Saturday, January 27, 2007


I read this interesting op-ed in the NY Times by Gary Willis, wherein he laments the constant use of the term "Commander-in-Chief" to refer to President Bush:
When Abraham Lincoln took actions based on military considerations, he gave himself the proper title, “commander in chief of the Army and Navy of the United States.” That title is rarely — more like never — heard today. It is just “commander in chief,” or even “commander in chief of the United States.” This reflects the increasing militarization of our politics. The citizenry at large is now thought of as under military discipline. In wartime, it is true, people submit to the national leadership more than in peacetime. The executive branch takes actions in secret, unaccountable to the electorate, to hide its moves from the enemy and protect national secrets. Constitutional shortcuts are taken “for the duration.” But those impositions are removed when normal life returns.

But we have not seen normal life in 66 years.

As Mr. Willis makes quite clear through exampels of the behavior of other Presidents who respected this limitation, the President is not the Commander-in-Chief of America. He's the Commander-in-Chief of the armed forces. To us, he is "merely" the President. And yet in this "war on terror" the militaty authority of the President has become a justification for...well, almost everything, and the use of the term is pervasive, as Glenn Greenwald points out:
This is much more than semantics. The constant, improper references to President Bush as "Commander-in-Chief" -- rather than what Theodore Roosevelt called "merely the most important among a large number of public servants" -- pervades the media and shapes how it talks about the President in all sorts of destructive ways.

He then cites several examples produced by servile members of the media who are more than willing to grant their approval to violations of civil liberties the Bush administration has been perpetrating because such authority and leadership is needed "in wartime."

I would add only one additional comment to Willis' badly needed op-ed and Greenwald's excellent response. The "war on terror" has been most useful to proponents of executive power because it is a war that could potentially be fought anywhere. In Youngstown Sheet & Tube Co. et al v. Sawyer (more commonly known as the "Steel Seizure case"), the Supreme Court rejected President Truman's authority to sieze steel companies threatened by labor unrest to ensure that a steady supply of steel was available for the manufacture of equipment and weapons for the conflict in Korea. Though it goes unstated in the opinion in Youngstown, former Chief Justice Rehnquist points out in his 1987 book The Supreme Court: How it Was, How it Is that the Court almost certainly considered the fact that the war was a limited war being fought in Korea to be significant in the outcome of the case. The justices quite simply were not going to grant the President the authority to seize private property at home to fight a war halfway around the world that did not clearly threaten the existence of the United States.

There exists no such limitation in the "war on terror." It can be fought in Iraq or Afghanistan, or it could be fought right here at home, in an airport, in a mall, in the homes occupied by terrorist cells, or anywhere the terrorists might choose to operate or carry out their attacks. The Bush administration considers the appropriate response to the threat of terrorism to be primarily military in nature. Thus the President's military authority is triggered by a terrorist threat at home. And thus the President's military authority extends over the country, from airports, to homes, to malls, etc., etc. This permits the President to declare that his agencies may listen in on our phone calls without a warrant, that he may open our mail without a warrant, that terrorist suspects may be detained for life even if they are U.S. citizens, or "rendered" to other nations where they will be tortured, even if they were captured here on an American street, all of this premised on that most vague of Constitutional powers, the "inherent" war-making authority of the President, which possesses the utility of being so broad and so vague that it can be used to justify literally anything.

This is a feature of the Constitution that is most convenient to Constitutional scholars who believe in a stronger executive, and to Bush apologists who couldn't care less about the Constitution so long as it does not inhibit our ability to obey the dictates of President Bush (both views of which appear to have melded in the person of Vice President Dick Cheney.)

But it is a convenient fiction. The Framers of our Constitution did not intend the language to be read so broadly, nor did they intend that it would be used to justify suspensions of other provisions of the Constitution except in the most dire of emergencies (invasion and rebellion, as an example.) Fortunately the Supreme Court has reigned in the most egregious claims of power by the Bush adminstration, and the American people have grown rightly suspicious of such claims after years of hysterical posturing about unbelievable threats. The Constitution-as embodied in and defended by the American people-is considerably stronger than those who would usurp it for political gain. But as Greenwald points out in referring to a 2006 Newsweek article, there are still those who would have us accept on faith the claims of our "Commander-in-Chief."

No comments: