Many of us mistook the steady expansion of civil liberties during the fifty-five years after World War II as a natural, inevitable, and essentially irreversible evolution. Then came 9/11, and with it the knowledge that suicidal infiltrators were eager and able to murder us by the thousands—unless we could catch them first.
So the battle was joined over whether and how to recalibrate the balance between liberty and security. The Patriot Act soon became its focal point, and a source of bitter debate. In fact the act's 156 sections were mostly reasonable, incremental, overdue enhancements of long-established investigative and surveillance powers. That's probably no accident: it was passed (and is being reauthorized with changes) by Congress after public debate, and in full public view. In short, it represents just the sort of rebalancing that should occur in a democracy struggling to reconcile competing, fundamental values.
But until recently, the scare rhetoric about that law has obscured a far more consequential development: the succession of claims by the Bush administration that the commander-in-chief has near-dictatorial powers to wage war against terrorists, at home as well as abroad—often in secret and certainly without public consent. Without consulting Congress, and in defiance of criminal laws, this administration has claimed (though not always used) powers that are arguably more sweeping than any since Lincoln's.
Lincoln had his reasons. In 1861, an advancing Confederate army, with important help from Confederate sympathizers in Baltimore, threatened Washington. In response, the president suspended the writ of habeas corpus to allow detention of suspected enemy agents, then defied a judicial ruling that this was unconstitutional. As the war ground on, his generals censored and confiscated newspapers, imprisoned editors, and imposed martial law. He unilaterally freed the slaves.
Of course, other presidents in between Lincoln and Bush have tested the limits of executive power. (Franklin Delano Roosevelt, to take an especially flagrant example, approved the herding of 110,000 Japanese-Americans into prison camps.) Several presidents have ordered unilateral military strikes.
But most of these men worked with Congress when feasible, as did Lincoln. George W. Bush prefers to act unilaterally—so much so, in fact, that avoidance of oversight seems at times to be his principal goal.
Just two weeks after 9/11, a then-little-known Bush Justice Department official named John Yoo penned a memo with a stunningly broad conclusion. Congress, Yoo declared, may not "place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."
Since then, at the urging of Vice President Dick Cheney and his powerful aide, David Addington, administration lawyers have argued that Bush has the unilateral powers to:
* launch a major, pre-emptive invasion without congressional approval;
* order the indefinite detention of any and all people he alleges to be "enemy combatants" (including Americans seized on American soil) without due process or access to lawyers or courts;
* authorize indiscriminate torture to make such detainees talk, in defiance of international treaty obligations and a 1994 law making torture a crime;
* prosecute non-American detainees in "military commissions" devised by his administration, which offer defendants limited protections, no appeals outside the chain of command, and the prospect of execution; and
* order eavesdropping on Americans' international telephone conversations with suspected al-Qaeda agents, without court warrants.
Some of these claims have been challenged. The Supreme Court curbed Bush's powers to detain suspected enemies in 2004, requiring access to counsel and hearings for American detainees and access to federal courts for foreign detainees at Guantánamo Bay.
Congress, which has mostly slumbered through Bush's relentless accretion of power, briefly roused itself late last year at the insistence of Senator John McCain. The "McCain Amendment" to a recent Pentagon funding bill limits brutal interrogation methods.
And a handful of Bush-appointed Justice Department lawyers have balked at the White House's executive-supremacy absolutism. Assistant Attorney General Jack Goldsmith, Deputy Attorney General James Comey, and others put their jobs on the line in late 2003 and 2004 by repudiating earlier Justice Department opinion letters on executive power, torture, and other matters.
But the White House's retreats have been only tactical, and—unless pressure against the administration intensifies—they are likely to be temporary.
Adopting the narrowest possible interpretation of the decision giving Guantánamo Bay detainees access to federal courts, the administration now claims that while the detainees might be allowed to file a challenge in court, they have no rights for the courts to enforce.
In signing the McCain Amendment into law, Bush vowed to construe it "in a manner consistent with the constitutional authority of the president ... [and] the constitutional limitations on the judicial power." Translation: I will comply with this law, except when I don't.
Meanwhile, Goldsmith, Comey, and their allies have left the government. The principal executive supremacists—Cheney and David Addington—remain.
The Framers of the Constitution intended to make Congress—not the commander-in-chief—pre-eminent in matters of war. The Constitution gives Congress the powers to "declare War," to "define and punish ... Offenses against the Law of Nations," to "make Rules concerning Captures on Land and Water," and more. George Washington, James Madison, and other Founders all stressed the primacy of Congress in these matters.
Today, the Supreme Court is widely seen as the principal check on presidential overreaching. But courts can decide only a few narrow issues as cases come before them, and cannot legislate detailed rules to restrain the president. What's more, as the late Chief Justice William Rehnquist once wrote, the courts historically have shown "reluctance ... to decide a case against the government on an issue of national security during a war."
That is, unless the courts see the president and Congress as being at odds. When Harry Truman tried to seize the nation's steel mills to prevent a strike during the Korean War, he did not get his way. Congress refused to authorize his request for seizure, and when he went ahead anyway, the Supreme Court slapped him down forcefully.
In a famous concurrence—cited by both Chief Justice John Roberts and Justice Samuel Alito during their confirmation hearings as the touchstone of separation-of-powers analysis—Justice Robert Jackson wrote: "Presidential powers are not fixed but fluctuate depending on their disjunction or conjunction with those of Congress... When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb." Jackson added, "No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role."
That danger looms large today. In this war without apparent end, in which swift and decisive presidential action can be critical and new attacks could embolden presidents further, will we become habituated to creeping presidential autocracy? Will the number of Americans detained by the military as enemy combatants rise from two (so far), to 200, to 2,000, to 20,000 or more? Will this administration's extreme claims, if they take root as precedent, eviscerate our system of checks and balances?
Much will depend on Roberts and Alito, but more will depend on Congress. Contrary to their partisan critics, the two Bush appointees are nobody's patsies. But they know that courts have neither an electoral mandate nor the expertise to second-guess presidential claims of wartime necessity. If the Court is to be an effective check, it will need help.
"A crisis that challenges the president equally or perhaps primarily challenges Congress," Justice Jackson wrote in an unpublished draft of his concurrence. "If it does not rise to its occasions, if it is petty, partisan, or indecisive[,] power will gravitate to the Executive by force of public opinion whether this Court affirms or not."
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