Saturday, December 17, 2005

Presidential Power and Congressional Resolutions

In the wake of the disclosure of President Bush's authorization for the NSA to eavesdrop on conversations involving American citizens without a warrant--in flat violation of a 1978 statute--the Senate yesterday refused to end a filibuster and re-authorize the Patriot Act. The Republican leadership is threatening to let the act die and blame Democrats at the next election--once again raising the question of whether their war on terror is, more than anything else, an electoral device designed to enshrine Republican rule. Two days ago, the President finally gave in to legal restrictions on interrogation techniques. It is a good time to review exactly what claims the Administration is making for Presidential power.

Their basic premise--the subject of a good, but restrained front page piece in today's New York Times ( --is that the President in wartime has unlimited powers as commander in chief which no legislation or court decision can infringe upon. That was President Nixon's position as well, one for which he was impeached. The position was elaborated, apparently, by John Yoo, a former White House legal counsel who now teaches at the University of California at Berkeley. Yet there is another huge problem created by the Congress just a few days after 9/11--the resolution authorizing the President to begin the war on terror.

The key provision of that resolution reads:

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

Passed just three days after 9/11, this is surely the most sweeping grant of authority ever made to a President, and does, one might argue, permit much (though certainly not all) of what the Administration has been doing, including the kidnapping of suspects overseas and their dispatch to third countries for interrogation. The reason is that, unlike a declaration of war, it does not confine our enemies to any particular state or territory. In addition, it leaves the determination of who is our enemy in this new conflict entirely in the hands of the executive branch. In short, the Congress essentially turned the American military into a worldwide police force authorized to kill or seize anyone, anywhere, provided that the President believes they might commit a terrorist act. The Resolution is an attack on the soveriengty of every nation in the world. And to this the Administration has added (until now, without effective dissent from the Congress), the claim that the President has the right to authorize any form of interrogation not likely to result in imminent organ failure or death.

The resolution has in effect given this President (or any future President) the right to begin war on Iran, Syria, or even Pakistan at will, provided that he is convinced that they are harboring terrorists. He could also make a missile strike against a purported terrorist cell in any city on earth, including London, Paris, or Madrid. On September 14, 2001 the country was traumatized, and no one seems to have stopped to think about what they were doing. But the effect of this resolution, in place of a simple declaration of war on Afghanistan, has been to foreclose any serious debate about exactly what mix of diplomacy, alliances and force we need to fight the war on terror, and how to avoid making things worse while we do so. And in today's political climate it seems impossible that its repeal or replacement by something more moderate could even be discussed.

Jefferson, in arguing with Madison about the failure of the original Constitution to include a Bill of Rights, recognized that in perilous times the government would attempt to disregard any guarantees that the document included. So it was in the Civil War, so it was in the Second World War and the Vietnam War, and so it is today. We must hope that, sooner rather than later, we recover our bearings.

A longer post, on a more historical topic, will appear tomorrow.

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