Secret Legal Memos and the Meaning of "War"
The explosive legal memos of the Bush administration released yesterday justify presidential privileged that supersedes many laws and constitutional protections. They assert that president could unilaterally abrogate
foreign treaties, ignore any guidance from Congress in dealing with
detainees suspected of terrorism, and conduct a program of domestic
eavesdropping without warrants.
The justification for such strident executive privilege is based on the notion that the president, as Commander in Chief, has the right to take any and all action necessary in a time of war to defeat an enemy. The word "war" appears in the memos several times such as in the following example:
"First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."
I don't mind if my dentist wants to call the campaign against Al Qaeda a war. I don't even mind if the talking heads on cable news continue to go on about the "War on Terror." Everyone knows what they mean.
It should not be forgotten, however, that "war" has a specfic legal meaning in the United States. War can only be declaired by the Congress and, indeed, in a legal state of war, the Commander in Chief is endowed with certain special privleges. But, in a state of warfare or "virtual war," such as we've been in since 9/11, the Commander in Chief has no special legal authority.
I would not expect Joe the dentist or Sean Hannity to be sticklers for the legal definition of war. Fighting is fighting. It's all some form of war. I would, however, expect that the president's legal council makes that distinction. If he or she does not, who will?
The very reason the Founders gave Congress the sole prerogative to declare war was to prevent the president from abusing his authority as Commander in Chief. If the president had the right to declare war at will and in so doing be granted special legal privileges that enabled him to circumvent the constitution, we would have a serious problem on our hands: a dictatorship in all but name.
The secret legal memos just released suggest the administration was operating as if in a legal state of war despite there being no congressional declaration. This to me is one of the most disturbing breaches of the constitution committed by the Bush administration and the key reason why the legal arguments are inherently and absolutely indefensible.
But what do you think?
...
The justification for such strident executive privilege is based on the notion that the president, as Commander in Chief, has the right to take any and all action necessary in a time of war to defeat an enemy. The word "war" appears in the memos several times such as in the following example:
"First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."
I don't mind if my dentist wants to call the campaign against Al Qaeda a war. I don't even mind if the talking heads on cable news continue to go on about the "War on Terror." Everyone knows what they mean.
It should not be forgotten, however, that "war" has a specfic legal meaning in the United States. War can only be declaired by the Congress and, indeed, in a legal state of war, the Commander in Chief is endowed with certain special privleges. But, in a state of warfare or "virtual war," such as we've been in since 9/11, the Commander in Chief has no special legal authority.
I would not expect Joe the dentist or Sean Hannity to be sticklers for the legal definition of war. Fighting is fighting. It's all some form of war. I would, however, expect that the president's legal council makes that distinction. If he or she does not, who will?
The very reason the Founders gave Congress the sole prerogative to declare war was to prevent the president from abusing his authority as Commander in Chief. If the president had the right to declare war at will and in so doing be granted special legal privileges that enabled him to circumvent the constitution, we would have a serious problem on our hands: a dictatorship in all but name.
The secret legal memos just released suggest the administration was operating as if in a legal state of war despite there being no congressional declaration. This to me is one of the most disturbing breaches of the constitution committed by the Bush administration and the key reason why the legal arguments are inherently and absolutely indefensible.
But what do you think?
...
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I think the powers claimed by this President are completely beyond the pale. I'm not at all sure that even a state of active, legally-declared war would permit the excesses described. In fact, I'm as sure as a layman can be that it would not. I think we finally MADE it all the way to a circumstance that the dark side of Nixon only imagined (with some of the same actors in lead roles both times).
I've been a bit reluctant to pursue the various lines of investigation proposed by Congress and others into these matters. Like many Americans, I've been inclined to let bygones be, and move forward on the many pressing current problems we have.
Now, I'm not so sure. These abuses appear so staggering that I'm starting to think we're DUTY-BOUND as a people to look at it, and come to terms with it - no matter the short-term costs.
March 3, 2009 11:37 AM | Reply | Permalink
Amen!
No, the claimed powers are unconstitutional - no matter what!
Yes, I agree. We have an obligation to investigate all of this. And prosecute those who designed, authorized and supervised these outrages.
March 3, 2009 4:22 PM | Reply | Permalink
Cable has covered it and there is the NYT coverage.
But I check Huff, and salon and politico and Beast and I thought there would be a bigger stink about all this.
Maybe I am looking in the wrong places. But Keith O and Rachel were on this.
There is a big issue that was spoken about a fortnight ago concerning possible prosecutions of attorneys for intentionally coming up with bogus analyses. And various Offices of Professional Responsibility are looking into this.
I thought I would be reading scores of articles from top attorneys. John Dean is all over this.
Good post. We need to talk about this.
March 3, 2009 1:02 PM | Reply | Permalink
You're right that we were never in a state of declared war. Unfortunately that "quaint" legality was absent for other "wars" and bush simply took advantage of something prior presidents had done.
I agree that should not happen.
Nevertheless, these secret memos were in contradiction of our constitution and treaties. The horror here is that bush rushed to war, in order to seize powers that were not legal in the first place. And the second "war" - in Iraq - was never necessary. Just ginned up via propaganda.
So it's one outrage on top of the next. And all along so many of us have asked: What else don't we know?
March 3, 2009 4:20 PM | Reply | Permalink