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I have to go take care of a few things which have just come up so there will be nothing new here until 6 this evening.
Earlier in the week I posted a piece from Daily Kos called " Restoring Our Constitution " and now I am leaving you with another piece of this great series.
Restoring Our Constitution: Habeas - Corpse? Part 2 -- Executive War Powers
by Major Danby
Fri Mar 02, 2007 at 01:46:34 PM PST
This is the second in planned four part series of diaries on the Military Commissions Act. Part 1, which appeared yesterday, is here. Part 3, analyzing the the Military Commissions Act of 2006 in detail as the proposals to amend it, will appear on Saturday. Part 4, analyzing the benign-looking Manual for Military Commissions, which will actually be used to govern such commissions, will appear Sunday, along with my analysis of why people get suckered into to this sort of enterprise.
All of this is part of the broader series organized by Jay Elias called Restoring Our Constitution, which as noted in the linked diary now has its own dedicated DKosopedia page.
Today's diary deals with the vexing question of the scope of Presidential military power in wartime.
As noted in yesterday's diary, one secret of happiness, longevity, and success -- for a person, a relationship, an organization, and a nation -- is not pushing things too far. There will inevitably be tensions present in any system over who what laws and what individuals rule in a given instance and how one can ensure that the checks and balances in such a system are respected. The wise ruler does not push on these pressure points until damage is done. In the first three chapters of this analysis, yesterday's diary noted that Bush and Cheney are the opposite of wise: they revel in pushing such principles to the breaking point, such as the question of when and to what extent Congress can insulate actions taken with respect to some given legislation from judicial review, a notion known as "jurisdiction stripping."
Today's companion diary addresses a similar question: how much does Executive power expand -- at the expense of checks and balances, civil rights, and civil liberties -- in times of national emergency? As noted below, we know that it expands to some extent -- but we are not clear on the manner and degree of that expansion. For the sake of the nation, a wise ruler would never try to expand executive authority to the point where its limits must be established. But we are not now ruled by wise men.
4. He Who Must Not Be Named
Our Founders truly did a good job of drafting the Constitution. Really, truly, amazingly well. But as one soon discovers in practicing law, any written instrument will show its seams if you poke at it enough, places where one term overlaps a little with another until you can't quite tell what rule governs. From pulling at what may be a tiny loose thread of ambiguity, lawyers will work to unravel a whole sweater of a legal instrument, whether it is a will, a contract, a statute -- or the Constitution.
Under the Constitution, Congress passes the laws. Congress appropriates funds. It is empowered to
raise and support armies; provide and maintain a navy; make rules for the government and regulation of the land and naval forces; provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.
Sounds good. What does the President do?
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States
What does that mean? How does that fit with all of those Congressional powers mentioned? Are they in some tension?
Aha.
With the possible exception of Jimmy Carter, modern Presidents of both parties have unwaveringly supported the idea of a strong executive prerogative to make as well as execute foreign policy. History and Supreme Court precedent favors this interpretation, although some of it may be predicated on a mistaken understanding of our Founders' intent. But what Bush and Cheney are doing goes beyond having a strong executive. They are trying to leverage the President's primacy in executing foreign policy into a hostile takeover of all government functions and a siege against individual rights and liberties.
As we can start to see above and will see more fully tomorrow, the unreviewable military tribunal system in effect sets up a separate judiciary under the President's sole ultimate control. The President's position on laws like the Foreign Intelligence Surveillance Act ("FISA") are that they encroach on his unilateral ability to act as Commander-in-Chief of the armed forces, because the prohibited actions he would like to take would be helpful to him in providing for the national defense. In other words, both the intent of Congress and constitutional protection of civil liberties such as that contained in the Fourth Amendment requirement of search warrants are subordinated to the needs of the Commander-in-Chief.
That is radical.
And, of course, the fun does not stop there. The President has obtained expanded Congressional authorization to federalize the state militias (National Guard) and use them to enforce federal law even over the objections of the states -- effectively, this gives him an expanded power to declare martial law (or military rule.) Our friends at the flu wiki express concern over the extraordinary steps the President might take in a national emergency. Where does it end?
Here's the sad and weird truth: we don't actually know.
There is one Supreme Court case, however, that may give the clearest guidance on the extent of the President's emergency powers. (I should note that what follows may be an idiosyncratic opinion. Nonetheless, it's my best guess.) It's a case that even Bush and Cheney would probably go out of their way not to cite; their opponents would generally say that it is no longer "good law", which is the lawyerly term for the rules that we expect would apply today. And yet this case is out there; in fact, you know already the name of the case That Shall Not Be Named:
"Korematsu".
Before I got to law school and actually read the accursed thing, I had thought that Korematsu was a case about racism. At base, it is not. Korematsu is a case about civilian deference to military authority in a time of national emergency. That's it. In fact, Korematsu is now generally cited for introducing the concept known as "strict scrutiny", in most cases the most exacting standard to which a court will hold a government action before being willing to accept it. Strict scrutiny is what protects our free speech, our privacy, our protection against racial discrimination. But it did not protect Fred Korematsu. The irony is that in the very case that the Court first set the high bar that the government must clear to trench on our constitutional rights, the government cleared it.
To survive strict scrutiny, a law must be justified by a "compelling governmental interest," it must be "narrowly tailored" (successfully serving the compelling interest without affecting more activity than it must), and must constitute the "least restrictive means" of serving that interest.
Imagine that! Forcing Japanese citizens to sell their possessions and relocate to distant internment camps satisfied all of these tests!
The opinion's author, Justice Black, was a liberal Alabaman and one of our greatest ever on the Court. He is palpably uncomfortable in his writing with the notion of any racial justification for this act. Instead, here are some of his quotes from the opinion, which I've taken from Wikipedia's selections:
[E]xclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground.
...
There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that at that time these actions were unjustified.
...
Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.
Now, substitute "terrorism" for "war" and ask yourself if a much more conservative Court might write the same "shoot 'em all and let God sort 'em out" opinion that somehow applied to American citizens of Japanese but not German or Italian extraction. Is this the rule Hugo Black would have generated? Almost certainly not. Read again: he is not making a policy; he is deferring to a policy made up by (probably racist, possibly crackpot) military officials. Everyone should read Korematsu. I barely scratch the surface here of the absolutely stunning the extent to which the Court essentially throws up its hands and says "we have no choice but to defer to the judgment of the military commanders who were in the area" and (in a whisper) "we hope they will always be wise." Here's a link to the original opinion.
Now ask yourself: where did this right of the military to take these actions come from? Where in the Constitution does it say that the government can do any of that, let alone the President by his own Executive Order?
It doesn't say it anywhere, not explicitly. It's implicit in what it means to have armed forces, I suppose, and in what it means to be a "Commander-in-Chief."
Is it clear yet why we don't want our leaders pulling at this thread?
We know -- from Korematsu, its predecessor Hirabayashi (dealing with curfews for Japanese-Americans and exclusion from militarily sensitive areas), and elsewhere -- that from some source the government has the power to infringe on its citizens' rights in time of war, evidently even in a discriminatory way.
The opinions of other Justices are interesting as well. Justice Frankfurter's concurrence characteristically disclaimed any role for the judiciary in restricting the government at all, writing "That is their business, not ours." Justice Murphy, in stark contrast, prefigured the modern view of the case as one involving actionable racism:
All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.
But it is the great civil libertarian Justice Robert Jackson who saw the gravest danger of Korematsu:
A military order, however unconstitutional, is not apt to last longer than the military emergency ... But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle, ... [which] then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.
Whether or not Korematsu is the case that will be cited as precedent, we know that that loaded weapon remains ready. And the hands of the Constitution's would-be assassins now reach out to place it in their grasp.
5. The embezzlers, the molesters, the con men
What we know from Korematsu, even if we like to pretend we don't, is that our Constitutional rights are, to some degree, restricted in time of national emergency. We don't really know which ones or how much, but we know that can and will happen if circumstances allow. It is a bit like what happens when, while walking along, you run into a cop in charge of the scene at an emergency that happened in your path. Your normal freedom to do as you please is going to be restricted, at least a little.
What we can ask of an Administration in such circumstances is what Justice Black so wanted to believe he had been given by FDR. We want our leaders to constrain our rights only given a truly compelling interest, and then in as narrowly tailored a way as possible, and through the least restrictive means. That's not just being a good leader, it's being a decent human being.
And that, right there, is the crux of where the Bush-Cheney Administration has been so radical. At every opportunity, it has tried to justify the unilateral exertion of executive power to the detriment of our civil liberties and the separation of powers, for the least possible compelling interest, with plans as loosely tailored as possible, through the most restrictive means. They have tried to sweep as much power as possible into their personal domain, and use the executive Commander-in-Chief power as a basis for justifying secrecy, corruption, and malfeasance.
They are the bellhop who rifles through our suitcase for valuables. The mechanic who makes an extra copy of our keys. The broker who raids our account. The youth leader who molests our children. The con man who steals our life's savings. They have betrayed our trust. We knew that they were in a position to do so by virtue of their job, but we trusted them not to do so and they did it anyway.
The problem with the Military Commissions Act is not merely the Military Commissions Act. Some form of military commissions might conceivably have turned out to be appropriate in some circumstances, though with greater respect from the start for international law and without the insulation from review imposed by jurisdiction stripping. The other problem with the Military Commissions Act is who proposed and would execute the Military Commissions Act. When political leaders slaver to expand their power in every direction, using every trick and artifice, they cannot be trusted to exercise wise discretion.
We cannot trust them to tap our phones. They may use it to intimidate their enemies and expand their power.
We cannot trust them to set up an extrajudicial legal system. They may use it to bury their mistakes.
We cannot trust them to control a war without great oversight. They may use it to consolidate control and reward their friends.
We cannot trust them with enhanced powers to impose martial law. We cannot trust them with enhanced powers to replace U.S. Attorneys. We cannot trust them to make a case for war.
A libertarian may be comfortable with those conclusions. But, without intending to start a fight in comments, I am not a libertarian. Nor are our elites, nor do I believe most of our populace is strongly enough so to withstand the enormous pressure that will sometimes be brought to bear for stronger executive powers. The problem, for one other than the most committed libertarian, is that we must trust the government, to some degree in normal times and to a greater degree in times of national emergency, to do some of these things. They must provide for our common defense. They must find, fend off, and fight those who truly mean us harm. They must be trusted to administer a judicial system, a penal system, an electoral system.
We cannot trust them, and yet we must. We must trust them, and yet we cannot.
That is the seam that could survive so long as no one pulled too hard, the bone that need not break so long as no one pushed too hard. But they did it. They wanted to do it and they really did it. They pulled, they pushed. They did the damage we could not abide, that cannot be undone.
That, in the end, may be the most lasting effect of Bush and Cheney upon our constitutional order, the one that will forever haunt the laws we pass and structures we create. Having seen what an Administration can do when they push hard enough on the pressure points of our democracy, we can never quite trust anyone the same way again. We can never look again upon even a small encroachment on liberties that might somehow be justifiable in time of emergency, on any curtailment of habeas corpus or other due process rights, without thinking of Cheney and Bush, and how easily and with what abandon they might abuse it. We can never trust anyone again. What they have broken cannot be repaired. Our political system could survive much -- but not them.
