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The Left Is Right About One Thing
Posted by: Dale Franks on Sunday, January 08, 2006

Ah, the last few days, screwing with the easily inflamed Lefty-boys has been fun. Nothing like a little trolling to bring out the moonbats. But, you know, at the end of the day, they are right about one thing: Congress has, through the Authorization for the Use of Force (AUMF), given the Bush Administration, and, really, any administration that follows, too much of a wartime mandate. As Jonathon Rauch opines in National Journal, that was probably unwise. And, it doesn't matter what authority Congress intended to give to the president, what they passed has to be evaluated on its merits alone. And on its merits, it was probably too broad.
Congress should have understood that presidents, given war-making authority, take it and run. According to Bush, what Congress was in fact giving him was the power to pursue the enemy on the battlefield as he sees fit. And it was giving him the power to decide, unilaterally, who the enemy is. And to define the battlefield — again, unilaterally.

Define it he did. In a July hearing before the U.S. Court of Appeals for the 4th Circuit, a federal judge asked if the administration was "prepared to boldly say the United States is a battlefield in the war on terror." Replied Paul D. Clement, the solicitor general: "I can say that, and I can say it boldly."

In other words, says Tim Lynch, the director of the libertarian Cato Institute's project on criminal justice, "From Anchorage to Dallas to Honolulu, it doesn't matter — it's all a battlefield."

That's an accurate representation of the AUMF, and of the authority the Bush administration is claiming. The really troublesome thing about the Bush administration's claim to wartime power is that, if the War on Terror is a generational conflict, he gets to claim executive wartime power essentially for as long as the sun burns hot is space. That is a key difference between the Bush Administration and former administrations that were handed wartime powers by Congress.
Yet there is an important difference between Bush's behavior and that of Lincoln, FDR, and Truman: time.

The Civil War, World War II, and, to a lesser extent, the Korean War were intense, acute conflicts. Lincoln, Roosevelt, and Truman believed they were taking emergency measures during a conflict that they expected to be short. When it became clear that the Civil War would drag on, Lincoln went to Congress for the 1863 Habeas Corpus Act, formally legalizing his detention policy. Lincoln understood that he could not run a long war on a fly-by-night basis.

Bush, in contrast, seems determined to treat the war on terror as a permanent emergency. The administration says the 2001 use-of-force resolution allowed the government to collect battlefield intelligence here at home, superseding FISA. Invoked immediately after an enemy attack, that argument makes legal and strategic sense. Warrantless domestic surveillance and legal improvisation seem fine for four days, four weeks, or even four months.

But four years — with no end in sight? Bush seems to have had no intention of regularizing his surveillance program by building a legal framework for it. Instead, his plan apparently was to run a secret domestic spying program outside the boundaries of conventional law for, well, how long? Decades? Forever?

The legal implications of Bush's program will take months to parse, but the strategic implications are no less worrisome. Like the Cold War, the war on terror is a long war of attrition. Tim Naftali, an intelligence historian and the director of the presidential recordings program at the University of Virginia's Miller Center of Public Affairs, notes that people get tired of wars and that skullduggery provokes public backlash. In the Cold War, secret domestic spying went on for years, only to eventually blow up in the face of the intelligence community.

"The administration is just saying, 'Trust us,' and you can't go on doing that for 20 years," Naftali says. "At some point, you've got to regularize this, because you can't lose your soul fighting terrorism. And terrorism is a chronic problem."
As we've mentioned here before, this open-ended warrant that the Congress passed is unwise. Ultimately, under our system of Congressional supremacy, the best solution would be to time-limit the president's wartime authority, by giving the president wartime authority for, say two years at a time, instead of the open-ended warrant of the AUMF. Because, what the president has done—what any president would do—is take that warrant and run with it. And that has created some troubling results.
And so Bush has claimed power, as commander-in-chief, to redefine limits on the detention and interrogation of prisoners. He claims the power to seize U.S. citizens on U.S. soil and to hold them without formal charge in a military brig for as long as he wants, without meaningful access to courts or lawyers. And now it emerges that he also claims the power to eavesdrop without warrants on Americans in the United States, in seeming violation of the 1978 Foreign Intelligence Surveillance Act, known as FISA.

In peacetime, these breathtaking claims to unilateral executive authority would be shocking. But America is at war. By the standards of wartime presidents — with an important exception, about which more later — Bush is a pussycat.

America is ill-served when Congress grants the president a wartime warrant for an indefinite periodYes, it's true that, compared to FDR, Bush has been relatively restrained in his use of executive power. But, in a generational conflict with terrorism, do we really want an administration to claim an open warrant to detain US citizens as enemy combatants, without allowing them access to Federal courts?

I think the answer is "no". If you want to detain the heathen foreigners you pick up on the battlefield, that's one thing. But once you apply that to American citizens like Jose Padilla, then I think the administration is pushing too far.

Yes, we want the administration to ruthlessly pursue our enemies, but in an amorphous conflict like the War on Terror, the Congress must also assert its authority to oversee the activities of the executive branch. So far, Congress has abrogated this authority, and that's wrong.

As we've advocated before, in the post referenced above, Congress should pass an AUMF that is time-limited, so that every year, or every two years, Congress can review the actions of the Administration, and renew or lapse the AUMF depending on whether Congress feels the president's warrant should continue.

Ultimately, it is Congress—not the president—that must pass judgment on whether America is at war. When Congress abrogates that authority, and turns it over to the president, then we are ill-served by Congress. Congress, of course, wants the best of both worlds: to give the president plenary authority to conduct the war, while sniping at the president's conduct from the side. This is morally obtuse. Congress should fulfill its war-declaration powers responsibly, and should exercise appropriate oversight of the executive branch.

Moreover, Congress should set firm rules for the detention and/or trial of American citizens who the Administration declares to be "enemy combatants". As the case of Jose Padilla illustrates, the default position of the Administration is that American citizens who are declared to be "enemy combatants" is that they can be held indefinitely without trial.

I don't think that's right, and I never have, as I've argued for the last three years.

America is ill-served when Congress grants the president a wartime warrant for an indefinite period.
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Previous Comments to this Post 

America is ill-served when Congress grants the president a wartime warrant for an indefinite period.
That may be, Dale.

But, I will be quick to point out, as I have for quite a while, that we’ve been under such a stance since December of 1941, and that as such all the Administrations from FDR on down, have ALL had an open warrant to detain US citizens as enemy combatants, without allowing them access to Federal courts. I’ll point out further that the power, to the best of my understanding, has not been abused, and used only at extreme need. (Certainly, we may consider that such abuses would result in a lot more screaming than we’re hearing... and certainly it would be focused on more than just this president)

However you interpret THAT little tidbit, the fact remains that no Congress... this one, or previous, all the way back to when Glenn Miller was making records... has given thought to challanging that status. Not one.

Further, knowing such powers were already in force should have played heavily on the congres- scritters, were they so concerned about limiting the presdent’s power, at the time Congress approved our actions in Iraq. I find it interesting that they decide to cry about it now, in the runup to an election. Why it’s almost as if such wailing was politically motivated. (And yes, I should say I understand your motives to be somewhat different.)

I will also say, regarding that the point about putting time limits in place;
Please consider the discussions about a timetable in Iraq. If a timetable is foolish there... and I take it we agree it is... isn’t a timetable on presidential wartime powers equally foolish, for the very same reasons?

One more point; The Padilla case illustrates one thing more, that is somewhat less a worry than the ones you mention. Presidential power as regards detention of enemy combatants has not been used in a wonton fashion, by ANY president since FDR, without what I would call just cause. Padilla certainly qualifies as a bigtime nasty... and I woulkd agree that he’s big enough a problem that about any court would hold him. But would they?

I guess that whole question tha Padilla brings up; Are there some dangers that which are not to be trusted to our court system? Before you answer that, consider, please, all the roytal screwups we’ve seen come out of that system. Can we risk a Padilla getting out on bail because the Judge was feeling generous that day, or is pissed at the goverment for some weird reason... or worse, because of corruption of some sort, which is also decidedly possible, particularly in wartime.

In the end, fully half the issue of power, limits on it, and how it gets used, is how it’s actually used... and the quality of the people using it. Given the history of these powers, I’d say we’ve done fairly well, your discomforts not withstanding. I submit to you the more limits we place on a commander in times of war, the more helpless, in the end, we will be.

The founders... wisely, I think... did not place time limits on Presidential war powers, for a reason: To prevent being pulled out before the job was done, in the commander in chief’s opinion. Our system of government was never designed to allow Congress the power to over-rule that choice. Seems to me, you’re now proposing changing that situation, and giving them that power.

Written By: Bithead
I agree with Bithead, this is one of those things for which, a pristine theory of Libertarian governance runs headlong into the dangers of the modern world. It would be nice to think that we could just shut ourselves off from the rest of the world and live in a Jeffersonian Utopia, but thats just not possible.
Lets see just how long our liberties and or economy survive if a Nuclear bomb goes off in an American city. As long as the president,(whomever he/she is) is using these powers sapringly and keeping the congress informed, I am not so upset about it. If, on the other hand, an andiminstration uses these powers to say, spy upon political foes like Nixon did, then they should be dealt with by congress, the courts and the voters.
Written By: kyle N
Congress can always change the rules. That’s why we have one instead
of relying soley on a single man to make the laws.

Speaking of Congresses running wars though, they proved from the get go
they couldn’t do that properly. Supply, planning, veterans benefits? Ask the gentlemen in the Continental Army how well the Continental Congress delivered on all their promises.

Still, we certainly don’t need precedent for who ever next sits in the
big chair that says they can do as they like in the name of "keeping us

Congress should make it clear what they meant the Presidential authority to be (again), and soon.
Written By: Looker
URL: http://
It appears to me that the practical alternatives are the use of some force over a protracted period with attendant degradation of civil liberties at home or the use of significantly more force over a short period with attendant loss of innocent life. It’s a wicked problem.

I favored the latter, a clearly immoral stance but IMO the better of the alternatives, but there was obviously no political consensus for such a course of action. American voters and their elected representatives are notoriously short-sighted.
Written By: Dave Schuler
Congress can always change the rules
There’s much in the way of argument that they cannot.
It’s a little long, but the case involved application of the Miranda laws, And Congress is 1968 desire to foundationaly change those laws. The Court at that time ruled that since Miranda was "constitutionally rooted," it could not be modified by statute.

The take I’m seeing from a few places, is that concept, any attempt to limit the President’s authority in the matter, is invalid.
has further details, on this.

I did some study and Dickerson a few years ago with regards to an argument on Miranda, so the read rings true to me.
Written By: Bithead
Unless of course someone wants to challange the constitutionality of the President’s Article II powers.... which should be amusing.

Written By: Bithead
I reviewed the text of the Constitution, and don’t see it, but I’m not exactly a justice either.
"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"
The president is sworn to uphold the Constitution itself, not the country, rather ironically.

Only Congress can declare war, only Congress can finance a war,
Therefore there’s a limit from the get go - Congress doesn’t have to give him
the money (Iran Contra).
Course we have to actually CALL it a war (though God knows George keeps telling everyone that’s what it is....)

They have a lot of ways to stop him if they don’t want him to continue.
And in any event, he can only do it for 4 years at a time (presuming no
impeachments) or 8 years at a time if he convinces the populace he’s right
and Congress isn’t.

There’s all kinds of limits in place, they’re just not limits that take effect

They have to have the determination to do it though, and right now both sides
are so busy paying attention to ’party in control’ they don’t recognize the
bigger picture. The Dems and the NY Times would claim it was a Constitutional violation even if it wasn’t and the Reps would claim it wasn’t even if it were and vice versa if the power balance was reversed in Congress and the White House.

Reasonable voices from either side are totally lost in the din right now.
So while George expands the power of the Executive branch for the future occupants Congress fiddles.
Written By: Looker
URL: http://
Thank God for GWB and the administration’s interpretation. As Bithead says, it’s been this way since Pearl Harbor. The quip about "absolute power" is a straw man, elections every four years see to that. Let the Congress sort it out and change it if they think they need to. I personally believe they prefer it this way. They have no responsibilities, and have a press conference green light to bitch about it.
Written By: Abu Qa’Qa
URL: http://
The quip about "absolute power" is a straw man, elections every four years see to that
Yeah. I learned about that one in high school, for pity’s sake; in a wartime situation the way to overrule the president was for the population to vote him out.
Written By: Bithead
As for what Congress can and can’t do....
Article 1, section 8, paragraph 18
"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States,or in any department or officer thereof."

" They have no responsibilities, and have a press conference green light to bitch about it."
But I’ll go with the preceeding conclusion that they like it this way.

They can claim credit along with him when it goes well, and hang him by his
thumbs when it doesn’t. Like we do when the economy sucks, or when terrorists
fly planes into buildings on his watch, or when the guards at Abu Graib abuse the prisoners, or when the permafrost melts in Northern Canada.
So little time in many things to be blamed for....
Written By: Looker
URL: http://
Article 1, section 8, paragraph 18
"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States,or in any department or officer thereof."
True. However; the problem with your analysis at this point, is the logic within Dickerson as I cited.... that assuming the powers used by the president in this case were constitutional, then any attempt by Congress to limit his ability to act within those Constitutionally granted powers, is, by definition, unconstitutional.

There’s another subplot too, surrounding this entire affair. It appears that at least one and possibly more FISA judges has been leaking to the press.

The monstrously unethical behavior of the judges in this case aside for the moment, it strikes me is eminently arguable that the White House faced a real national security issue in the FISA court.. and was thereby forced into a hard choice, and decided the constitutional power as originally laid out in article two were the best course.

Written By: Bithead
Pendulum. Things go in the direction they need to until they go too far, then we go the other way for a while. I don’t think we’ve reached critical mass to push the pendulum back yet. Yet.
Written By: Nathan

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