- The Washington Times - Thursday, July 13, 2006

Part four of a four-part series of essays.

Bush administration critics have tried mightily to characterize the Supreme Court’s recent military commission decision in Hamdan v. Rumsfeld as a defeat for presidential power. But, in fact, the president’s inherent authority as commander in chief to establish military commissions was not at issue in Hamdan.

The Hamdan ruling was based on the court’s interpretation of the statutory requirements for military commissions found in the Uniform Code of Military Justice (UCMJ). As the court’s majority stated: “Whether … the President may constitutionally convene military commissions ‘without the sanction of Congress’ in cases of ‘controlling necessity’ is a question this Court has not answered definitely, and need not answer today.”

In fact, the administration critics’ increasingly loud misreading of the Hamdan case has much more to do with their own anti-Bush catechism than with legal analysis of the court’s actual ruling. Like President Clinton before him, President Bush is genuinely loathed by a significant segment of his political opposition (on both the left and right).

The anti-Clinton story involved a man who loved power, could not control his personal appetites, lied and betrayed his stated values (and those of his supporters) when it suited his purposes and who was involved directly or indirectly in more or less serious intimidation and criminality. The House of Representatives agreed; the Senate did not. History will judge.

The anti-Bush story can be summarized as follows: George W. Bush was not legitimately elected president in 2000, has mishandled the U.S. response to al Qaeda’s attacks and lied about Iraq, has grasped the opportunity presented by September 11 to make war on civil liberties — beginning with the Patriot Act — and is implementing an unprecedented and unsupportable vision of presidential power called the “unitary executive.” If accepted, this theory would permit the president to ignore any legal constraint — such as the Foreign Intelligence Surveillance Act’s (FISA) limitations on intercepting wire communications — he disliked. Finally, the Republican-controlled Congress has failed in its institutional obligation to oversee and check a president bent on tyranny.

This contrived vision of reality has doubtless proved an invaluable fundraising tool for the Democratic Party and other leftist causes, but it has no relation to the truth. History can also judge the 2000 presidential elections and the war in Iraq, but facts are facts. Mr. Bush has not articulated unprecedented constitutional claims and he has exercised far more restraint than many of his wartime predecessors, including Presidents Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt and Harry Truman. The impositions on civil liberties — mostly privacy interests — occasioned by the war on terror have been modest when judged by the standards of previous conflicts. And they have been justified by the clear wartime imperative to anticipate and prevent future al Qaeda attacks against the civilian population in the United States and elsewhere. The Patriot Act, of course, was not decreed by President Bush, but was enacted into law by Congress — with many Democratic votes — and was ultimately reauthorized with only minor changes.

The president’s decision to authorize the National Security Agency’s surveillance of al Qaeda without FISA warrants was fully supported by his constitutional war powers (in particular, the commander in chief’s authority to monitor enemy communications) by Congress in its enactment of the Authorization for the Use of Military Force (AUMF) against those responsible for the September 11 attacks and by case law.

Leaving aside the president’s constitutional authority, FISA itself recognized that surveillance could be authorized by other statutes, and the AUMF falls squarely within that category.

This was the Supreme Court’s conclusion with respect to a very similar question in its 2004 Hamdi v. Rumsfeld decision. In that case, the administration’s opponents had argued that the “non-detention act” forbade the detention of American citizens as enemy combatants. Like FISA, that statute contains language prohibiting the detention of U.S. citizens “except pursuant to an Act of Congress.” In Hamdi, a majority of the justices held that the AUMF provided just that authorization.

Nothing in the Hamdan decision changed this. In Hamdan, the court addressed statutory provisions that did not contain the critical escape clause — except as otherwise provided by law — and assumed a wartime context. Most importantly, however, the UCMJ itself contained the specific standard, impracticability, which needed to be met before military commission rules could depart from courts-martial rules. The government never attempted to explain in detail why that impracticability existed in Hamdan’s case, or with respect to others slated to be tried by military commission.

The president could, if he chooses, make a determination that this is impracticable and defend his justification in the courts. The Hamdan majority recognized that he would be entitled to some deference here. This is not a defeat for executive power. It was actually Congress which took the drubbing in the decision since the court, like a pedantic schoolmaster, decided that Congress’ prior statutory handiwork was not clear enough and sent it back to the drawing board.

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C., office of Baker & Hostetler LLP and served in the Justice Department under Presidents Reagan and George H.W. Bush. They dedicate this series of essays to the beloved memory of Perseus Rivkin.

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