I was afraid reporters were going to start running out of angles to this story. Thankfully, the LA Times’ David Savage and Richard Schmitt thought of a new one.
We’ve heard all about the Bush administration’s belief that the president is above the law in using torture in the war on terror. We know the administration is placing the president’s power above the Constitution, international treaties, and the Geneva Conventions. But the LA Times noted that Congress is getting usurped as well.
In past wars, presidents have claimed special powers. During the Civil War, President Lincoln suspended habeas corpus and allowed accused traitors to be tried before military courts. Shortly after the Japanese attack on Pearl Harbor, President Franklin D. Roosevelt issued an order authorizing the military to intern thousands of Japanese Americans.
In those instances, however, the president acted with the approval of Congress. Rarely, if ever, have the president’s advisors claimed an authority to ignore the law as written by Congress.
The legal memo, written last year for the Defense Department and disclosed this week, did not speak for President Bush, but it claimed an extraordinary power for him. It said that as the commander in chief, he had a “constitutionally superior position” to Congress and an “inherent authority” to prosecute the war, even if it meant defying the will of Congress.
At least when Reagan defied the will of Congress by illegally funding the Contras, he had the decency to do it secretly and lie about it later. The Bush administration, in its infinite bravado, is spelling it out quite plainly: the White House and Congress are no longer co-equal branches of government.
The Times article notes that Congress passed a law in 1994 barring the U.S. from using torture. It’s not the Bush administration was unaware of the legal restraints passed by Congress; it’s that they decided the restraints were inconvenient and, therefore, should be ignored.
“Congress lacks authority … to set the terms and conditions under which the president may exercise his authority as commander in chief to control the conduct of operations during a war,” the memo asserts. “Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe [the law] to avoid this difficulty and conclude that it does not apply to the president’s detention and interrogation of enemy combatants.”
Doesn’t this seem like the kind of thing that would draw a harsh reaction from Congress? I know GOP leaders have intentionally been ceding most of their power and authority to the other end of Pennsylvania Avenue, but have they no pride?
At the risk of sounding overdramatic, it’s stories like this one that make me believe that Bush is not only wrong, he’s dangerous.
[A]ccording to several mainstream legal scholars, this turns the Constitution on its head. The 18th century document says Congress makes the laws, and the president has the duty to carry them out.
“He shall take care that the laws be faithfully executed,” the Constitution says of the president.
Moreover, the Constitution grants Congress specific powers to set the rules in war and peace, including for captives.
“Congress shall have the power … to declare war and make rules concerning captures on land and water … to define offenses against the law of nations [and] to make rules for the government and regulation of the land and naval forces.”
A broad range of legal experts, including specialists in military law, say they were taken aback by this bald assertion of presidential supremacy.
“It is an extraordinary claim. It is as broad an assertion of presidential authority as I have ever seen,” said Michael Glennon, a war law expert at Tufts University. “This is a claim of unlimited executive power. There is no reason to read the commander-in-chief power as trumping the clear power of Congress.”
University of Texas law professor Douglas Laycock added, “It can’t be right. It is just wrong to say the president can do whatever he wants, even if it is against the law.”
This story has been in the news all week, but I’m yet to hear/see a single defense from anyone. The administration articulated this truly radical legal approach, but no one — not the White House, not congressional Republicans, not right wing talking heads, not conservative blogs — seems to have come up with a response. In fact, they haven’t said a word.
You don’t have to be a rabid Bush-hater to criticize what is obviously an insane attitude towards constitutional law. Conservatives’ collective silence speaks volumes.