Presidential War Powers

by Cliopatria

Over at Potus Jeff Kimball has issued this cry of the heart concerning what he considers the silence of historians concerning many of President Bush’s actions. Although I did not agree with everything he said about, and against, President Bush, he has moved me to respond with this comment on presidential war powers, which I am cross-posting, with only slight changes, here.

The grant of power in the Constitution to the president is large, but the power of the office is hardly unlimited, even in time of war. Remember the founders were pretty familiar with Classical political history and could have drawn on it to provide a constitutional mechanism for declaring a dictatorship. They did not do so. The only logical conclusion is that they assumed that the constitutional order would remain fundamentally unchanged in time of war or other emergencies.

OK, that point is important. The grant of powers to the president is not unlimited, either in war or peace. But it does not answer where those powers do stop. Here we do step into shades of gray, but it is not a fog.

In the world of the founders, the president might have to react to events long before a congress could be convened. It is reasonable to assume, as Lincoln did, that the president did have a broad grant of military powers to respond rapidly and in accordance to the challenge faced.

Much of what Lincoln did remains controversial--in particular the suspension of habeas corpus--a power specifically granted to Congress in the constitution. However, if my memory serves, the Congress"legitimized" his use of that power and his other actions after it convened.

This, I think, was what the founders intended. The president should have broad powers indeed, but those powers were to be used in consultation with Congress as soon as possible. Put slightly differently, if Lincoln was right, those powers were intended to protect the nation until the constitutional order could catch up.

In the wiretapping controversy, Bush began the action immediately after 9/11, an emergency situation. He did consult with a few members of Congress at the time. To that point, I think he is within his powers, despite a law on the books that denied the president that power.

However, it is becoming clearer and clearer that instead of working with Congress to provide a constitutional framework for his action, he kept even the chose few in the dark about the expansion of the program.

Here, he clearly crossed the line into illegality. He did so because there was no longer a necessity for rapid and super-secret action. In the context of other actions and considering Bush and Cheney's aim prior to 9/11 to strengthen the president’s ability to act unilaterally, I can only conclude that he is using 9/11 to expand the powers of the president as far as he can push them.

This power grab does pose long-term dangers for the nation. It also has harmed our cause. The administration's defense of torture has damages us badly in terms of propaganda and it has demeaned us morally. The desire to have unchecked power to detain America citizens has forced even conservative jurists to try to impose limits. The same is true with message interception. If the problem really had been the nature of the subpoena system under existing law, he had plenty of time to negotiate a new oversight regime with a friendly Congress. His choice not to do so was a bad one.

All of these--particularly the first two--have reduced the trust that Americans have for him. This weakens him, and it weakens our ability to wage war. And it weakens our democratic republic.

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More Comments:

John H. Lederer - 1/23/2006

http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf

is a pdf copy (I hate pdf on screen) but I have not seen a html copy.

Oscar Chamberlain - 1/22/2006

I thought I would look at the DOJ white paper defending the legality of Bush's actions before I responded. However, I am not finding it on either the DOJ or White House sites.

Can someone lead me to an online copy?

John H. Lederer - 1/22/2006

I think a fair reading of the law and history is that the President has the constitutional power to intercept foreign communications without warrant if doing do in furtherance of gathering intelligence.

The question raised in the current dispute is whether Congress has the power, through enactment of FISA to limit that power. If so, the additional question is whether the AUMF overrides the limits imposed by FISA.(Though, like most, I suspect that a court will take them up in reverse order).

In that context I think phrases such as "power grab" or "expand the powers of the presidency" are not correct formulations. The question is whether Congress can limit the President's historical power, not whether the President can expand it.

William Hopwood - 1/22/2006

Re Greg James Robinson's comment above:

To set the historical record straight it should be noted that the curfew on which the Hirabayshi case was based was not "...directed solely against *citizens* of Japanese ancestry.." nor was it motivated on "racial grounds." The curfew was directed against *persons* of Japanese ancestry of whom almost two-thirds of the *ADULTS* in the prescribed military areas were Japanese subjects, NOT U.S. citizens. As such they were subject to treatment as enemy aliens under long-standing domestic and international law, including but not limited to curfew and internment. In addition, of the ADULT remainder of Japanese ancestry who were U.S. citizens, the majority held dual-citizenship (Japanese and U.S.) and as such were considered a possible threat to national security until proven otherwise.

As for the Korematsu decision upholding the evacuation of persons of Japanese ancestry from military areas on the West Coast, it has not been eclipsed. It still stands. Noteable is a separate concurring opinion in the Korematsu case by Justice Frankurter which seems quite appropriate in the context of the current political controversy over today's tempest in a teapot over the interception of signal intelligence. Justice Frankfurter had this to say:

"The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much a part of the Constitution as provisions looking to a nation at peace...Therefore, the validity of an action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgement of war need by those entrusted with the duty of conducting war as 'an unconstitutional order' is to suffuse a part of the Constitution with an atmostphere of unconstitutionality."

Greg James Robinson - 1/22/2006

I agree with this analysis, except that even the war power of the President in consultation with Congress (sounds like the King-in-parliament) cannot be absolute, either. For one thing, it cannot be exercised in an utterly arbitrarily and discriminatory fashion. As Eric Muller wisely reminds us, the Supreme Court's unanimous decision in Hirabayashi, a curfew directed solely against citizens of Japanese ancestry on racial grounds, presents a dangerous and frightening precedent that has not been touched by the eclipse (if there has been one) of the Korematsu decision.