John Yoo's assertion that Congress has no right to pass laws that impinge on the president's claim to a broad interpretation of his role as commander-in-chief violates the core of the constitutional system of checks and balances.
More memos recently have surfaced that were written early in the Bush administration by John C. Yoo from the Justice Department's Office of Legal Counsel — the man who gave us the administration's horrifyingly narrow definition of torture. As difficult as it is to believe, the recently released memos are even scarier than the original torture memo.
Yoo boldly asserts that the president's power during wartime is nearly unlimited. For example, he argues that Congress has no right to pass laws governing the interrogations of enemy combatants and the commander-in-chief can ignore such laws if passed, and can, without constraint, seize oceangoing ships.
The memos also argue that military operations in the United States against terrorists are not subject to the Fourth Amendment requirement for search warrants or the Fifth Amendment requirement for due process.
This broad interpretation of executive power and the president's commander-in-chief role would make the nation's founders jump out of their graves. Purposefully, the Constitutional Convention enumerated the large number of Congress's powers in Article I, and gave most powers related to defense and foreign affairs to the people's branch.
In particular, the war power was given to Congress. The chief executive, whose powers were enumerated in the much more brief Article II, was given the commander-in-chief role, but this was intended narrowly, only as commander of U.S. troops on the battlefield.
Instead of declaring war, which has fallen out of fashion, the Congress, after 9/11, passed a resolution authorizing the president to go after al-Qaida overseas but deliberately omitted domestic activities from that authorization.
Democrats and Republicans alike declared that they were not endorsing a broad expansion of the president's authority as commander-in-chief.
An important example from the nation's infancy shows how narrowly the founders regarded the president's role as commander-in-chief. During the Quasi-War with France in the last years of the 1700s, Congress authorized President John Adams to seize armed ships sailing to French ports. Adams exceeded the congressional authorization by ordering the seizure of vessels sailing to or from French ports. The Supreme Court, in the case Little v. Barreme, ruled that Adams had exceeded the authority Congress had delegated to him. So much for Bush's supposed intrinsic authority to seize all oceangoing ships without congressional authorization.
In 1952, President Truman, the first imperial president, seized the steel mills under his alleged "inherent power" as commander-in-chief — supposedly to prevent paralysis of the national economy and using the rationale that soldiers in the Korean War needed weapons and ammunition.
By a wide margin, in the case Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court struck down Truman's executive order to seize the mills because it had no statutory or constitutional basis. Essentially, the court ruled that the president may be commander-in-chief of the armed forces but not the country.
Yoo's assertion that Congress has no right to pass laws that impinge on the president's claim to a broad interpretation of his role as commander-in-chief violates the core of the constitutional system of checks and balances, and for which the United States regularly criticizes despots in foreign countries.
Finally, the Fourth Amendment (requiring warrants for any search) and the Fifth Amendment (the right to due legal process) contain no exceptions for wartime. In fact, in a republic — where the rule of law should be king — crises and wartime are exactly when people's rights are most likely to be endangered and when safeguards are especially needed.
Even more tragic and dangerous than the quagmires of Iraq and Afghanistan have been President Bush's usurping of power from the other two branches of government and the creation of the "hyperimperial" presidency.
ieland@independent.org
http://www.independent.org
Read more articles by Ivan Eland
"the Fourth Amendment (requiring warrants for any search) and the Fifth Amendment (the right to due legal process) contain no exceptions for wartime"
What about for non-citizens being held outside of the country? That is, after all, whose non-existent "rights" are being "violated" that so concerns you. I don't remember off-hand which article declared the protections of the constitution extend to foreign fighters outside of the country at any time - let alone "wartime".
Your regurgitated Huffington Post "Bush lied…" screeds would have a little more credibility if it weren't for the fact that your concern for the imperialisation of the American presidency suddenly began when George W. Bush took office, and not for the previous 8 years when Bill Clinton was engaging in military operations in Kosova, Bosnia, Rwanda, Somalia, Iraq, Albania, Serbia and Yugoslavia with nary a war declaration to be found. Congress has not had anything usurped from it during this administration. Congress has chosen to issue authorizations to conduct military force, and has continued to grant the president the necessary funds and powers to execute that authorization. Let's not pretend that Congress is powerless against the monarchical tyranny of the "hyperimperial" GWB. George Bush's cabinet members' memos are not legal decrees, and Congress still has all the power it is entitled to, whether it uses it or not.
Some "empire" the "hyperimperial" president has built, by the way. We've got two Muslim nation-states with locally elected governments that do not answer to the United States, neither of which serves any of our interests, and both of which are financial drains on our resources. For being as evil, sinister, and all-powerful as you say he is, this Bush character pretty much sucks as a dictator. I think he needs a brush up on his imperialism, because I don't think he's doing it right.
Comment by Patrick Mulligan | May 8, 2008
Um, Mr. Mulligan - Jose Padilla was an American citizen apprehended on American soil. In addition, the National Security Letters are being handed out to Americans, and the telecom companies are looking, rather desperately, for retroactive immunity for their kowtowing to administration demands for data and wiretaps. Why so much fervor if they're not guilty of violating the law?
None of these have anything to do with "non-citizens being held outside of the country", which is a whole other problem.
Comment by Raymond Ingles | May 8, 2008
Ray, it occurred to me that you have an unnatural and disturbing concern for the imagined rights of murderous Islamic thugs the world over, yet I never hear a peep of outrage over their depredations against us: They capture innocent civilians and saw off their heads while they kneel, bound and pleading - you remain silent; Our guys wrap panties around the heads of blood-thirsty terrorists - you are outraged. They blow up mosques full of innocent Muslims (and chock full of Korans - not a peep from you or your hand-wringing lib friends; we are accused erroneously of flushing a Koran down a toilet - you priggishly demand we close down Gitmo (and no outrage over the dozens of innocents slaughtered by peaceful Muslims in the ensuing riots.) Saddam's torture chambers and mass graves: OK by your book; pouring water down the throat of the architect of the 9/11 attacks for 45 seconds (to obtain info to prevent a repeat): a despicable act of torture beneath our standards.
The fact is, in spite of all your puffed-up moral preening, nothing this administration has done in prosecuting this war is illegal or unprecedented. For example, every wartime president in American history has held unlawful combatants during hostilities (which the Supreme Court has affirmed) Have you ever heard of the German troops caught on L.I. beaches during WWII who were arrested, tried in military tribunals, and executed by Roosevelt?
How about supporting our side and criticizing theirs, for a change?
Comment by Jeff Osonitsch | May 8, 2008
Mr. Osonitsch: You know, I'd feel a lot worse about what you wrote if it bore the slightest relation to what I've actually written.
I mean, one key point of that discussion was that I was insisting that military tribunals were necessary for the majority (not even all) enemy combatants. The Bush administration was admitting they didn't do tribunals, and insisting that they didn't have to do them. Then you point out that the WWII infiltrators were subjected to military tribunals. Thanks for making my case for me.
Go ahead and find any quote, on this site or anywhere else, where I've said that Saddam's torture chambers and mass graves were "OK in my book". I don't hide behind pseudonyms, but you'll need to look for both "Raymond Ingles" and "Ray Ingles". Go ahead, Google for it. I'll donate our entire tax refund to the cause of your choice if you can come up with one. What do you want to put up if you can't? Would an apology be too much to ask?
It's weird. It's like some people here can't imagine that someone could disagree with part of a position, or think that someone could be partially incorrect. Either you agree with them in every particular, or you must perforce believe the exact opposite of everything they do on every topic.
Comment by Raymond Ingles | May 8, 2008
"Um, Mr. Mulligan - Jose Padilla was an American citizen apprehended on American soil. In addition, the National Security Letters are being handed out to Americans, and the telecom companies are looking, rather desperately, for retroactive immunity for their kowtowing to administration demands for data and wiretaps. Why so much fervor if they're not guilty of violating the law?"
Um, Mr. Ingles - Jose Padilla was given a civilian trial, convicted by a civilian jury, and sentenced to serve in a civilian prison. And even if he hadn't, subversion and treason (believe it or not, those are actually still crimes) are special conditions in United States law under which certain legal rights and protections are forfeited. Additionally, Mr. Eland's article made no reference to Jose Padilla. Specifically, he addressed "enemy combatants" and "terrorists", without any qualifying terms (i.e., "domestic", "American", "on American soil", "foreign", etc). National security letters were also not in discussion, but if it is your contention that NSL's are illegal, I can only assume that you are unfamiliar with the legal proceedings surrounding their use for the past 30 years.
"Go ahead and find any quote, on this site or anywhere else, where I've said that Saddam's torture chambers and mass graves were "OK in my book". I don't hide behind pseudonyms, but you'll need to look for both "Raymond Ingles" and "Ray Ingles". Go ahead, Google for it. I'll donate our entire tax refund to the cause of your choice if you can come up with one. What do you want to put up if you can't? Would an apology be too much to ask?"
Silence sometimes speaks more clearly than words. Failure to criticize one position while exclusively criticizing another is a pretty good indication of one's views on a particular matter. Please don't pretend like you're unfamiliar with the practice of making inferences about someone's views based on what they do and don't say.
Comment by Patrick Mulligan | May 9, 2008
Ray, One can infer things by what you chose to criticize and on that which you are silent. You've had every opportunity to criticize mass graves and torture chambers (and be-headings and suicide bombings), yet you have not (go ahead, look it up.) Instead you've chosen to criticize Gitmo and Abu Graib. I am simply pointing out the conscious choices you have made.
You have demonstrated repeatedly that your sense of moral outrage is selective and warped: you select pseudo-scandals (like those mentioned above) involving Americans and inflate them beyond all proportion, while you chose to ignore the real and heinous crimes being perpetrated against innocents by our enemies.
Try a little more perspective and balance and perhaps people won't draw inferences from your silence.
Comment by Jeff Osonitsch | May 9, 2008
On another note, I'd hate to bother anybody with a trivial discussion that is actually related in any way, shape, or form to the article that's been written here, but out of curiosity, let's say for the sake of argument that George W. Bush has violated every precept of the constitution that it is claimed he has (which is to say, the constitution in its entirety), in what way does that relate to imperialism? Has that become such a catch-all term that you guys literally don't understand what it means anymore? Couldn't we go back to the days when the Bush administration was fascist and Bush was Hitler? It's no less accurate or hyperbolic.
Comment by Patrick Mulligan | May 9, 2008
Mr. Osonitsch, Mr. Mulligan - before you dig yourself any deeper, you should probably read this. It just might surprise you. I posted it before the invasion of Iraq, and updated it during the invasion. The Internet Archive has recorded it as far back as 2004.
I'm also deeply appalled that neither of you has ever denounced cannibalism. Your silence on that topic speaks volumes.
Comment by Raymond Ingles | May 9, 2008
Mr. Mulligan - The article states that "Congress, after 9/11, passed a resolution authorizing the president to go after al-Qaida overseas but deliberately omitted domestic activities from that authorization." The historical examples cited - seizing ships in the 1700s and steel mills in the 1950's - both deal with domestic activities.
And yes, I'm relieved that Padilla was finally given a trial - after years of incommunicado detention without one, and thanks to determined pressure from civil liberty groups - and I'm not at all surprised that he was guilty of aiding and abetting terrorism. Of course, what he was actually convicted of bears no relation to the justification that was given for him to be detained unconstitutionally. It's a great precedent that at least U.S. citizens can actually get a trial, eventually - but the Bush administration was on the wrong side of that fight.
Comment by Raymond Ingles | May 9, 2008
Raymond,
That was a separate part of the article than the part that addressed the treatment of "terrorists" and "enemy combatants". Mr. Eland did not provide any qualifying adjectives for "terrorists" and "enemy combatants" to indicate that he was referring exclusively to domestic terrorists and enemy combatants, on American soil, who are American citizens.
And as I said before, even if he were referring to "terrorists" and "enemy combatants" arrested inside the US, who are American citizens, you still forfeit certain rights under our laws overseeing treason and sedition. Also, when you've been captured re-entering the United States from Afghanistan while committing acts of sedition and treason (terms under which Padilla was not charged, though he certainly met the constitutional criteria for treason and standing definitions of sedition), it would seem quite reasonable to be held under military and not civilian conditions as an unlawful combatant. Let's not pretend like this guy was roused out of his house by brownshirts while he was innocently going about his all-American day - he was arrested at the airport on his way back into country from Afghanistan, where he was performing the terrorist activities for which he was later convicted. I'll give you this though: If John Walker Lindh was afforded a civilian trial, then there's not much reason why anyone, foreign or domestic, shouldn't get one.
Again though, I'd like to ask what the connection is between "terrorists" and "enemy combatants" being held as military prisoners instead of civilians, and Bush being "hyperimperial"istic. Here's a definition of that term from http://www.dictionary.com:
1. the policy of extending the rule or authority of an empire or nation over foreign countries, or of acquiring and holding colonies and dependencies.
2. advocacy of imperial interests.
3. an imperial system of government.
4. imperial government.
5. British. the policy of so uniting the separate parts of an empire with separate governments as to secure for certain purposes a single state.
Like I said, let's say for the sake of argument that Bush has utterly and completely decimated the constitution and enthroned the presidency as an unfettered dictatorship. What does that have to do with imperialism? You're obviously very concerned with proper charges being applied and proper evidence used to make judgments, right? So what connection is there between the charges of being an unconstitutional dictator and supporting a policy of "extending the rule or authority of an empire or nation over foreign countries, or of acquiring and holding colonies and dependencies"? Or is the issue not the issue in this case?
Comment by Patrick Mulligan | May 9, 2008
Mr. Mulligan - I thought the article was pretty clear - "…military operations in the United States against terrorists…" (emphasis added). Have I misinterpreted something?
As to 'imperial' - I think you're right, it no more applies than 'fascist'. Perhaps 'monarchial' or 'dictatorial' would be better terms. Now, does that make the arguments in the article wrong?
Comment by Raymond Ingles | May 9, 2008
And before that there was: "Yoo boldly asserts that the president's power during wartime is nearly unlimited. For example, he argues that Congress has no right to pass laws governing the interrogations of enemy combatants"
Not "American civilian enemy combatants".
Also, *military operations* (to add emphasis) are indeed subject to different purview than civilian operations against terrorists *in the United States*. And again, there was no indication that Mr. Eland was referring to American civilian citizens. "Terrorists" "in the United States" is not exactly the same as "innocent American civilians". Especially when using the term "military operations" as a qualifier. In any case, this argument is getting pedantic. Regardless of what the definition of "is" is, Mr. Eland did not make it in any way clear that he was referring exclusively to domestic American civilians when referring to "terrorists" and "enemy combatants".
In regard to the arguments made being "wrong", they are utterly and completely unrelated to the conclusion, so in that sense I suppose you could say they were indeed "wrong". Just because a person is a terrorist, doesn't mean they don't have rights, and just because a person is a totalitarian dictator, doesn't mean he's an imperialist. If you're referring to the factual veracity of the arguments, that's certainly debatable. They're vague and hyperbolic, and dependent on a particular legal/constitutional viewpoint to be valid.
Comment by Patrick Mulligan | May 10, 2008
Ray,
Since you've already sufficiently demonstrated your reflexive hostility to God and country, I wonder if you'd care to weigh in on two other controversial issues, mom and apple pie?
Comment by Jeff Osonitsch | May 10, 2008
I think this site just about exemplifies John Kenneth Galbraith's quote, "In the choice between changing one's mind and proving there's no need to do so, most people get busy on the proof."
Comment by Raymond Ingles | May 10, 2008
And you feel this way because those damned stubborn conservatives just won't change their entire ideological outlook to suit your personal viewpoint on a range of topics? Good thing there's open-minded and flexible folks like you around to pass that kind of judgment. Pot, meet kettle.
A quote from an economist who spent his entire life and career advocating policies and theories that have been remarkable and demonstrable abject failures, and abandoned in modern economics as sound theory even by state-advocate economists, was a perfectly, appropriately, and poetically ironic way to make that point. It's almost as if it was scripted. Bravo.
Comment by Patrick Mulligan | May 10, 2008
So, I point out where I called Hussein a "ruthless, sick, evil SOB" - and proof that I did so in 2004 at the latest, and good evidence that I did so in 2003 - and yet 'I never criticized any of our enemies'.
Fine, assume I'm a treasonous bastard and I'm only saying this because I want the U.S. to fall into the sea. Whatever. Now - even if that were true - would that make the arguments wrong? Mr. Mulligan - the only real point you seem to have made is that the author chose the wrong adjective for the current administration's power grab.
The key point he was making is that the administration's position - that Congress can't make rules governing Presidential actions during wartime. He musters up several cases from the past that argue against the administration's position. Why is this wrong?
Here's something else to consider: "Many loyal men deny this power to the President, and, however confident we may be that he possesses it, it is no imputation on the loyalty of the majority of the Court to presume that on this point they agree with their political school." - Lincoln's Attorney General, Edward Bates, advising not to bring a test case regarding habeas corpus before the Supreme Court. Would that more people today could wrap their heads around the notion of a 'loyal opposition'.
Comment by Raymond Ingles | May 10, 2008
I didn't see anywhere in this discussion where you pointed out those remarks that you made, and I'm not going to go look them up because I didn't bring them up and I don't care - it had nothing to do with the article or the point I was making. I also never called you a treasonous this, that or the other. I know you entered this discussion with remarks that had nothing to do with the original topic, but at least try and stick to the irrelevant topic you wish to discuss without the red herrings, if you please.
Now, you asked if the arguments presented in this article were "wrong". I already addressed that question for you, and you failed to qualify what you meant by "wrong" (i.e., not supporting the conclusion of the author, or factually inaccurate), as I asked. The thrust of this argument is that the president is usurping the power of the Congress and Supreme Court and centralizing it entirely in his office, and that this fact makes him an imperialist. Without judging the veracity of the claim, it is irrelevant to the conclusion, so the *argument* is, indeed, "wrong". That is not just a poor use of adjectives, it is a fallacious argument that is not supported by reason. Being so nitpicking and pedantic, you of all people should appreciate this fact.
As to the veracity of the claims themselves, as I said before, they are too vague and hyperbolic to really judge on a broad basis. The entirety of the cited evidence to support the claim that the president is centralizing and broadening his power and usurping that of Congress and the Supreme Court is a memo from a Bush administration official from 5 years ago. Has the president actually usurped the power of the other branches of federal government? Well, he may or may not have (and that is highly debatable), but the only supporting evidence in Eland's article is sloganeering implications that he has. It assumes that the reader has already accepted the argument as fact. So it is essentially worthless, unless the audience is understood to already hold that position.
But to respond to the argument that Mr. Eland didn't actually make, that you nevertheless are defending as if he had made it, I do not believe that the president has, in fact, usurped the power of all branches of government and installed himself as a dictator. It wasn't brought up in the article, but you seem very concerned with the PATRIOT act. Guess what? That was passed by the Senate and the House of Representatives before it was signed into law by the president - the exact procedure outlined in the Constitution for creating new laws. Regardless of what you may have heard at the Huffington Post, the president does not, in fact, have the authority to write, pass and enforce legislation entirely with his own power. The Congress was involved in that decision. That you don't agree with the decision they made is irrelevant to the fact that they did, in fact, exercise legislative power. Similarly, Congress passed the vague "authorizations to conduct military force" in Iraq and Afghanistan. No, they did not make formal declaration of war. But neither did the president single handedly issue the order to conduct war in Iraq and Afghanistan. The president does not have that authority, and did not exercise it as such. Congress has also neglected to rescind those authorizations to conduct military force, which is well within their power and ability, and it has also continued to provide funding for both of those conflicts, which it is under no obligation to do. The president has not, because he cannot, allocated funds to conduct those wars himself. Again, we have a case of Congress not exercising authority that it does indeed have. That you disagree with Congress' decision not to exercise their authority does not mean that their authority has been stripped from them. In regards to the president's supposed unilateral authority in regards to the treatment of enemy combatants and terrorists, he has been challenged in his decisions by lawsuits to the federal courts, and the federal courts have made decisions in those challenges. Sometimes in favor of the president, sometimes not in favor. The judicial branch is exercising its authority. The judicial branch does not have the authority to automatically strike down decisions of the president or the Congress - there is a legal process that must be followed. This is in accordance with the limitation of judicial power set forth in the Constitution. That the judicial branch does not have as much authority as you would like it to have, or that they have failed to decide cases as you would like them to decide them, does not mean that their power has been stripped from them and that the president is acting outside their purview. The citation of historical examples in which the president exceeded his authority and had his decisions struck down by the judicial branch is utterly irrelevant to whether or not George W. Bush is a "hyperimperialist" (in the "anyone who doesn't agree with our position is an imperialist" sense of the word) president, but it quite ironically goes to disprove Eland's position that the past presidents, like this president, have exceeded their authority, gotten away with it, castrated the other branches of government, and become "imperialists" (again, using the word in its mystical, metaphorical sense, as Mr. Eland has). That judicial review has overturned the decisions of past "hyperimperial" presidents is proof-positive that the judiciary has not, in fact, been stripped of its authority in the past by "hyperimperial" presidents, and the fact that the tradition of judicial review continues to this day despite our "hyperimperial" president's totalitarian authority is proof-positive that the judiciary has not, even today, been stripped of its authority.
There is a difference between reasoned discourse on the part of a "loyal opposition" and ignorant, ill-informed, amateurish, partisan political mudslinging and tantrum throwing. Or, as I pointed out in my first post in this discussion, selective outrage based on party or political ideology. There is absolutely no ambiguity as to which this article is. I think I've made my viewpoint more than clear enough, and I have no further interest in having a discussion with you about non-existent arguments, facts, and points that you've somehow managed to fabricate out of this article, or the thin air, whichever the case may be. Until next time, adieu.
Comment by Patrick Mulligan | May 11, 2008
So far, 2 against 1, if you don't count the author. I side with Raymond Ingles.
Comment by felix | May 12, 2008
Mr. Mulligan - comments 2, 4, and 8 contain hyperlinks. The site's current color scheme does not make them stand out very much. I've emailed the site's administrators about it, and they've been experimenting with various settings. Right now, link text is black instead of dark blue/purple, and if you move your mouse over them, an underline appears. I brought them up to you because you and Mr. Osonitsch very explicitly did "bring them up" in comments 3, 5, and 6.
In any case - it's not just one memo from the administration that establishes that the current administration has attempted to usurp power from the other branches of government. BTW, they don't have to attempt to usurp "the power of all branches of government and [install Bush] as a dictator" to nevertheless attempt to grab powers not accorded to the Presidency by the Constitution. "Dictatorial" - one of the words I suggested - means "like a dictator", not "exactly like a dictator in every respect".
The fact that the judicial branch has been forced to act to correct some of this power grab isn't evidence that the administration hasn't been claiming un-Constitutional powers. Rather, it's evidence that it has. (Warning: hyperlinks ahead.) The court explicitly rejected arguments like those of Woo. And Congress has started to assert themselves as well, though in a characteristically passive manner, letting authorizations expire. (Being accused of treason for not supporting the administration's actions 100% does tend to intimidate politicians.)
Mr. Eland's article focuses on Woo's memo because that was just released. He does assume a context behind it, people who are familiar with recent history. Perhaps he did aim a bit high.
Consider - honestly now - are you really comfortable with the Bush administration's positions? If Bush can take your 4th amendment, then Hillary or Obama could take your 2nd…
Comment by Raymond Ingles | May 12, 2008