- The Washington Times - Sunday, September 17, 2006

The president has removed high-level prisoners from a secret CIA “black site,” but has not closed those cells for future “alternative procedures” in hidden CIA prisons. And despite the continuing controversy over whether he broke the law in authorizing secret National Security Agency eavesdropping, he’s asking for even greater warrantless spying on Americans’ international communications. He still believes he has “inherent” constitutional authority to act on his own in certain areas. But what would our Founders say?

Let’s find out. During the 1787 Constitutional Convention, only six years after the British surrender at Yorktown, Charles Pinckney supported the concept of a forceful president but objected to recommendations that “would render the Executive a monarchy of the worst kind, to wit an elective one.” And Edmund Randolph, greatly concerned about the limits of executive power, warned against creating “the foetus of Monarchy.” Randolph added that the “genius of the people of America” required a different form of government than the British model” to which James Wilson agreed that the British prototype “was inapplicable to the situation in this country, the extent of which was so great, and the manners so republican that nothing but a great confederated republic would do for it.”

For this monitoring of the Founding Fathers, I am indebted to political-science professor David Gray Adler of Idaho State University and Michael Genovese, a professor of that discipline at Loyola Marymount University. Four years ago, the University Press of Kansas, whose books have given me a postgraduate course in our history and Constitution, published a book that Messrs. Adler and Genovese edited on President Bush’s predecessor, Bill Clinton, who also worked hard to expand presidential powers before Mr. Bush had to confront the much greater impetus of Sept. 11. Messrs. Adler and Genovese co-edited “The Presidency and the Law/The Clinton Legacy,” which deserved much more attention than it has received.

In this meticulously researched and footnoted volume, one section, “The Commander in Chief Clause,” is particularly relevant to George W. Bush’s longtime conviction, and that of his cabinet and lawyers, that as commander in chief he has “inherent Constitutional power” to act unilaterally when essential to ensure national security.

Mr. Adler cites a member of the Constitutional Convention, Alexander Hamilton, who certainly favored a strong chief executive, but wrote, however, in “Federalist Papers No. 69” ever since regarded as an authoritative guide to those deliberations in Philadelphia that: “(While) the president is to be commander-in-chief… his authority would be nominally the same as that of the King of Great Britain, but in substance much inferior to it… (the power) of the British King extends to the declaring of war and to the raising of and regulations of fleets and armies all of which, by the (American) constitution under consideration, would appertain to the legislature.”

Quoted in this section is constitutional scholar Louis Henkin, in his book, “Foreign Affairs and the Constitution”: “Generals and Admirals, even when they are ‘first,’ do not determine the political purposes for which troops are to be used; they command them in the execution of policy made by others.” (The Congress) As for Clinton, Adler points out: “The absolutist pretensions of Bill Clinton… virtually eviscerated the war clause. He asserted the executive power to commence war at his pleasure — missile strikes against Baghdad in 1993, air strikes in Bosnia in 1994 and his war against Yugoslavia in 1999 — and to determine its course and direction, its intensity and duration.

“(But) the framers produced a Constitution that granted these prerogatives to Congress. ‘Those who are to conduct war,” said James Madison, ‘cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued or concluded.’” In her embattled August decision, “American Civil Liberties Union v. National Security Agency” ruling that the president has violated the Foreign Intelligence Surveillance Act, the separation of powers and the Fourth Amendment now on its way to the Supreme Court federal district Judge Anna Diggs Taylor said, to widespread criticism: “There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent’ powers must derive from that Constitution.”

In view of the repeated fears of “kingly” powers during the Constitutional Convention debates, Judge Taylor’s reminder to the president does not appear presumptuous, let alone irrelevant. Since a cat can look at a king, as an old fairy tale said, I will be so forward as to suggest to members of Congress and the Supreme Court that they read the section “Clinton, the Constitution and the War Power” in “The Presidency and the Law/The Clinton Legacy” in order to forestall a Bush legacy of “inherent” powers to future presidents.

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