Tuesday, January 27, 2004

This is the third in a weeklong series on the law and war on terrorism.

Of all the objections to treating the war onterror as an armedconflict, rather than a criminal justice matter, the most credible involve the potential abuse of power. If the laws of war apply, then governmental power, especially the president’s, expands with, some complain, little limitation.

Indeed, the World Trade Center’s ruins were still smoking when dark predictions of a future “national security state” started circulating. Enactment of the Patriot Act, increasing the government’s ability to conduct surveillance within the United States, and the administration’s assertion of the right to detain American citizens as enemy combatants seemed to justify these fears. If President Bush can designate a suspected al Qaeda member as an “enemy combatant,” and then detain him without trial or even access to a lawyer, what prevents a less conscientious president from secretly whisking away personal enemies, political opponents or even irritating editorialists on the same pretext?

The answer, of course, is that the very same structural constraints that prevent a president from making people “disappear” in peacetime also apply during war — and these are not primarily, or even largely, judicial in nature. If the Constitution’s framers understood anything, it was the potential abuses of power. Schooled before “self-esteem” and “relevance” came to dominate education, the framers studied Latin, Greek and how ancient republics had fallen to ambitious men. They planned ahead. Under the Constitution, even in war, critical governmental powers remain divided between the president and Congress.

The president is commander in chief, but only of the military forces authorized and paid for by Congress. He cannot raise or spend a single dollar if Congress refuses to cooperate. He cannot commission officers without the Senate’s consent, and it is Congress’ right to “make Rules for the Government and Regulation of the land and naval forces.” As in peacetime, the president remains dependent upon Congress for the passage of his legislative program, and, as an ultimate sanction, he can be impeached and removed from office. Presidents have, of course, been impeached for far lesser sins than the arbitrary imprisonment of the innocent. These are the ultimate means by which a president “gone off the rails” can be disciplined.

Significantly, in such circumstances, the framers would not have expected much from the courts, which they considered to be the “weakest branch.” The British experience had taught them that only a powerful legislature, with independent powers and a broad constituency, can checkmate a willful executive, just as Parliament had once checked the king. Nevertheless, over time, the judiciary has acquired an important role in balancing presidential authority during war.

Questions involving the nature and extent of governmental power during war have often come before the courts, both during and after a conflict. Sometimes, the courts have upheld the president’s actions — affirming his right, for example, to apprehend, detain and ultimately punish irregular combatants during World War II. On other occasions, they have struck down executive action — as when the Supreme Court affirmed, again during World War II, that civilians cannot face military courts, so long as the civilian courts are operating, even in territory (Hawaii) threatened with invasion.

Finally, the existence of a mature civil society, including an aggressive media suspicious of governmental power, also mitigates against potential abuses. Indeed, in modern American political history, it has been the media’s reporting, whether the Watergate break-inorthe Clinton-Lewinsky liaison (and the resultant cover-ups), that shaped public opinion and ultimately prompted congressional action. Similarly, the existence of political parties and the vertical separation of powers, under which states retain considerable sovereignty and autonomy, serves as a further bulwark against repression. While presidents receive great deference from their political parties, they never receive unquestioned obedience. Indeed, independent-minded Republican and Democratic politicians, such as Howard Baker in the case of President Nixon or Joe Lieberman in the case of President Clinton, stepped forward to challenge presidential misconduct.

Overall, the very fact that the most controversial steps taken in the war on terror, including the detention of American citizens on U.S. territory as enemy combatants, are regularly debated in Congress, the media and elsewhere, and are being reviewed by the courts, suggests that the system designed by the framers is working perfectly well. Merely because Congress has not taken action, as many administration critics would like, to limit the president’s ability to detain enemy combatants or to require their immediate trial or discharge, does not mean that we are on the precipice of some new Dark Age.

Similarly, if the Supreme Court ultimately upholds the president’s detention of enemy combatants without trial during the conflict, it does not mean that the United States will have somehow violated its own most sacred traditions, as was claimed in a brief recently filed by more than 100 members of the British Parliament. The Constitution, as Justice Robert Jackson aptly noted, is not a suicide pact. It does not sleep during wartime, but neither does it prevent the president from taking effective action to defend the citizens and territory of the United States. Indeed, it requires him to do so.

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker & Hostetler LLP and served in the Reagan and Bush 41 administrations.

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