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Thursday, February 16, 2006
Will is Right
By Dr. Steven Taylor @ 9:12 pm

First off, George Will was on target in his column this morning. The President is asserting powers that he does not have by making a vague Article II claim and by retroactively deciding that the AUMF lets him do essentially whatever he wants if it can be even vaguely tied to 9/11. As such, the term “monarchical” fits the bill:

The next time a president asks Congress to pass something akin to what Congress passed on Sept. 14, 2001 — the Authorization for Use of Military Force (AUMF) — the resulting legislation might be longer than Proust’s “Remembrance of Things Past.” Congress, remembering what is happening today, might stipulate all the statutes and constitutional understandings that it does not intend the act to repeal or supersede.

But, then, perhaps no future president will ask for such congressional involvement in the gravest decision government makes — going to war. Why would future presidents ask, if the present administration successfully asserts its current doctrine? It is that whenever the nation is at war, the other two branches of government have a radically diminished pertinence to governance, and the president determines what that pertinence shall be. This monarchical doctrine emerges from the administration’s stance that warrantless surveillance by the National Security Agency targeting American citizens on American soil is a legal exercise of the president’s inherent powers as commander in chief, even though it violates the clear language of the 1978 Foreign Intelligence Surveillance Act, which was written to regulate wartime surveillance.

Still, not all agree. I noted that Ed Morrissey played the war card earlier today-i.e., the notion that a president has expanded powers in a time of war as Commander-in-Chief. Of course, there is a small problem with the war card if we are going to use in the legal realm: we aren’t legally at war. Even if we were, I dispute the notion that such a situation automatically enhances the presidents power vis-a-vis the Congress just because we are “at war”-especially when those war powers are being used, at least in part, on US soil.

However, there has been no declaration of war, so to pretend like there is a special legal condition that affects the constitutional order is simply incorrect. Yes, in the general sense we are war. There are troops deployed and people are dying and there are very real threats that must be dealt with. But by that definition the last time we weren’t at war was some time back in 1941.

(I will grant Morrisey is correct for taking Will to task for referring to FISA as a law designed for wartime surveillance. I think Will was sloppy in the last sentence of the above-quoted paragraph. However, I still think Morrissey gets it wrong: FISA is in place for any kind of surveillance of domestic communications, so it wholly applicable here).

I would reiterate a point on this war issue I made sometime back: do we want to indefinitely imbue the president (and again, the next president could be Hillary Clinton or fill-in-the-blank) with extra-special wartime powers for perhaps decades until the long war on terror is utterly finished? Is this really a healthy thing to pursue for our democracy? As I wrote in December:

To put it in simplistic terms: if non-wartime is “normal” and wartime is “extraordinary” are we now saying that “extraordinary” is the “new normal”?

If that is true, let’s amend the Constitution and rewrite the laws. “Normal” requires regular rules. Only “Extraordinary” should allow for unusual, temporary powers.

As such, even if Bush is now a “wartime president” and will be such for the next three years, then we have to determine the proper institutional parameters for this “new normal.”

The bottom line is, the fact the there is a serious threat that must be faced doesn’t mean that the president (this one, or any other) can just ignore the law because they think that it is the right thing to do.

And Ed overplays the whole war notion by not really addressing the main issue, but concluding by asserting the need for unified command:

Congress needs to exercise care in its authorization for military force, and then let the American people exercise their check on the presidency by voting the “monarch” out of office. That’s the way the Constitution is structured, not to have 535 individuals micromanaging activities that clearly fall under the normal operation of war.

No one is asking for micro-management, nor is there any serious dispute about the need for a unified CinC. However, all those of use who are concerned with the program ask is that the appropriate checks and balances be put into place and that the president act within the bounds of established law.

And then we have Andrew McCarthy writing at NRO who takes Will to task as well(he calls the piece “a diatribe”), stating that since the whole thing is foreign policy, it is therefore the president’s realm anyway:

The administration’s position, and the program, is pertinent to governance in the field of foreign relations. In that field, whether Will likes it or not, the president has primacy — primacy of the same sort the Supreme Court enjoys in interpreting the Constitution and Congress in funding governmental operations. The president does not enjoy such primacy because of some Bush administration ipse dixit. It has been the law ever since we began living under the Constitution.

Yes, the president has primacy, but primacy is not totality. Not only did Will appropriately cite some of the ways in which the Founders intended the Congress to be involved in foreign affairs, I would also point anyone interested to a list I made last week.

A plain reading of the Constitution of the United States reveals the fact the Founders intended Congress to have a role in foreign policy and national security policy. Indeed, that many conservatives seem to be selectively reading the constitution to fit their view of things is troubling (and hypocritical since that is normally the charge that conservatives level at liberals).

Yes, McCarthy then quotes a number of Supreme Court cases that back his position about the President and foreign policy. All well and good, but he underplays a number of issues and focuses on items that are wholly foreign in nature. No one is arguing that the President does not have a very free hand in his action outside the US when pursing national security policy. However, to ignore the domestic side of this equation obfuscates the debate.

Further, McCarthy overplays his hand when he tries to downplay powers, such as the Senate’s role in treaties, to somehow deride the notion that the congress has any foreign policy role to play. He also makes far too little of the idea that congress can declare war.

I will concur with McCarthy, however, that Will’s use of the necessary and proper clause is a bit off. However, there is still the general fact the congress does have the power to set down in statute a good deal about the behavior of the president within the government of the United States.

At least I know that I am not wholly alone on this matter, as John Henke at QandO wrote today that Will made “makes excellent points.” I also concur with his assessment of Morrissey’s line about Will not being a conservative:

Incidentally and inexplicably, I note that Captain Ed blogs on this story, writing that George Will “isn’t exactly a conservative, but he usually covers the center well enough.” What the…?!?!?! In what alternate political reality is George Will not a conservative?

Perhaps this is evidence of Glenn Greenwald’s hypothesis that “‘conservatism’ is now a term used to describe personal loyalty to the leader (just as “liberal” is used to describe disloyalty to that leader), and no longer refers to a set of beliefs about government.” I simply cannot imagine the thought process that would lead one to conclude that George Will is a centrist.

It was an odd statement, to be sure.

And really, I keep wondering how the President’s defenders would be reacting right now if it was Bill Clinton (or Al Gore, or John Kerry, or Hillary Clinton) who was doing what George W. Bush is currently doing. I suspect that any many cases, at least, the response would be quite different (and, vice versa, there are a number of current critics who would be in support).

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