On September 18, 2001, when Congress passed a joint resolution authorizing President Bush 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," it thought it was approving a military attack on Al Qaeda and the Taliban. It should have known better.
Congress should have understood that presidents, given war-making authority, take it and run. According to Bush, what Congress was in fact giving him was the power to pursue the enemy on the battlefield as he sees fit. And it was giving him the power to decide, unilaterally, who the enemy is. And to define the battlefield—again, unilaterally.
Define it he did. In a July hearing before the U.S. Court of Appeals for the 4th Circuit, a federal judge asked if the administration was "prepared to boldly say the United States is a battlefield in the war on terror." Replied Paul D. Clement, the solicitor general: "I can say that, and I can say it boldly."
In other words, says Tim Lynch, the director of the libertarian Cato Institute's project on criminal justice, "From Anchorage to Dallas to Honolulu, it doesn't matter—it's all a battlefield."
And so Bush has claimed power, as commander-in-chief, to redefine limits on the detention and interrogation of prisoners. He claims the power to seize U.S. citizens on U.S. soil and to hold them without formal charge in a military brig for as long as he wants, without meaningful access to courts or lawyers. And now it emerges that he also claims the power to eavesdrop without warrants on Americans in the United States, in seeming violation of the 1978 Foreign Intelligence Surveillance Act, known as FISA.
In peacetime, these breathtaking claims to unilateral executive authority would be shocking. But America is at war. By the standards of wartime presidents—with an important exception, about which more later—Bush is a pussycat.
During the Civil War, President Lincoln suspended the right of habeas corpus, a prerogative that the Constitution grants to Congress alone. When a federal court declared his order unconstitutional, Lincoln ignored the ruling. His administration locked up 10,000 to 15,000 people, including some whose only offense was to denounce the war. Hardly apologetic, Lincoln predicted that history would blame him for making too few arrests, not too many.
In World War II, President Roosevelt detained thousands of loyal Japanese-Americans, many of whom lost their homes and livelihoods. Less widely known is that, when the government captured a band of German infiltrators in the United States, FDR declared he would execute them no matter what any court said.
During the Korean War, President Truman tried to use his authority as commander-in-chief to seize and nationalize the American steel industry. (He backed down when the Supreme Court rebuffed him.) Throughout the Cold War, under Democratic and Republican administrations alike, government spying on Americans was endemic.
By comparison, Bush has been as restrained in the exercise of his claims to wartime authority as those same claims have been expansive. He says he can lock up anyone he pleases for as long as he pleases, and no court or lawyer can say boo about it. But in practice, he has detained only two U.S. citizens, one of them captured on a foreign battlefield. He has not threatened to defy the courts. As for the National Security Agency's domestic surveillance, no one seems to be suggesting that it was used against war dissenters or political enemies. Civil law may have been violated, but not, from appearances so far, civil liberties.
All true and to Bush's credit. Yet there is an important difference between Bush's behavior and that of Lincoln, FDR, and Truman: time.
The Civil War, World War II, and, to a lesser extent, the Korean War were intense, acute conflicts. Lincoln, Roosevelt, and Truman believed they were taking emergency measures during a conflict that they expected to be short. When it became clear that the Civil War would drag on, Lincoln went to Congress for the 1863 Habeas Corpus Act, formally legalizing his detention policy. Lincoln understood that he could not run a long war on a fly-by-night basis.
Bush, in contrast, seems determined to treat the war on terror as a permanent emergency. The administration says the 2001 use-of-force resolution allowed the government to collect battlefield intelligence here at home, superseding FISA. Invoked immediately after an enemy attack, that argument makes legal and strategic sense. Warrantless domestic surveillance and legal improvisation seem fine for four days, four weeks, or even four months.