The President's Special Powers That Aren't
"[President Bush's] claim that during wartime he possesses special
powers really gets me. Special powers? He can't even ride a bicycle
without falling off. How come reason isn't one of his special powers?
If he's got special powers, what's his Kryptonite: logic?"
As a child, Chimpy was put into the "special" classes, so why shouldn't he have "special" powers?
Mr. Bush has made several interesting
assertions. First, he claims that the executive of the U.S. is granted
special and exceptional powers at wartime under the constitution.
Second, he asserts executive right to detain and deny due process to a
special category of citizen, a citizen "enemy combatant", who has taken
up arms against the people of his own nation, or otherwise provides "aid and comfort" to "terrorists" and "enemies of the U.S." during "a
time of war" and to engage in warentless searches (eavesdropping) of
U.S. citizens, further bypassing due process "during a time of war". He
further claims that the conditions of and threats we face in these
times were never considered when the constitution was drafted.
I
decided it was time to see for myself what the constitution might say
or not say on these topics, and therefore directly test Mr. Bush's
assertions.I
did not need to go further than article III before I got a rather clear
and unambiguous answer to all of the questions Mr. Bush poses. In the
few short sentences of section 3, Article III, I think we find all of
these questions answered. We can read it together if you like.
The
first thing I found in this rather remarkable and I suspect seldom read
article is that indeed our forefather's certainly did consider the
question of what to do about a citizen
"enemy combatant", as in a
citizen who chooses to take up arms against the military forces of our
nation or otherwise provides aid and comfort to an enemy power at a
time of war. The charge is called "treason", and this is how the
constitution describes it:"Treason against the United
States, shall consist only in levying War against them, or in adhering
to their Enemies, giving them Aid and Comfort."
While the
supreme court had chosen to limit the definition of "enemy combatant"
only to someone "carrying a weapon against American troops on a foreign
battlefield" in the Hamdi case, according to the Defense Department,
and as argued in the Padilla case, an enemy combatant includes anyone "part of or supporting Taliban or Al Qaeda forces or associated
forces." Both the narrow definition of the Supreme Court, and even the
broader definition of the executive branch, fall well within the
circumstances and definition offered in Article 3 Section 3 for "Treason". I think even a strict constructionist cannot ignore this rather inescapable conclusion.
But, there is more:
"No Person shall be convicted of Treason
unless on the Testimony of two Witnesses to the same overt Act, or on
Confession in open Court."
This I think says two important
things. First, those "enemy combatants" must have a trial, and the due
process and full involvement of the judicial branch that this directly
implies. Further, it suggests, given the gravity of the crime and
possibility for it's misapplication, the burden of proof required to
sustain, and rights granted to a potential defendant, of a charge of
treason may well be greater than those offered other classes of
defendants. Finally, section 3/3 concludes with
"The
Congress shall have Power to declare the Punishment of Treason, but no
Attainder of Treason shall work Corruption of Blood, or Forfeiture
except during the Life of the Person attained."
What is entirely absent in 3/3 is any mention
whatsoever of the executive. This is clearly because the executive
branch has no special role or special powers whatsoever in the handling
of "enemy combatants" as envisioned by our forefathers and as written
in the constitution, and this is rather logical, for they understood
that the greatest danger to the U.S. constitution was not a foreign
enemy, but rather an executive asserting arbitrary dictatorial powers.
This especially clear in reading the federalist papers, though it's
conclusion is found in 3/3 as well as in many other parts of the
constitution.
If the president has no special role
whatsoever for the handling of enemy combatants, then clearly he has no
special powers to discard their legal rights or remove their 4th
amendment protections. Ergo, there are no special powers for
wiretapping. Indeed, I think 3/3 makes it very clear, that even at a
time of war, due process must exist and cannot be suspended.
Interesting
enough, while the president can claim to be the commander-in-chief of
the U.S. armed forces, these same forces swear no oath of loyalty to
him. Rather every commissioned officer in the U.S. military swears an
oath to "defend and protect the United States Constitution, against ALL
enemies, foreign and DOMESTIC", much like the president himself. To
this we can add the "Nuremburg Principle", which introduces the idea
that a commisioned officer or soldier can and should be able to
disregard an "unlawful" order.
A little further we find
Article II, Section 2, "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; he may require the Opinion, in writing, of the principal
Officer in each of the executive Departments, upon any Subject relating
to the Duties of their respective Offices, and he shall have Power to
Grant Reprieves and Pardons for Offenses against the United States,
except in Cases of Impeachment."
Here we find something of
executive war powers. Clearly, the president has the power to "pardon"
Pedilla, but lacking is any statement whatsoever of special "war
powers" or the ability to set aside due process in any form. Nor,
incidentally, does congress seem to have these magical powers either,
so certainly they cannot grant them to the president even if they wish
to. But let's go a little further, where did the specific idea of
executive war powers come from anyway?
"The
President is to be commander-in-chief of the army and navy of the
United States. In this respect his authority would be nominally the
same with that of the king of Great Britain, but in substance much
inferior to it. It would amount to nothing more than the supreme
command and direction of the military and naval forces, as first
General and admiral of the Confederacy."
Clearly, what war powers
that may exist in the executive branch and offered to the president
were meant to be rather nominal, and only those minimum powers needed
to direct and command the armed forces of the United States. To this
mix we add the war powers act of 1973.
These powers and this
act in fact further diminishes the authority of the executive.
Certainly it deals with the mechanics of when and where the executive
may introduce the U.S. military and hence is directly related to his
role of commander-in-chief as well as being consistent with what the
federalist papers further clarify in regard to this very limited role,
being limited solely to the mechanics and use of the U.S. military.
Next,
we can go to case law, to see how past cases involving war powers were
decided. Most relevant, I think, is Ex Parte Milligan;
In 1866, the
supreme court found unconstitutional Lincoln's order authorizing trial
by a military tribunal of Lambdin P. Milligan, an Indiana Lawyer
accused of supporting the Confederacy. The court ruled clearly that
citizens must be tried in civilian courts, even during war. The sole
exception they recognized was if civilian courts are neither open or
operating. The same court, incidently, also found that Lincoln lacked
authority to declare martial law in Indiana. I guess that kills the
idea of staging martial law to then round up and shoot your dissenters
in military tribunals because the courts would be effectivily "closed."
Again,
in all these things, I fail to find anything that supports any of the
assertions of Mr. Bush, and many that clearly and directly refutes all
of them. Is there some part of the constitution I had missed, or did
Mr. Bush simply make it all up as he went along?
In public
appearances this week, Bush defended his program of domestic spying
without court approval, citing the inherent war powers of the
presidency under the U.S. Constitution. The
president points to his status as commander-in-chief and the resolution "approved by Congress three days after the 9/11 attacks" authorizing
him to use "all necessary and appropriate force" against the
terrorists.
It all smacks of France's Louis XIV's famous dictum: "L'etat, c'est moi" - "I am the state." We are now learning what President Bush considers to be the limits of his power - NOTHING.
