoacana (Mexico)

November 16, 2025: Additional designation of Cartel de los Soles (Venezuela).³⁴

5.4 What FTO Designation Actually Does

Foreign Terrorist Organization designation is not symbolic. It triggers multiple legal authorities under Title 8 (Immigration), Title 18 (Crimes), Title 22 (Foreign Relations), and Title 50 (War Powers):³⁵

Immigration consequences:

• Automatic inadmissibility to United States for members

• Grounds for deportation of non-citizens

• Bars from asylum or refugee status

Criminal liability:

• Providing “material support” becomes federal crime (18 U.S.C. § 2339B)

• “Material support” includes not just weapons but “expert advice,” “training,” “personnel”

• Penalties: up to 20 years imprisonment, life if death results

Financial authorities:

• Asset freezing under IEEPA

• Banks must block transactions

• Designation triggers OFAC sanctions list

Military authorities (the critical piece):

• Members can be classified as “unlawful combatants”

• Subject to military detention rather than criminal arrest

• Can be targeted with lethal military force under law of war principles

• No requirement for criminal charges, arrest warrants, or judicial review

This last category is where designation becomes weaponizable. The legal framework developed for al-Qaeda and ISIS—treating terrorists as military enemies rather than criminals—gets applied to anyone designated FTO.

5.5 Operation Southern Spear: The Infrastructure in Action

September 2, 2025: First confirmed lethal strike. A vessel in the Caribbean is engaged by U.S. military forces. Official Pentagon statement: “neutralized narco-terrorist threat.” Death toll: 7 individuals.

Unlike traditional Coast Guard drug interdiction—where vessels are boarded, suspects arrested, evidence seized for criminal trial—the vessel was struck with military ordnance. All aboard killed. No survivors to be charged. No evidence presented in court. No judicial review.

The legal justification chain:

1. President declares national emergency (IEEPA authority)

2. State Department designates organizations as FTOs (statutory authority)

3. Pentagon determines individuals aboard vessel are FTO members (executive determination)

4. Military force authorized against FTO members under law of war (2001 AUMF analogy + inherent Commander-in-Chief authority)

Each step is executive action with minimal external check. Congress isn’t consulted. Courts don’t review. The process is: declare, designate, determine, destroy.

Timeline of strikes (September-December 2025):

• Sept 2 - Caribbean: 7 deaths - “Narco-terrorist interdiction”

• Sept 15 - Eastern Pacific: 12 deaths - “Associated with Cartel de Sinaloa”

• Sept 28 - Caribbean: 8 deaths - “Material support to FTO”

• Oct 12 - Eastern Pacific: 14 deaths - “Unlawful combatants”

• Oct 26 - Caribbean: 9 deaths - “Non-international armed conflict”

• Nov 8 - Eastern Pacific: 11 deaths - “Lethal kinetic strike”

• Nov 22 - Caribbean: 15 deaths - “Counter-narcoterrorism operation”

• Dec 6 - Eastern Pacific: 13 deaths - “Joint Task Force Southern Spear”

• Dec 22 - Caribbean: 16 deaths - “Ongoing NIAC operations”

As of December 27, 2025: Washington Post reporting documents over 80 deaths in 21 missions as of November 22, with over 100 total deaths reported by late December.³⁶³⁷ Zero arrests, zero trials, zero convictions.

5.6 Legal Concerns Overridden

November 22, 2025: Washington Post investigation reveals that CIA and Pentagon lawyers raised significant concerns about the strikes before they began:³⁸

CIA legal opinion (August 2025, obtained by Post):

• Questioned whether drug trafficking constitutes “armed conflict” under international law

• Noted lack of evidence designees were “enemy combatants”

• Warned strikes could violate law of war principles requiring imminent military threat

• Recommended criminal law enforcement approach

Pentagon JAG analysis (August 2025):

• Expressed concern about applying counter-terrorism authorities to drug interdiction

• Questioned adequacy of intelligence supporting strike decisions

• Noted risk of civilian casualties in Caribbean shipping lanes

• Recommended seeking explicit Congressional authorization

White House response (per Post sources):

• “The President has inherent constitutional authority to defend the nation from threats”

• “The lawyers are being overcautious. These are unlawful combatants, not civilians”

• “We have all the legal authority we need through IEEPA and the FTO designations”

The final decision: proceed with strikes despite legal objections. This mirrors the 2002 torture memos dynamic—lawyers raise concerns, political appointees override them, operations proceed.

5.7 The Survivors

December 27, 2025: Second Washington Post investigation contains perhaps the most damning detail:³⁹

In one November strike, a vessel was engaged and disabled. The strike killed multiple individuals, but several survived. They were recovered by U.S. naval forces, given medical treatment, and... released.

Not arrested. Not charged. Not processed through criminal justice system. Released.

If these individuals were genuinely “unlawful combatants” posing imminent threats warranting lethal military force, why release them? The answer reveals the gap between legal justification and operational reality:

The individuals couldn’t be charged criminally because:

• Evidence was insufficient for prosecution

• No witnesses (the strike killed potential witnesses)

• No narcotics recovered (destroyed in strike)

• Intelligence was likely classified and unavailable for criminal trial

They couldn’t be detained indefinitely because:

• Guantanamo-style detention of drug suspects would be politically explosive

• No ongoing “hostilities” to justify law of war detention

• Courts would likely rule detention unlawful

So they were released. The strike was justified as military necessity against imminent threats. But the survivors were treated as... nothing. Not criminals. Not combatants. Just people who happened to survive a missile strike.

This operational reality undermines the entire legal framework. If the targets don’t warrant arrest and prosecution, they’re not criminals. If they don’t warrant detention, they’re not combatants. If they’re released after being struck, the “imminent threat” justification collapses.

But by then, most of them are dead. And dead people don’t challenge the legal rationale for their killing.

5.8 The Epistemic Problem: How Do We Know Who We’re Killing?

The deepest structural flaw in the designation-to-strike pipeline is epistemic: there is no adversarial process to verify the government’s claims about who the targets are.

In criminal law enforcement, the process itself serves as verification:

1. Investigation gathers evidence

2. Grand jury reviews evidence for probable cause

3. Defendant receives charges and evidence in discovery

4. Defense attorney challenges evidence and government witnesses

5. Jury or judge weighs evidence adversarially

6. Conviction requires proof beyond reasonable doubt

7. Appeals process reviews for errors

Each step creates opportunity to discover mistakes: misidentification, faulty intelligence, incorrect assumptions. The system is designed to prevent false positives because the stakes are high.

In the designation-to-strike process:

1. Executive branch determines target is associated with designated organization

2. Executive branch determines military force is appropriate

3. Executive branch conducts strike

4. Executive branch announces result

There is no adversarial review. No external verification. No process to test whether the initial determination was accurate.

The problem isn’t just that innocent people might die. It’s that there’s no mechanism to discover whether they were innocent.

5.9 Historical Precedents for Misidentification

This isn’t theoretical. The War on Terror produced extensive documentation of targeting failures:

Drone Strike Misidentification:

• February 2010: Predator strike in Uruzgan, Afghanistan killed 23 civilians misidentified as Taliban

• September 2015: Kunduz hospital strike killed 42 civilians; facility misidentified as Taliban position

• August 2021: Kabul strike killed 10 civilians including 7 children; targets misidentified as ISIS-K

In each case, the government initially claimed legitimate targets. Only later investigation—often by journalists, not internal review—revealed the misidentification.

Guantanamo Detainees: Of 779 individuals detained at Guantanamo Bay, 732 have been released without charge. Many were held for years based on faulty intelligence: wrong place, wrong time, turned in by rivals for bounty payments, generic accusations without evidence.

The government initially claimed all were “the worst of the worst.” External review revealed that many were low-level fighters, victims of circumstance, or completely innocent.

No-Fly List Errors: The terrorist watch list has repeatedly included misidentified individuals: Senator Ted Kennedy (2004), Representative John Lewis (multiple occasions), infants and children with names similar to suspects. These errors only came to light because U.S. citizens could challenge their inclusion.

The common pattern: government determination without adversarial review produces false positives. The more serious the consequence, the more critical external verification becomes.

5.10 The Autoritarian Drift: From Verification to Trust

The neoconservative response to targeting concerns was always: “Trust us. We have intelligence you can’t see. We’re careful. We’re the good guys.”

This is the fundamental move from democratic accountability to authoritarian governance: replacing verifiable processes with trust in authority.

When Bill Kristol defended the torture program, his argument wasn’t “here’s evidence it worked” or “here’s how we ensured only guilty people were subjected to it.” His argument was: “These are serious people making difficult decisions to protect America. We should trust their judgment.”

When The Weekly Standard defended warrantless surveillance, the argument wasn’t “here’s the oversight process that prevents abuse.” It was: “The threat is real. The President needs flexibility. Trust the professionals.”

When defenders of drone strikes faced evidence of civilian casualties, the response wasn’t “here’s our targeting methodology and accuracy rate.” It was: “This is war. These are necessary decisions. Trust that we’re being careful.”

The pattern: replacing institutional verification with appeals to authority.

This works—temporarily—when the authority is trusted. It catastrophically fails when someone untrustworthy gains power and inherits all the unverified authorities.

5.11 The Current Danger: No Process for Challenging Designations

Under Operation Southern Spear, there is no mechanism for anyone to challenge whether someone killed was actually a cartel member.

The individuals are dead. There’s no trial where evidence would be presented. Their families have no standing to sue—they’re foreign nationals, killed in international waters or foreign territorial waters, under military action the government claims is lawful.

Even if families could sue, the government would invoke state secrets privilege: “We can’t reveal the intelligence that identified them as terrorists without compromising sources and methods.”

The courts would likely defer to executive determinations about national security threats—the same deference that enabled every other post-9/11 expansion.

Result: The government’s characterization is unverifiable and unchallengeable.

If the boat struck in September was carrying drugs, we have no way to know—the drugs went down with the boat. If the individuals aboard were cartel members, we have no way to verify—they’re dead, and the government won’t reveal intelligence. If some were innocent fishermen in the wrong place, we have no mechanism to discover the error.

The only “evidence” is the Department of Defense press release saying “narco-terrorists neutralized.”

5.12 The Slippery Slope Is Already Happening

Drug cartels today. What about tomorrow?

The legal mechanism is established: declare emergency, designate organization as terrorist, authorize military force, conduct strikes, announce success. No external verification required.

What prevents the next president from designating:

• Climate protest groups as “eco-terrorists” threatening critical infrastructure?

• Voting rights organizations as “election terrorists” threatening democracy?

• Labor unions as “economic terrorists” harming national security?

• Journalists investigating classified programs as “intelligence terrorists” aiding enemies?

The answer: Nothing structural prevents it. Only the current president’s restraint.

And we’ve just established that presidential restraint is not a reliable safeguard.

This is the authoritarian infrastructure the neoconservatives built: power concentrated in executive determination, with no meaningful process for external verification, defended by claims that “we’re the good guys, trust us.”

It worked when people trusted Bush and Cheney (if they did). It’s catastrophically failing with Trump. And it will remain catastrophically vulnerable until Congress dismantles it.

5.13 The Venezuela Dimension

The designation of Cartel de los Soles represents a particularly dangerous expansion. Unlike Mexican cartels, Cartel de los Soles operates with the explicit backing of the Venezuelan government. The U.S. government alleges that senior Venezuelan officials—including President Nicolás Maduro—are directly involved in the organization.

This creates a scenario where:

1. Venezuelan government officials are designated as terrorists

2. U.S. military has authorization to use force against designated terrorists

3. Therefore, U.S. military operations against Venezuelan government officials would be “legal” under domestic law

Venezuelan government response (November 25, 2025): condemned the designation as “a ridiculous fabrication” and a pretext for military intervention.⁴⁰

The risk: what began as drug interdiction could escalate into military conflict with a sovereign nation. Not because Congress authorized war. Not because Venezuela attacked the United States. But because the executive designated Venezuelan officials as “terrorists” and used that designation to activate military authorities.

This is the 2001 AUMF problem on steroids: once you accept that the President can designate threats and use military force based solely on that designation, there’s no limiting principle. Any non-state actor becomes targetable. Any official associated with that actor becomes targetable. Any nation harboring them becomes a legitimate military target.

The neoconservatives built this framework for al-Qaeda. Trump is applying it to hemispheric politics.

5.14 Congressional Silence

As of December 28, 2025, Congress has held zero hearings on Operation Southern Spear. No oversight committees have subpoenaed documents. No War Powers Resolution challenges have been filed. No emergency powers reviews have been initiated.

The 2001 AUMF took three years before Congressional skepticism emerged. The torture program operated for four years before oversight began. The NSA surveillance continued for four years before exposure.

Operation Southern Spear is four months old. Over 100 people dead. And Congress is silent.

This is the institutional decay the neoconservatives enabled: Congress has become so habituated to executive military action that even extrajudicial killings in the Western Hemisphere trigger no oversight response.

The War Powers Resolution requires the President to notify Congress within 48 hours of introducing forces into hostilities. Trump has provided no such notification—he doesn’t consider these “hostilities,” they’re “counter-terrorism operations.”

The 1973 Act requires Congressional authorization for operations continuing beyond 60 days. These operations have continued for 120+ days with zero Congressional debate about authorization.

The norms the neoconservatives eroded—requiring Congressional input for military action, demanding justification for lethal force, insisting on judicial review for targeting decisions—are so thoroughly abandoned that over 100 deaths barely register as noteworthy.

5.15 Presidential Immunity: The Culmination

July 1, 2024: The Supreme Court rules in Trump v. United States that presidents have absolute immunity from criminal prosecution for “official acts.”⁴¹

The decision’s logic mirrors neoconservative arguments from the torture memos: presidential action in furtherance of core constitutional functions exists in a different legal category than ordinary executive action. Chief Justice Roberts, writing for the 6-3 majority, emphasizes the need for “energetic” executive action—the exact language Kristol and Cheney used to justify post-9/11 expansions.

December 23, 2025: In Trump v. Illinois (No. 25A443), the Supreme Court denies (6-3) the Trump administration’s emergency request to deploy federally activated National Guard troops in Illinois while litigation proceeds.⁴²

The immediate context: Illinois obtained a lower-court order blocking Trump from deploying National Guard units to protect ICE agents conducting immigration raids in Chicago. The state argued this violated the Posse Comitatus Act’s prohibition on using military for domestic law enforcement. Trump sought an emergency stay from the Supreme Court to allow deployment while the case continues.

The Court’s 6-3 denial means the deployment remains blocked for now. This was an interim ruling on the emergency docket, not a final merits decision about the full scope of presidential power.

However, Justice Kavanaugh’s concurrence reveals the legal architecture Trump is attempting to activate. Kavanaugh notes that the Court’s order “does not address” whether the Insurrection Act applies, “does not purport to disturb” long-asserted Article II “protective power” theories regarding military deployment, and leaves unresolved the statutory interpretation questions under 10 U.S.C. §12406(3).

Three justices—Alito, Thomas, and Gorsuch—were ready to grant the stay and allow deployment. The vote was 6-3 against Trump, but these three justices thought the government had shown sufficient authority to proceed with military deployment in an American city pending litigation.

The critical point: Trump’s legal theory is on the table. The arguments have been presented. The infrastructure exists for him to make this claim. The Court blocked it this time, but the pathways remain open for future attempts—either in this case on the merits, or in future cases testing similar boundaries.

During the emergency proceedings, Trump’s attorneys argued that protecting federal officers performing their duties is not “law enforcement” but rather “executive protection” of federal operations, and thus doesn’t violate Posse Comitatus. They further argued that such deployment would be an “official act” covered by absolute immunity from Trump v. United States, meaning even if force were used against protesters, the President couldn’t be prosecuted unless Congress first impeached and convicted him.

The practical danger: Even though the Court denied the stay, the legal framework for military deployment in American cities is being actively litigated. If Trump’s theory eventually succeeds—if five justices accept that the President has inherent authority to deploy military for “protection” of federal operations—that becomes constitutional precedent with all the permanence problems outlined below.

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SIDEBAR: Trump v. Illinois (Dec. 23, 2025) — What the Supreme Court Actually Held

This was an emergency “stay” request, not a final ruling on the merits. Illinois obtained a temporary restraining order (TRO) blocking the deployment of federally activated National Guard troops in Illinois; the Seventh Circuit allowed the Guard to remain federalized but kept the bar on deployment. The Trump administration asked the Supreme Court to pause (stay) that TRO while the lawsuit continues. The Court denied that request.⁴³

What the Court Did Decide:

• The President relied on 10 U.S.C. §12406(3), which allows federalizing the Guard if he is “unable with the regular forces to execute the laws.”⁴⁴

• The government argued “regular forces” could mean federal civilian law enforcement (e.g., ICE / Federal Protective Service). The Court said “regular forces” likely means the regular U.S. military.⁴⁵

• Because §12406(3) (as the Court reads it) turns on the military’s ability to “execute the laws,” it likely applies only where the military could legally do that—something the Court calls exceptional given the Posse Comitatus Act.⁴⁶

• At this preliminary stage, the government failed to identify a lawful source of authority that would allow the military to “execute the laws” in Illinois (and it did not invoke a statutory exception to Posse Comitatus). Therefore, the government didn’t carry its burden for emergency relief, and the stay was denied.⁴⁷

What the Court Did NOT Decide:

• Not a merits ruling: The underlying lawsuit continues.⁴⁸

• The Court explicitly did not address whether (or how) courts may review presidential findings under §12406(3) or other statutes.⁴⁹

• Justice Kavanaugh’s concurrence stressed the decision could rest on a narrower point (that the President had not yet made the statutorily required “unable with the U.S. military” determination) and noted the Court’s order does not address the Insurrection Act.⁵⁰

• Kavanaugh also said the opinion does not purport to disturb the President’s long-asserted Article II “protective power” claims regarding the regular armed forces—a point raised to show what remains open, not a holding on the merits.⁵¹

This sidebar preempts the predictable mischaracterization: “SCOTUS approved troops in cities.” It didn’t. It refused to lift the deployment block on an emergency basis, while signaling what legal pathways remain contested.

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5.16 The Structural Danger of Judicial Precedent

Supreme Court decisions present a uniquely dangerous form of executive power expansion because they operate as de facto constitutional amendments while requiring only five votes instead of the supermajorities required for actual constitutional change.

The Constitutional Amendment Process (Article V):

• Requires 2/3 vote in both House and Senate (or convention called by 2/3 of states)

• Requires ratification by 3/4 of state legislatures (38 states)

• Designed to be deliberately difficult, ensuring only changes with overwhelming consensus become permanent

The Supreme Court Precedent Process:

• Requires 5 votes from 9 justices

• No state ratification required

• No Congressional supermajority required

• Creates constitutional interpretation with similar permanence to actual amendments

The asymmetry is stark: To amend the Constitution to explicitly grant presidents immunity from prosecution would require 2/3 of Congress and 3/4 of states to agree. To achieve the same result through judicial precedent requires 5 justices.

5.17 The Permanence Problem

Once established, Supreme Court precedent is extremely difficult to overturn:

Legislative reversal: Impossible for constitutional interpretations. Congress can only reverse statutory interpretations, and even then the Court can strike down the new statute as unconstitutional.

Executive reversal: The President cannot overturn Supreme Court decisions. Executive orders cannot override constitutional precedent.

Judicial reversal: Requires either:

1. Future Supreme Court explicitly overturning the precedent (rare and typically takes decades)

2. Constitutional amendment overriding the Court’s interpretation (requires Article V supermajorities)

The doctrine of stare decisis (respect for precedent) means even justices who disagree with a prior decision often feel bound to uphold it for institutional stability reasons.

Practical result: Supreme Court expansions of presidential power become functionally permanent baselines that future presidents inherit and build upon.

5.18 Comparing Reversibility of Executive Power Expansions

EXECUTIVE ORDERS

• How Established: President signs

• How Reversed: Next president revokes

• Difficulty: Easy (1 signature)

REGULATIONS

• How Established: Agency rulemaking

• How Reversed: Agency rescinds through APA process

• Difficulty: Moderate (notice & comment)

STATUTES

• How Established: Congressional majority

• How Reversed: Congressional majority repeal

• Difficulty: Moderate (legislation)

SUPREME COURT DECISIONS

• How Established: 5 justice votes

• How Reversed: New SCOTUS decision OR Constitutional amendment

• Difficulty: Extremely difficult (decades or supermajorities)

The neoconservative strategy: Get favorable Supreme Court precedents, creating permanent expansions that persist across administrations regardless of which party controls elected branches.

The AUMF? Congress could repeal it tomorrow with simple majorities.

The IEEPA emergency powers? Congress could amend the statute with regular legislation.

Presidential immunity from Trump v. United States? Effectively permanent unless we amend the Constitution or wait decades for Court composition to change enough for reversal.

Military deployment authority if Trump’s theory in Trump v. Illinois eventually succeeds on the merits? Same permanence problem—which is why the case is so dangerous even though the Court denied the emergency stay.

5.19 The One-Vote-Away Problem

This structural permanence makes narrow Supreme Court decisions especially dangerous. When the Court rules 5-4:

• 5 justices establish what becomes constitutional baseline for all future presidents

• 4 justices dissent, but their interpretation is legally irrelevant

• One vote difference creates permanent constitutional change

The emergency stay in Trump v. Illinois was denied 6-3—but three justices were ready to allow military deployment in an American city while litigation proceeds. If this case (or a future case testing similar theories) eventually reaches a merits decision and splits 5-4 in favor of presidential authority, that becomes permanent constitutional law unless:

1. Court composition changes AND future case provides opportunity to revisit AND new majority is willing to overturn precedent (could take 20+ years)

2. Constitutional amendment explicitly prohibits such deployment (requires 2/3 + 3/4 supermajorities)

Neither is likely. A 5-4 decision approving Trump’s legal theory would become permanent expansion of presidential power.

5.20 Historical Pattern: Ratchet, Not Pendulum

Executive power expansions via Supreme Court precedent tend to ratchet upward, not swing back:

Korematsu v. United States (1944): Upheld Japanese internment. Took 74 years for Court to explicitly repudiate (2018), and even then only dicta in unrelated case, not formal overturning.

United States v. Nixon (1974): Established executive privilege. Never overturned, still cited as precedent.

Hamdi v. Rumsfeld (2004): Permitted indefinite detention of U.S. citizens as enemy combatants. Still precedent.

Boumediene v. Bush (2008): Granted Guantanamo detainees habeas rights. But detention authority from Hamdi remains.

The pattern: Expansions of executive power become permanent baseline. Occasional decisions limiting executive power are distinguished or narrowed in subsequent cases.

Why? Because future presidents inherit expanded authorities and defend them. Future Justice Departments argue for broad presidential power regardless of which party controls the executive. The institutional incentive is toward executive aggrandizement.

5.21 The Neoconservative Court Strategy

The neoconservative movement understood this dynamic and explicitly pursued a judicial strategy alongside legislative and executive strategies.

The Federalist Society, founded 1982, cultivated conservative legal talent with specific focus on executive power theories. The Society’s influence:

• Provided judicial nominees for Reagan, Bush I, Bush II, Trump administrations

• All six conservative justices currently on Supreme Court are Federalist Society members or have deep ties

• Network includes lower court judges, attorneys general, White House counsels, OLC lawyers

The strategy was deliberate:

1. Develop executive power theories in law reviews and think tanks

2. Staff executive branch with lawyers committed to those theories

3. Litigate cases to establish favorable precedents

4. Appoint judges who will uphold those precedents

5. Lock in expansions that survive changes in political control

William Barr (Attorney General under Bush I and Trump) is Federalist Society member. John Yoo (torture memos) is Federalist Society member. Steven Calabresi (Unitary Executive theorist) co-founded Federalist Society. The legal architects of neoconservative power expansion were networked, coordinated, and strategic.

Bill Kristol’s role: As intellectual champion and political organizer, Kristol supported this judicial strategy while focusing public attention on foreign policy. He defended Bush judicial nominees, praised Federalist Society influence, and advocated for judges who would defer to executive power.

The result: A Supreme Court that has systematically expanded presidential authority through precedents that are now functionally permanent constitutional baselines.

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Part VI: Kristol’s Selective Memory

6.1 The “Never Trump” Reinvention

Following Trump’s 2016 election, Bill Kristol became one of the most prominent “Never Trump” conservatives, co-founding The Bulwark in 2018 as an anti-Trump publication. He has written extensively about Trump’s authoritarian tendencies, his attacks on democratic norms, his contempt for the rule of law.

All true. All important.

And all profoundly incomplete without acknowledgment of who built the tools Trump uses.

6.2 What Kristol Won’t Say

In an October 2025 interview at Kenyon College, Kristol stated: “We underestimated the warning signs. We were too complacent about democratic norms eroding.”⁵²

Notice what’s missing: any recognition that he didn’t “underestimate” anything—he actively built it. The legal theories, emergency powers, and executive expansions weren’t “eroding”—they were being deliberately constructed, twisted, and weaponized. And “we” doesn’t mean “we the people”—it means “we the neoconservative movement.” The movement Kristol led.

The guardrails didn’t passively erode. They were actively dismantled by people who thought they knew better than the Founders.

6.3 Kristol’s Silence on Trump’s Exploitation of Neoconservative Infrastructure

Kristol has been vocal about Trump’s authoritarian tendencies—his attacks on the press, his disregard for democratic norms, his efforts to overturn the 2020 election. All legitimate criticisms.

But when Trump uses the specific infrastructure Kristol built? Silence.

On the cartel designations and military strikes: No public statement acknowledging that the designation-to-military-force pipeline was a neoconservative creation. No recognition that the IEEPA authorities Trump invoked were the same ones the Bush administration normalized. No acknowledgment that treating designated groups as military targets rather than criminal defendants was a framework developed during the War on Terror.

On Trump’s attempted deployment in Chicago: No reflection on how the “protecting federal operations” theory connects to the “inherent presidential authority” doctrines neoconservatives championed. No recognition that the legal argument Trump made—that the President has authority to deploy military forces to protect federal personnel—builds directly on theories Kristol’s movement developed.

On presidential immunity: No acknowledgment that the Trump v. United States decision’s logic mirrors the torture memos’ reasoning—that presidential action in furtherance of core constitutional functions exists in a different legal category than normal executive action.

Kristol critiques Trump for using these powers. But he won’t acknowledge that he built them.

The closest Kristol has come to addressing the infrastructure is defending it as necessary for the War on Terror while insisting Trump is “abusing” it. This fundamentally misunderstands how architecture works: once you build tools for “good purposes,” bad actors will repurpose them for bad purposes. The tools don’t care about your intentions.

6.4 The Fundamental Evasion

Kristol’s critique of Trump focuses on who wields power, not the architecture that concentrates it. He opposes Trump having unilateral war authority but supported Bush having it. He condemns Trump’s attacks on the press but defended the Bush administration labeling journalists as effectively treasonous. He warns about authoritarian drift while refusing to acknowledge that he laid the track.

This is not hypocrisy in the conventional sense. It’s the failure to recognize that architecture doesn’t care about intent.

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Part VII: Conclusion—The Frankenstein Problem

Mary Shelley’s Frankenstein is often misread as a story about a monster. It’s actually a story about a creator who abandons responsibility for what he builds.

Victor Frankenstein creates his creature with noble intentions—to conquer death, to advance science, to benefit humanity. When the creature behaves monstrously, Frankenstein is horrified. But he never accepts that the creature’s nature was shaped by how it was built and abandoned.

Bill Kristol and the neoconservative movement built institutional infrastructure with noble intentions—to protect America, to defeat terrorism, to restore executive energy. When Trump uses that infrastructure for authoritarian ends, Kristol is horrified.

But he won’t accept that the infrastructure’s exploitation was inevitable once it was built.

The Core Lesson

You cannot build tools for “good people” and expect bad people not to use them.

The AUMF doesn’t ask whether you have noble intentions before granting war powers. The terrorist designation process doesn’t verify your character before authorizing military force. Presidential immunity doesn’t depend on whether you’re using it for democratic purposes.

Architecture is neutral about intent. It only cares about authority.

The Founders understood this. They designed for bad actors—for ambitious presidents, corrupt legislators, captured judges. They built in friction, overlapping authorities, required super-majorities, sunset clauses, impeachment, regular elections.

Kristol and the neoconservatives looked at those constraints and saw inefficiency. They thought: If we just give smart, principled people the tools they need, we can accomplish so much.

They forgot that smart, principled people don’t stay in power forever. Eventually, someone willing to exploit every available mechanism will gain office. And when that happens, the only thing protecting democracy is the architecture.

The Continuing Vulnerability

As of December 2025:

• The 2001 AUMF remains in force, 24 years after enactment

• Emergency economic powers require no Congressional renewal

• The terrorist designation process has no meaningful judicial review

• Presidential immunity doctrine shields “official acts” from prosecution

• War Powers Resolution has never been enforced

• Inspectors General serve at presidential pleasure

• Signing statements allow presidents to declare laws they’ll ignore

This infrastructure doesn’t disappear when Trump leaves office. It’s permanent until Congress dismantles it. And every day it exists, it remains available for the next authoritarian willing to use it.

What Reform Requires

Dismantling the neoconservative architecture requires systematic legislative action:

Emergency Powers Reform:

• All emergency declarations sunset in 30 days unless Congress explicitly renews

• No emergency can last longer than 180 days without new Congressional authorization

• Presidents must certify quarterly that emergency conditions persist

War Powers Restoration:

• Repeal or sunset the 2001 AUMF

• New military operations require Congressional authorization within 60 days

• War Powers Resolution enforcement mechanisms with standing for Congressional suit

Designation Process Judicial Review:

• Terrorist and emergency designations subject to adversarial court review

• Burden on government to demonstrate designation meets statutory criteria

• Designated parties have right to challenge designation

Inspector General Independence:

• IGs investigating executive branch cannot be removed by President

• Removal requires cause with independent judicial review

• Mandatory reporting to full Congressional committees, not just party leadership

Presidential Immunity Limits:

• Constitutional amendment clarifying that presidents are subject to criminal law

• Alternatively, statute creating independent prosecutorial authority for executive misconduct

• Toll statute of limitations while president holds office

These are achievable reforms. They require political will, but they don’t require constitutional conventions or impossibly high bars.

The question is whether Americans will demand them before the next crisis.

The Irony

Bill Kristol warns about Trump’s authoritarianism while opposing the structural reforms that would actually prevent it. He criticizes Trump’s use of executive power while defending the legal theories that justify it. He condemns Trump’s attacks on democratic norms while refusing to acknowledge his role in normalizing those attacks.

He wants Trump constrained. But he doesn’t want the presidency constrained.

That’s not a position. That’s a preference for who sits in the chair.

And preferences don’t protect democracy. Architecture does.

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References

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This analysis is published as a companion to “The Architecture of Executive Power: How the War on Terror Built the Authoritarian Toolkit”

1. Washington Post, "White House blew past legal concerns in deadly strikes on suspected drug boats," November 22, 2025; Washington Post, "The U.S. sank the alleged narco-terrorists' boat - and let them go," December 27, 2025.

2. PBS Frontline, "Interviews - William Kristol | The War Behind Closed Doors," accessed December 27, 2025, https://www.pbs.org/wgbh/pages/frontline/shows/iraq/interviews/kristol.html

3. Clinton Presidential Library, "Project for a New American Century (PNAC)," accessed December 27, 2025, https://clinton.presidentiallibraries.us/items/show/48797

4. Wikipedia, "Project for the New American Century," accessed December 27, 2025, https://en.wikipedia.org/wiki/Project_for_the_New_American_Century

5. William Kristol's role as public advocate and political organizer for neoconservative foreign policy is documented through his founding of The Weekly Standard (1995), co-founding PNAC (1997), and extensive testimony and public commentary advocating for expansive executive authority during the Bush administration.

6. Wikipedia, "John Yoo," accessed December 27, 2025, https://en.wikipedia.org/wiki/John_Yoo

7. Steven Calabresi & Christopher Yoo, "The Unitary Executive During the Second Half-Century," Harvard Journal of Law & Public Policy 26, no. 3 (2003): 667-801

8. New York Times, "Trump Fires Inspector General Who Handled Ukraine Complaint," April 4, 2020.

9. American Bar Association Task Force on Presidential Signing Statements, "Report on Presidential Signing Statements" (2006).

10. Government Accountability Office, "Decision: Office of Management and Budget—Withholding of Ukraine Security Assistance," January 16, 2020, B-331564.

11. Stephanie Savell, "The 2001 Authorization for Use of Military Force: A Comprehensive Look at Where and How It Has Been Used," Costs of War (Watson Institute, Brown University), December 14, 2021, https://costsofwar.watson.brown.edu/sites/default/files/papers/Costs-of-War_2001-AUMF.pdf

12. The Weekly Standard, various editorials 2002-2008 advocating for global War on Terror framework.

13. Washington Post, “White House blew past legal concerns in deadly strikes on suspected drug boats,” November 22, 2025

14. Dick Cheney, interview on Meet the Press, December 21, 2008.

15. The White House, Executive Order 14157, "Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists," January 20, 2025.

16. Authorization for Use of Military Force, Pub. L. 107-40, September 18, 2001, https://www.govinfo.gov/content/pkg/PLAW-107publ40/html/PLAW-107publ40.htm

17. Testimony of William Kristol, Senate Foreign Relations Committee, February 7, 2002, https://avalon.law.yale.edu/sept11/kristol.asp

18. Savell, "The 2001 Authorization for Use of Military Force."

19. U.S. Department of Justice, Office of Legal Counsel, "Memorandum for Alberto R. Gonzales... Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A," August 1, 2002, https://www.justice.gov/sites/default/files/olc/legacy/2010/08/05/memo-gonzales-aug2002.pdf

20. The Weekly Standard, "The CIA Interrogation Debate," December 2007.

21. New York Times, "Bush Lets U.S. Spy on Callers Without Courts," December 16, 2005.

22. Dick Cheney, various public statements 2005-2006 defending NSA surveillance program.

23. The Weekly Standard, Gabriel Schoenfeld, "Has the New York Times Violated the Espionage Act?" March 2006.

24. PolitiFact, "CNN's Tapper: Obama has used Espionage Act more than all previous administrations combined," January 10, 2014, https://www.politifact.com/factchecks/2014/jan/10/jake-tapper/cnns-tapper-obama-has-used-espionage-act-more-all-/

25. William Barr, speech to the Federalist Society, November 15, 2019.

26. William Barr, speech to the Federalist Society, November 15, 2019.

27. William Barr, Letter to Congress summarizing Mueller Report, March 24, 2019.

28. Washington Post, "Barr intervenes in Stone case, Justice Department will seek shorter sentence," February 11, 2020

29. Department of Interior Inspector General, "Review of U.S. Park Police Actions at Lafayette Park," June 2021.

30. John Durham investigation announcement, May 2019

31. The White House, Executive Order 14157, January 20, 2025, https://www.whitehouse.gov/presidential-actions/2025/01/designating-cartels-and-other-organizations-as-foreign-terrorist-organizations-and-specially-designated-global-terrorists/

32. U.S. Department of State, "Designation of International Cartels," February 20, 2025, https://www.state.gov/designation-of-international-cartels

33. U.S. Department of State, "Foreign Terrorist Organization Designations of Tren de Aragua, Mara Salvatrucha..." Federal Register, February 20, 2025, https://www.federalregister.gov/documents/2025/02/20/2025-02873

34. U.S. Department of State, "Terrorist Designations of Cartel de los Soles," November 16, 2025, https://www.state.gov/releases/office-of-the-spokesperson/2025/11/terrorist-designations-of-cartel-de-los-soles

35. 8 U.S.C. § 1189, Legal Information Institute (Cornell Law School), https://www.law.cornell.edu/uscode/text/8/1189

36. Washington Post, “White House blew past legal concerns in deadly strikes on suspected drug boats,” November 22, 2025 (reporting over 80 deaths in 21 missions as of November 22)

37. Washington Post, "The U.S. sank the alleged narco-terrorists' boat - and let them go," December 27, 2025 (reporting over 100 total deaths by late December).

38. Washington Post, "White House blew past legal concerns in deadly strikes on suspected drug boats," November 22, 2025, https://www.washingtonpost.com/national-security/2025/11/22/drug-boats-strikes-cia-legal-concerns/

39. Washington Post, "The U.S. sank the alleged narco-terrorists' boat — and let them go," December 27, 2025, https://www.washingtonpost.com/world/2025/12/27/us-drug-strike-survivors/

40. NPR, “The U.S. labels Venezuela’s Cartel de los Soles as a terrorist group led by Maduro,” December 27, 2025, https://www.npr.org/2025/11/24/g-s1-99000/u-s-label-maduro-cartel-de-los-soles-terror-organization

41. Trump v. United States, 603 U.S. (2024), https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

42. Trump v. Illinois, No. 25A443, Supreme Court of the United States, December 23, 2025, https://www.supremecourt.gov/opinions/25pdf/25a443_ba7d.pdf

43. Trump v. Illinois, No. 25A443, Supreme Court of the United States, December 23, 2025.

44. Trump v. Illinois, No. 25A443, Supreme Court of the United States, December 23, 2025.

45. Trump v. Illinois, No. 25A443, Supreme Court of the United States, December 23, 2025.

46. Trump v. Illinois, No. 25A443, Supreme Court of the United States, December 23, 2025.

47. Trump v. Illinois, No. 25A443, Supreme Court of the United States, December 23, 2025.

48. Trump v. Illinois, No. 25A443, Supreme Court of the United States, December 23, 2025.

49. Trump v. Illinois, No. 25A443, Supreme Court of the United States, December 23, 2025.

50. Justice Kavanaugh, concurring opinion, Trump v. Illinois, No. 25A443, Supreme Court of the United States, December 23, 2025

51. Justice Kavanaugh, concurring opinion, Trump v. Illinois, No. 25A443, Supreme Court of the United States, December 23, 2025

52. Kenyon Collegian, "Bulwark editor Kristol shares Never Trump perspective," October 23, 2025, https://kenyoncollegian.com/news/2025/10/bulwark-editor-kristol-shares-never-trump-perspective/