- The Washington Times - Monday, September 27, 2004

President George W. Bush is doggedly fighting an unprecedented post-September 11 war against global terrorism. The war features unprecedented or novel detentions and interrogations. But the president has neglected explicit congressional authorization for constitutionally troublesome elements of his counterterrorism warfare.

The commander in chief’s rebuff of even a junior partnership role for Congress has weakening his constitutional footing. Supreme Court cases have been lost, and others may follow because Congress has generally been excluded from the war fighting loop. The White House seems as fixated on extending the limits of solo presidential power as on winning the war itself.

President Bush parachuted into office convinced the powers of the chief executive had plunged to a dangerous historical low. The belief, however, was ideological fantasy. The U.S. Supreme Court had in recent years sustained the power of the president to revoke treaties without the consent of the Senate. The high court had voided legislative vetoes over executive branch, invalidating hundreds of handcuffs on the presidency.

A qualified constitutional privilege of confidentiality for presidential communications had been recognized. An absolute presidential immunity from damage suits challenging presidential decisions had been proclaimed. The notorious independent counsel law that anguished Presidents Ronald Reagan and William Jefferson Clinton had lapsed. The War Powers Act had withered into nothingness. And the president’s authority to exercise sweeping delegations of legislative power from Congress had been ratified.

But facts leave true believers undisturbed. Mr. Bush sallied forth to assert pioneering claims of presidential power in warring against Taliban, al Qaeda and international terrorists generally without express statutory underwriting by Congress. Legal challenges were thus invited.

By executive order, Mr. Bush set up military commissions to try alien enemy combatants for war crimes without customary procedural guarantees available in civilian courts. Their constitutionality has been attacked in pending prosecutions.

Mr. Bush denied Guantanamo Bay enemy combatants access to federal courts to contest the legality of their detentions under federal habeas corpus statutes. He declined to seek amendments to explicitly exempt the habeas corpus right from enemy combatants captured on the battlefield. That neglect influenced the Supreme Court in Rasul vs. Bush to grant the detainees habeas corpus protection.

In the aftermath of Rasul, Deputy Defense Secretary Paul Wolfowitz promulgated military procedures for vetting enemy combatant detainees to determine if errors were made in identifying them. Congress was not asked for legislation endorsing the procedures based on findings of military necessity, for example, the urgency of eliciting intelligence, the chilling consequences of erroneous releases and the difficulties of proof according to customary rules of evidence. Indeed, the Defense Department has confirmed that at least five detainees released before the Rasul ruling have returned to fighting American soldiers. The Wolfowitz procedures sans explicit congressional approval are now under constitutional attack.

The president claimed power to detain indefinitely illegal combatants, whether citizens or aliens, without judicial review to determine cases of misidentification or mischaracterization. Congress was neither asked to suspend the writ of habeas corpus during the counterterrorism war as permitted under Article I, section 9, clause 2 of the Constitution, nor requested to block judicial review of illegal combatant determinations. In Hamdi vs. Rumsfeld, the Supreme Court rebuffed President Bush’s war power arrogance. Writing for a plurality, Justice Sandra Day O’Connor explained: “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens. Whatever power the United States Constitution envisions for the executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

Congress is empowered by statute to override treaties or international conventions. Mr. Bush, however, unilaterally authorized Central Intelligence Agency “ghost detainees” hidden from the International Committee of the Red Cross or sister accountability under Geneva conventions or otherwise. Congress was not solicited to depute the president with power to suspend application of international law or customs in detaining and interrogating enemy combatants upon a certification in writing that the supreme national security interests of the United States were at stake.

The White House’s failure to enlist Congress as a junior partner in warring against terrorism is folly. The legislative branch and public opinion decisively support iron-fisted tactics to defeat international terrorists. A statutory war powers agenda presented by President Bush to the House and Senate would be enacted with alacrity. Moreover, congressional support would strengthen, not weaken, the president’s constitutional powers. As Justice Robert Jackson lectured in Youngstown Sheet & Tube Co. vs. Sawyer (1952): “When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. … If his act is held unconstitutional under these circumstances, it usually means that the federal government as an undivided whole lacks power. A seizure executed by the president pursuant to an Act of Congress would be supported by the strongest presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.”

The first and greatest Republican Party president, Abraham Lincoln, obtained congressional ratification of his suspension of the writ of habeas corpus during the Civil War. Shouldn’t President Bush learn from that example?

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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