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President and Military Matters The present war on terror carries the everlasting questions of war powers, constitutional constraints on presidential actions and power during times of crisis. We will examine the role of presidency in military matters with consideration to the central and historic issues of the proper and constitutional function of the president. While the Congress enacted the War Powers Act, the National Emergencies Act, and extra half-dozen or so pieces of legislation to successfully end a constitutional crisis and concurrently apply long-overdue constraints to the "imperial" presidency. Or did they really?
Was it congressional courage and a principled belief in separation of powers and checks and balances that ended the multiple nightmares of Watergate, a potential presidential impeachment and conviction, and the Vietnam misadventure? Or was it just that the prerogative presidency could no longer be justified at that moment in time and was temporarily no longer needed? (Richardson, 1984). It is challenged, contrary to the spoken idealism of so many previous colleagues in both the areas of the presidency and constitutional law. War and peace are not the same things and cannot coexist simultaneously in the same place at the same time. War and emergencies are the sharp tests of constitutionalism, particularly of the kind embodied in our written Constitution.
And emergencies short of war, whether insurrection, acts of domestic or foreign terrorism, domestic violence, riot, economic depression, flood, famine, or fire, present the same problem for a constitutional democracy as war itself. The over-all pattern of treatment is substantially the same, varying in details and measures taken, according to the type of the particular emergency, and according to the presence or absence of statutory or constitutional provisions applicable to the given situation. (Matthews, 1996). The chief and almost invariable characteristic of this pattern is the disturbance of the normal constitutional balance and the concentration of broad discretionary powers in a single person or office -- and in the United States that always means the presidency! Despite of the fact that war enlarges the powers of government and, equally, narrow the allowable areas of individual and institutional freedom, there is room for the essential organization and exertion of authority to secure the nation's welfare, in war as in peace.
The followers of totalitarianism are simply wrong when they assert that democracy cannot survive war or dire emergency. In the United States, the answer to that has been the development of the theory of emergency powers lodged in the president. At the same time that the powers of government were being expanded in their use, the processes of government have remained essentially democratic. It seems reasonable to assume that they can continue so as long as the people desire it. (A Report of the CSIS, 2000). Can our basic law in the form of the Constitution at any time be sacrificed to the actions of the president? The answer is yes - under proper situation, and only by the use of appropriate procedures.
Although the Constitution must be strictly followed in the infinite majority of circumstances, a power does exist, inbuilt in the president, to nullify existing laws for the welfare of the United States. This power is what John Locke referred to as "prerogative, " and its use is justified by the principle salus populi suprema lex (the well-being of the people is the ultimate law). Locke described the notion as follows: This authority to act according to discretion, for the Public good, without the prescription of the Law, and sometimes even against it, is that which is called Prerogative. For since in some Governments the Lawmaking Power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to Execution; and because also it is impossible to foresee, and so by laws to provide for all Accidents and Necessities that may concern the Public, or make such Laws as will do no harm if they are Executed with an inflexible rigor, on all occasions, and upon all Persons, that may come in their way, therefore there is a latitude left to the Executive power, to do many things of choice, which the Laws do not prescribe. (Locker, 1975).
Locke had identified the monarch's extraordinary circumstances in relation to the governing body as a main cause for making prerogative an executive power. Yet infinite power, even if implemented because the president perceives it to be in the best interests of the nation, is dangerous to the healthy continuation of limited government. If the cure is to remain less harmful than the disease, prerogative must be narrowly and specifically circumscribed. The president must know that the exercise of prerogative is subject to strict review; that while he may have the power to execute acts that are called unconstitutional, such actions may be taken only in response to a dire emergency and then only subject to certain specific limitations. (Locker, 1975). In periods of terrible national emergency the president must exercise prerogative power.
Both Lincoln and Franklin Roosevelt started prerogative based on the identical doctrine of paramount necessity: the preservation of the nation supersedes devotion to the Constitution. Free government is not only consistent with prerogative, it is dependent upon a strong and effective government, of which prerogative is a part. If the United States desires dynamic, forceful leadership from our president, why would we possibly wish to reject the extraordinary use of prerogative power and risk destruction of our system of constitutional democracy. (Quoted in U. S.
Senate, April 1986). There is small hesitation that constitutional democracy can be lastingly changed by the practice of privilege powers over an extended period of time. Wars and emergencies still happen; power must still be exercised; and constitutional liberties and the very structure of the governmental system itself sometimes needs to be sacrificed. What is needed is not prohibition but rather specific guidelines so as to constitutionalism of the use of presidential power. (Richardson, 1984).
There is also modest uncertainty that the national government exercises powers as potentially far reaching as the power of complete monarchs. The distinction is that in the United States, under the regulation of law, privilege powers are generally not exercised randomly. In reality, a paradox arises here. If the Constitution does not provide for the particular exercise of power, but the exercise is absolutely essential in order for the nation to survive, is the Constitution defective for not granting the power? (Rousseau, 1987).
I answer this quandary by suggesting that we exist under the two different constitutions - one for peace and another for war; and whatever exercise of power that cannot be justified under one rubric can be under the other. It is probable that because any set of structures and laws (particularly in a document more than two centuries old) is found to be somewhat dated and because the written word can never totally capture the ambitions of a society, we have to be prepared to talk about a different notion of constitutionalism: an expansive constitutionalism that serves the needs of a contemporary society while maintaining important links with the past. (Matthews, 1996). What any study of our fundamental law will show is that trying to expand a textual justification of legitimate clauses for the use of privilege power of president is extremely difficult. The Constitution contains its own internal contradictions that on the one hand supply the government with the means for its own protection in form of waging war, but on the other hand limit those very same means. In fact the word "war" has two meanings. It indicates acts of war, and the international conditions of things called a "state of war. " Acts of war do not all the times or unavoidably develop into the general international condition of things called a state of war, but they are nevertheless war and involve the "making" of war in a legal sense. (Rousseau, 1987).
Certainly, in distinction to a condition of war, an act of war is a self-sufficient episode to which the injured party - the United States since 11 September 2001 -- has the right to respond with war. But, we may ask, against whom? Technically, no nation has taken recognition for the attack. No nation, except Afghanistan, has been singled out to feel the awesome military power of the United States.
Why? Surely, we were not militarily attacked by Afghanistan. Rather, we were attacked by a group of individuals from a terrorist system, under the direction of a single person, who happens to reside temporarily in that country. That country gave him and his network safe sanction.
In other words, we attacked - and continue to attack - Afghanistan because the facts of geography have placed the individual we seek in that particular location. But can we "make" war against a individual? Can we "make" war against a terrorist network or even against worldwide terrorism? The answer is probably yes! We are making war, but have not "declared" war.
Under those facts the provisions of the War Power Act (WPA) should apply; yet the Congress shows no inclination to invoke the constraints of the law. Short of a declaration of war, which removes virtually all constitutional limitations on the president's ability to wage war and defend the security of the United States, there are -- or at least should be - some limits to the president's power as commander-in-chief. (Rousseau, 1987). In spite of of what the existing president chooses to name it, we are engaged in a military exploit that unhappily raises more questions than it supplies answers. And it creates a most hard problem, not only for the United States in universal but also for the president in particular. How do we learn to live with emergency power, because the citizenry is going to tackle the consequences of its exercise whatever they may desire and whatever the Constitution implies? So long as the need continues for rules to government, prerogative (Locke's term for reason of state) will be justified when those rules prove temporarily insufficient to the task.
In the face of crisis, the acts which are necessary to preserve the nation, constitutional or not, are acts which must be undertaken. That burden of taking action in extraordinary circumstances - in emergencies or other situations, which are thought to demand action for the preservation of the nation and its basic values - must fall to the president. There is no one else, personally or institutionally, who is sufficient to the need. (Dicey, 1982). President Bush's decision-making order creating military tribunals to seek those suspected of links to terrorism has aroused little civic dislike. Why? Because people do not appreciate the order's unsafe breadth.
The order is described as if it is aimed only at Osama bin Laden and other terrorist leaders -- the so-called "masterminds" of the 11 September attacks who (it is oftentimes argued) do not deserve constitutional protection. But the Bush order covers all noncitizens, and there are about 20 million of them in the United States -- immigrants working towards citizenship, visitors and the like. And the order is not directed only at those who mastermind or participate in acts of terrorism. In other terms, it covers such things as "harboring" anyone who has ever aided acts of terrorism that might have had "adverse effects" on the United States' economy or foreign policy. (Graham, 1999).
It is usual to consider the policy largely in association with those states, which have been proponents of authority, autocracy, and absolutism. Yet, we must always remember that the problem of security faces the constitutional order and government of law just as much as it does an autocratic government. When the emergency occurs and the idea of total safety proves to be fleeting, how much repression of fundamental rights are we then willing to accept? Are we willing to wipe out the Constitution in order to survive? If we are, how do we return to democratic, constitutional government when the emergency is over? (Matthews, 1996). On a few times, acts of war have been treated as exterior Sixth Amendment protection.
Lincoln and Wilson sometimes used military commission to question combatants and noncombatants alike. The World War II time is the most relevant; and, at the same time, the most misunderstood of all precedents. Roosevelt set up a military tribunal to try Nazi saboteurs who landed on U. S. shores in 1942. (Graham, 1999). But that example demonstrates the very danger of the Bush order.
The present order is unlimited, in a fight against terrorism that could go on for years. And the Bush order could easily be extended to citizens, under this administration's legal theory. Because the Sixth Amendment makes no distinction between citizens and aliens, the claim of war exigency could sweep its protections aside for anyone in this country who might fit the vague definitions of aiding terrorism. Up to this point the problem presented is clear enough.
The nation faces a crisis and takes action to combat it. Whether the action taken is strictly constitutional. (Powell, 1999). Necessity takes over from the law of the Constitution. And so long as the emergency continues, and the problems it presents persist at the same intensity level, the people and the courts will generally go along. Here, however, the situation changes.
We have an obvious emergency with great loss of life; but all resemblance to the necessary precedents of the past begin and end at that point. Now the problem becomes much more complicated. Given the vagueness of the order, and the separate and proposed equally vague USA Patriot Act, the potential to abuse both the presidential order and the congressional enactment does not seem so far fetched. But President Bush would never let his order be abused, said a recent defender of the Bush's position. And that comment is the crux of the very dangerous problem we face. From the beginning of the Republic, Americans have refused to rely on the graciousness of our leaders.
We rely on legal rules. (Matthews, 1996). The Framers of our Constitution consideration its vast defense against tyranny was the division of the federal government's powers into three departments. Each, they reasoned, would check abuse by the others. That is the greatest danger of the Bush order. It was an act of executive fiat, imposed without even consulting the Congress. And it seeks to exclude the courts entirely from a process that may fundamentally affect life and freedom. (Graham, 1999).
There is a tough propensity in time of war for many clear-headed citizens to demand a severer, harsher, more radical and more speedy enforcement of all types of police regulations than they would bear in time of peace. This is expressively thoroughly comprehensible and the need for greater effectiveness is to a large extent urgent and imperative. But the tendency can easily get out of hand, especially since those charged with enforcement are always inclined to be impatient of the restraints which orderly legal procedure has placed upon the free exercise of their vitally important and indispensable powers. In wartime the eagerness of all citizens to strike a blow for their country can readily translate itself into an impulse to strike a blow anyhow without too cautious an examination of whether it will in fact benefit the country.
In time of war, we are often told; we leave the rule of law and are governed by "necessity" which knows no law. The obligation of the president is to preserve the conditions under which the law can work, even if it is necessary to go beyond it. (Powell, 1999). Within the twentieth century, constitutional dictatorship (military law and legitimate emergency powers) was conceived in terms of preserving a constitutional structure rather than destroying it. In spite of the crisis, constitutionalism and the rule of law continue to survive.
Words: 2, 590. Bibliography: Rousseau, J. The Social Contract. IV, ch. 6, 13, 1987. Locker, The Case for Presidential Prerogative, 7 U.
TOL. L. REV. 59, 82 - 83 (1975). Quoted in U.
S. Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Final Report Book IV at 157 - 58 (April 1986). Richardson, J. Messages and Papers on the Presidents. New York: Viking Press, 1984. Dicey, F.
The Law of the Constitution. (10 th ed). New York: Stuart Publishers, 1982. Powell, T. "The American GI", Time, June 14, 1999, p. 71. Matthews, L. "The Politician as Operational Commander", Army (March 1996). A Report of the CSIS International Security Program (Washington, DC: Center for Strategic and International Studies, 2000), p. 72. Graham, B. "Joint Chiefs Doubted Strategy", Washington Post, April 5, 1999.
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