The War On Terror And Presidential Power
In today’s Washington Post, Frederich Schwarz and Aziz Huq point out why the Bush Administration’s assertion of executive power in the context of the War on Terror are fundamentally different from what the nation has seen in the past:
Today, the argument for unchecked presidential power is starkly different from earlier invocations. While previous administrations have violated civil liberties — as in the post-World War I Palmer raids and the incarceration of Japanese Americans during World War II — such actions were public and short term. When Confederate troops neared Washington in the Civil War and mobs in Baltimore attacked Union troops, President Abraham Lincoln suspended habeas corpus — the principal legal protection against unlawful detention. As Baltimore’s mayor threatened to blow up railroad bridges used by Union troops, Lincoln acted without waiting for Congress to return from recess. Yet he subsequently sought and received congressional approval.
Unlike Lincoln and other past chief executives, President Bush asserts that he has the power to set aside fundamental laws permanently — including those that ban torture and domestic spying. The White House today argues that there will never be a day of reckoning in Congress or the courts. To the contrary, it does all it can to shield its use of unilateral detention, torture and spying powers from the review of any other branch of government. Even after five years, the lawfulness of incarcerating hundreds of detainees at Guantanamo Bay, Cuba, has not been reviewed by another branch.
As the authors point out, notwithstanding rhetoric coming from the Democratic leadership, Congress has been noticably silent and acquiescent in this unprecedented Presidential power grab. This is despite the fact that the Founding Fathers clearly would not have accepted the Bush Administration’s intrepretation of Executive Branch power:
Debates at the 1787 Constitutional Convention in Philadelphia, and in the state ratifying conventions that ensued, conclusively undercut the current administration’s claim to unaccountable power. Alexander Hamilton, the founding era’s foremost advocate of executive vigor, disdained efforts to equate the new president’s authority with the broad powers of the English monarchs. And even assuming that Hamilton was wrong in asserting that presidents have less power than English kings, the British monarchy had in fact been stripped of power to “suspend” parliamentary laws after the Glorious Revolution of 1688, about 100 years before the Constitutional Convention. The Constitution simply contains no unfettered executive authority to annul laws on a president’s security-related say-so.
In essence then, the Bush Administration is asserting that the President should have powers that even King George III didn’t have at the time of the American Revolution.
It’s time for someone to start challenging this before it’s too late.
