The Presidency and the Challenge of Democracy (The Evolving American Presidency)

The Presidency and the Challenge of Democracy

THE EVOLVING AMERICAN PRESIDENCY SERIES

SERIES FOREWORD: The American presidency touches virtually every aspect of American and world politics. And the presidency has become, for better or worse, the vital center of the American and global political systems. The Framers of the American government would be dismayed at such a result. As invented at the Philadelphia Constitutional Convention in 1787, the presidency was to have been part of government with shared and overlapping powers, embedded within a separation-of-powers system. If there was a vital center, it was the Congress; the presidency was to be a part, but by no means, the centerpiece of that system. Over time, the presidency has evolved and grown in power, expectations, responsibilities, and authority. Wars, crises, depressions, industrialization, all served to add to the power of the presidency. And as the United States grew into a world power, presidential power also grew. As the United States became the world’s leading superpower, the presidency rose in prominence and power, not only in the United States, but on the world stage. It is the clash between the presidency as invented and the presidency as it has developed that inspired this series. And it is the importance and power of the modern American presidency that makes understanding the office so vital. Like it or not, the American presidency stands at the vortex of power both within the United States and across the globe. This Palgrave series recognizes that the presidency is and has been an evolving institution, going from the original constitutional design as a Chief Clerk, to today where the president is the center of the American political constellation. This has caused several key dilemmas in our political system, not the least of which is that presidents face high expectations with limited constitutional resources. This causes presidents to find extraconstitutional means of governing. Thus, presidents must find ways to bridge the expectations/power gap while operating within the confines of a separation-of-powers system designed to limit presidential authority. How presidents resolve these challenges and paradoxes is the central issue in modern governance. It is also the central theme of this book series. Michael A. Genovese Palgrave’s The Evolving American Presidency Series Editor The Second Term of George W. Bush edited by Robert Maranto, Douglas M. Brattebo, and Tom Lansford

The Presidency and the Challenge of Democracy edited by Michael A. Genovese and Lori Cox Han

The Presidency and the Challenge of Democracy Edited by Michael A. Genovese and Lori Cox Han

THE PRESIDENCY AND THE CHALLENGE OF DEMOCRACY

© Michael A. Genovese and Lori Cox Han, 2006. All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles or reviews. First published in 2006 by PALGRAVE MACMILLAN™ 175 Fifth Avenue, New York, N.Y. 10010 and Houndmills, Basingstoke, Hampshire, England RG21 6XS Companies and representatives throughout the world. PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN-13: 978–1–4039–7422–8 (Hc) ISBN-10: 1–4039–7422–5 (Hc) ISBN-13: 978–1–4039–7423–5 (Pbk.) ISBN-10: 1–4039–7423–3 (pbk.) Library of Congress Cataloging-in-Publication Data The presidency and the challenge of democracy / edited by Michael A. Genovese and Lori Cox Han. p. cm. Includes bibliographical references and index. ISBN 1–4039–7422–5—ISBN 1–4039–7423–3 (pbk.) 1. Executive power—United States. 2. Democracy—United States. 3. United States—Foreign relations. 4. Constitutional history—United States. I. Genovese, Michael A. II. Han, Lori Cox. JK516.P6385 2006 352.230973—dc22 A catalogue record for this book is available from the British Library. Design by Newgen Imaging Systems (P) Ltd., Chennai, India. First edition: September 2006 10 9 8 7 6 5 4 3 2 1 Printed in the United States of America.

2005040167

Contents Preface

vii

Notes on Contributors

xi

One

Two

Three

Four

Five

Six

Seven

Eight

Nine

Index

Is the Presidency Dangerous to Democracy? Michael A. Genovese

1

From Presidential Wars to American Hegemony: The Constitution After 9/11 Louis Fisher

23

Guarding the Parchment Barrier: The Attorney General and Presidential Power in Wartime Nancy V. Baker

53

The Constitutional Checks and Balances that Neither Check Nor Balance Nancy Kassop

73

The Commander in Chief Power and Constitutional Invention in the Bush Administration Robert J. Spitzer

93

The President Over the Public: The Plebiscitary Presidency at Center Stage Lori Cox Han

119

Who Makes U.S. Foreign Policy? Presidential Leadership in Gulf Wars I and II Meena Bose

139

The President as King: The Usurpation of War and Foreign Affairs Powers in the Modern Age David Gray Adler

159

Conclusion: The American Presidency in a Post 9/11 World Thomas E. Cronin

191

201

This page intentionally left blank

Preface A Dangerous Presidency in a Dangerous World Only the most reptilian could read the powerful words of the Declaration of Independence and not be moved and inspired. The rush of democratic sentiment, the appeal to reason, the bold language and even bolder message, the call to arms, the proclamation of universal rights all leave the reader reeling with democratic fervor. From the preamble to the last ringing chorus, the men of the founding era were truly men for the ages. The preamble runs thus: When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume, among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

But that is only the beginning. Yes, we are breaking our bond with the past, and that is why We hold these truths to be self-evident; that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

The language is concise, clear, to the point, and dripping powerful prose and imagery.

viii

Preface

These inspiring words declare guiding principle as well as independence. And to drive their point home, the remainder of the Declaration of Independence is a long list of crimes and grievances against the British Crown. This bill of particulars leveled against King George III included: repeated injuries and usurpations . . . He has refused his assent to laws . . . He has obstructed the administration of justice . . . He has made judges dependent on his will alone . . . He has erected a multitude of new offices and sent hither swarms of officers to harass our people and eat out their substance . . . He has affected to render the military independent of, and superior to, the civil power . . . He has combined with others to subject us to jurisdiction foreign to our constitution and unacknowledged by our laws . . . For depriving us, in many cases, of the benefits of trial by jury . . . For taking away our charters, abolishing our most valuable laws, and altering, fundamentally, the forms of our government.

Lamentably, all of this sounds eerily familiar in our age. And while no one would make the case that we have replaced a king of England with a king of America, the ubiquitous presence of the American presidency and the precipitous growth of presidential power in the modern era leads one to draw frightening parallels. The rise of America has also meant the rise of presidential power. When the United States became a world economic and political power, a strong presidency emerged. With World War II, the Cold War, and now the war against terrorism, the modern presidency has been driven by and shaped by crises and war. With the United States as the world’s only superpower, foreign policy animates and empowers a swollen presidency. But this powerful and heroic model of the presidency runs contrary to constitutional design. The presidency was invented as a limited institution, grounded by the rule of law and embedded in the checks and balances of a separation of powers. Crises and wars have not changed the wording of the Constitution, but they have altered the scope of presidential power. This book is about presidential power in an age of U.S. hegemony and terror. It asks if the presidency has become dangerous to our constitutional republic. This concern is not new. James Madison issued a warning over two hundred years ago when he wrote, “Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.”1 As we go abroad in search of demons to destroy, we also sacrifice republicanism principles at home. As we demand security, we suspend the Constitution. Why give terrorists such a victory they could never earn on the battlefield? Why let thugs and bullies dictate us? Why dismantle the Constitution? The current surrendering of our constitutional safeguards is

Preface

ix

not altogether new. In past wars, we have trimmed the provisions of the constitution to suit needs and interests. But what is new is the current justification of said constitutional smashing. In effect, we today find ourselves at the third stage of a dangerous trend. In stage one, from the beginning of the republic to 1950, presidents sought power, used power, and at times abused foreign and war-making power. But they were always careful to appeal their actions not on the basis of a constitutional authority but by the doctrine of necessity. Presidents such as Abraham Lincoln during the Civil War, or Franklin D. Roosevelt during the depression and World War II did overstep constitutional bounds, but they never claimed that their actions were grounded in a constitutional grant of power. Rather than cloaking themselves in constitutional powers, they paid homage to the Constitution and the power of Congress. Lincoln, referring to the emergency measure taken early in the Civil War admitted in a special session message on July 4, 1861 to Congress that his actions “whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity; trusting then as now that Congress would readily ratify them.”2 Lincoln made no claim of inherent power and bowed to the superior power of the Constitution, the rule of law, and the right of Congress to make policy. Presidents may have occasionally acted beyond the law, but they were careful never to claim a right to do so. Stage two came in the early 1950s when, during the early days of the Cold War, President Harry S. Truman broke from his constitutional past to assert an inherent right as commander in chief to send U.S. troops into combat. This bold and constitutionally baseless claim should have been defanged at birth, but in the early days of the Cold War, Congress, the public, and the courts backed away, and a new “constitutional” principle was accepted, a principle many subsequent presidents, along with the public, Congress, courts, and the media began to accept as a legitimate constitutional provision. We find ourselves today on the precipice of stage three, with President Bush fighting a war against terrorism that takes Truman’s constitutionally baseless doctrine one giant step further. Not only does Bush claim an inherent constitutional right to send troops into combat without congressional approval, but he asserts an even mere farfetched and dangerous power: that his actions are nonreviewable.3 If the Congress, public, and courts allow such an assertion to become doctrine, what becomes of the system of checks and balances? Is the president to be truly above the law? This transforms our imperial presidency into a monarchial presidency. Such is the dilemma we attempt to confront in this book. Is the presidency dangerous to democracy, and what are the challenges we face as we attempt to make the presidency powerful enough to promote security while also maintaining democratic accountability? Can we make the presidency strong and safe for democracy? This book is drawn from a February 2005

x

Preface

conference sponsored by the Institute for Leadership Studies at Loyola Marymount University in Los Angeles, California. We wish to thank the University for its generous sponsorship of this conference, and to further thank Whitney Izzo for her work in organizing the conference and Theresa Tran for her expert research and accurate typing. We are also indebted to David Pervin at Palgrave Macmillan for his enthusiastic support for this project.

Notes 1. See Arthur M. Schlesinger, Jr., War and the American Presidency (New York: Norton, 2004), 47. 2. Abraham Lincoln, “Special Session Message, July 4, 1861,” in A Compilation of the Messages and Papers of the Presidents, vol. 7, ed., James D. Richardson (New York: Bureau of National Literature, 1897), 3227–9, 3231–2. 3. Jay S. Bybee, assistant attorney general, U.S. Department of Justice, “Memorandum for Alberto R. Gonzales,” August 1, 2002. Accessed at http://www.washingtonpost. com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf., October 21, 2004, and “Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations,” April 4, 2003. Accessed at http://www.defenselink.mil/ news/Jun2004/d20040622doc8.pdf.. October 21, 2004, Report, “Working Group Report,” was to be declassified in 2013, but was declassified on June 21, 2004, after an earlier draft of the report, dated March 6, 2003, had been leaked to the Wall Street Journal. Jess Bravin, “Pentagon Report Sought to Justify Use of Torture,” Wall Street Journal, June 7, 2004, A1.

Notes on Contributors David Gray Adler is Professor of Political Science at Idaho State University, where he teaches a variety of classes on the constitution and the presidency. He is the author of The Constitution and the Termination of Treaties (1986), Presidential Power and the Steel Seizure Case (forthcoming), and coeditor of The Constitution and the Conduct of American Foreign Policy (with Larry N. George, 1996) and The Presidency and the Law: The Clinton Legacy (with Michael A. Genovese, 2002). His research has also appeared in a variety of journals, including Political Science Quarterly, Presidential Studies Quarterly, and Constitutional Commentary. Nancy V. Baker is Associate Professor in the Government Department at New Mexico State University. Her research focuses on the Office of the U.S. Attorney General and the nexus of law and politics in the Executive Branch. She is the author of Conflicting Loyalties: Law and Politics in the Attorney General’s Office (1992), as well as multiple articles and essays. Her most recent book, General Ashcroft: Attorney at War (2006) examines the tenure of John Ashcroft as Attorney General and the impact of his domestic antiterrorism policies on the U.S. constitutional system. Meena Bose is the Peter S. Kalikow Chair in Presidential Studies at Hofstra University. She is the author of Shaping and Signaling Presidential Policy: The National Security Decision Making of Eisenhower and Kennedy (1998), coeditor of From Cold War to New World Order: The Foreign Policy of George H. W. Bush (with Rosanna Perotti, 2002), and coeditor of The Uses and Abuses of Presidential Ratings (with Mark Landis, 2003). Her current research focuses on the changing role of the United Nations in American foreign policy. Thomas E. Cronin is McHugh Professor of American Institutions and Leadership at Colorado College, and the former president of Whitman College. He is the author or coauthor of several books, including The Paradoxes of the American Presidency (with Michael A. Genovese, 2nd ed. 2004) Government by the People (2004), State and Local Politics (2004), Colorado Politics and Government: Governing the Centennial State (1993), Direct Democracy: The Politics of Initiative, Referendum, and Recall (1989) U.S. v. Crime in the Streets (1981), and The State of the Presidency (1980). Louis Fisher is a Specialist with the Law Library of the Library of Congress, after spending 35 years with the Congressional Research Service. He served

xii

Notes on Contributors

as research director of the House Iran-Contra Committee in 1987 and wrote major sections of the report on institutional and constitutional issues. His books include Presidential War Power (2nd ed. 2004), Nazi Saboteurs on Trial: A Military Tribunal & American Law (2003), Military Tribunals and Presidential Power (2005), Congressional Abdication on War and Spending (2000), American Constitutional Law (6th ed. 2005), and Encyclopedia of the American Presidency (edited with Leonard W. Levy, 1994). Michael A. Genovese is Professor of Political Science and Loyola Chair of Leadership Studies, and is director of the Institute for Leadership Studies at Loyola Marymount University. He has written sixteen books, including The Paradoxes of the American Presidency (with Thomas E. Cronin, 2nd ed. 2004), The Presidency and Domestic Policy (with William W. Lammers, 2000), The Power of the American Presidency 1789–2000 (2001), The Presidential Dilemma (2nd ed. 2003), and is the editor of The Encyclopedia of the American Presidency (2004). He has won more than a dozen university and national awards for teaching. Lori Cox Han is Professor and Chair of Political Science at Chapman University in Orange, California. Her research focuses on the American presidency, mass media and politics, and women and politics. She is the author of Governing From Center Stage: White House Communication Strategies during the Television Age of Politics (2001), coeditor of In the Public Domain: Presidents and the Challenge of Public Leadership (with Diane J. Heith, 2005), and Women and American Politics: The Challenge of Political Leadership (2006). Her research has also appeared in Presidential Studies Quarterly, Congress and the Presidency, and White House Studies. Nancy Kassop is Professor and Chair of Political Science and International Relations at the State University of New York at New Paltz. Her research addresses issues of the presidency and law. Recent articles include “The War Power and Its Limits” in Presidential Studies Quarterly (September 2003); “The View from the President” in Mark C. Miller and Jeb Barnes, eds., Putting the Pieces Together: American Lawmaking from an Inter-Branch Perspective (2004); “Not Going Public: George W. Bush and the Presidential Records Act” in Lori Cox Han and Diane J. Heith, In the Public Domain: Presidents and the Challenges of Public Leadership (2005); and “When Law and Politics Collide: Presidents and the Use of the Twenty-Fifth Amendment” in Presidential Studies Quarterly (March 2005). Robert J. Spitzer is distinguished Service Professor of Political Science at the State University of New York College at Cortland. His books include The Presidency and Public Policy (1983), The Right to Life Movement and Third Party Politics (1987), The Presidential Veto (1988), The Bicentennial of the U.S. Constitution (1990), President and Congress (1993), Media and Public Policy (1993), Politics and Constitutionalism (2000), The Right to Bear Arms (2001), The Politics of Gun Control (3rd ed. 2004), Essentials of American Politics (with Benjamin Ginsberg, Theodore Lowi, and Margaret

Notes on Contributors

xiii

Weir, 2nd ed. 2005), and The Presidency and the Constitution (with Michael A. Genovese, 2005). In 2003, he received the State University of New York’s Chancellor’s Award for Excellence in Scholarship, and he is the author of more than 200 articles, papers, and essays appearing in numerous journals, books, newspapers, and other publications.

This page intentionally left blank

Chapter One Is the Presidency Dangerous to Democracy? Michael A. Genovese

If men were angels, no government would be necessary. If angels were to govern man, neither external nor internal controls in government would be necessary. In framing a government which is to be administered by men over men the great difficulty lies in this, you must first enable the government to control the governed and in the next place oblige it to control itself. A dependence on the people is no doubt the primary control on the government. But experience has taught mankind the necessity for auxiliary precautions. —James Madison, The Federalist, No. 51.

Does the presidency pose a threat to constitutional democracy in America? I ask this question as someone who has studied the presidency for over a quarter century, as someone convinced that the government functions best with strong presidential leadership, and as a citizen deeply committed to the Constitution and the rule of law. While the presidency of George W. Bush, an imperial, arrogant, and unilateral presidency, animates this question, its roots go back to the post– World War II era. Presidents in the past have greatly aggrandized power sometimes in clearly unconstitutional ways, but the powerful chief executives of yesteryear took great pains to ground their power grabs in the patina of constitutionalism, always acknowledging that the Constitution was king. Lincoln during the civil war, Wilson in World War I, and FDR in World War II used extraconstitutional authority to see the nation through crises, and they acknowledged that while their actions may have exceeded normal practice, they were nonetheless bound to respect constitutional limits. It was not until after World War II with the coming of the Cold War that presidents began to claim inherent, independent power, either grounded (mistakenly) in the Constitution or in authority stemming from their office itself. During the Korean conflict (war) in the 1950s, President Truman claimed independent authority (as commander in chief) to commit U.S. troops to combat. This, of course, violated both the spirit and letter of the Constitution, but in the atmosphere of Cold War hysteria, few had the courage to challenge the president. And yet, it is in just such times

2

Michael A. Genovese

that the Constitution needs all the friends it can get, all the defenders it can muster. From that point on, presidents made grander and grander claims of unilateral power, independent power, all of which led to the emergence of what in the 1970s historian Arthur M. Schlesinger, Jr. described as an Imperial Presidency. In effect, there has been a three-stage process in the aggrandizement of presidential war and foreign policy power: In stage 1, presidents sometimes acted unilaterally but always took great pains to pay deference to the constitutional limitations and role of Congress (even as they bypassed both); in stage 2, beginning with the Cold War and the Truman presidency, presidents began to claim, and the Congress and public amazingly turned a blind eye, that they had constitutional power as commander in chief, to send troops into war; in stage 3, the current Bush administration claims that not only does the president have constitutional authority to commit the nation to war, but that such a power is nonreviewable by the other branches, a claim that, if true, places the presidency on the same plane as the English King we overthrew over two hundred years ago. Today, amid a “permanent war” against terrorism, the Constitution faces great strains as the president, much of the Congress, and most of the public support the president, even as he skirts constitutional corners or far worse, openly defies the Constitution. How did we get to such a state? To answer that question, we need to go back to the invention of the presidency to see what the framers of our Constitution had in mind when they broke from their monarchical past to form a constitutional republic.

The Roots of the Presidency The presidency was invented more than 200 years ago as a relatively small, controlled office with limited powers under the rule of law. Today, the office is larger, more powerful, but still operates—or should operate—under a constitution. In some ways, the presidency of today closely resembles the institution of 1789 or 1850. The Constitution remains largely unchanged, and very little is done today by presidents that was not done 200, 150, or 100 years ago by one president or another. And presidents still face an array of constraints, the most important of which is the Congress. Thus, the office of today has clearly traceable roots to the office of Washington and Jefferson and Jackson. Yet in other ways, it seems a vastly different office. The presidency of today has more power, greater responsibility, higher demands and expectations; and the United States today is the world’s military and economic superpower. Recent presidents are more actively and openly involved in the legislative process than their early predecessors, direct political appeals to the public have become more common and more ubiquitous, the president’s staff has grown tremendously in recent years, and management has become a more effective tool of policy. The president of today “heads” an enormous

Is the Presidency Dangerous to Democracy?

3

bureaucracy (including a newly emergent antiterrorism state) and faces the television/media age that is more intrusive, pervasive, and personal than before. The revolution in communications and technology has created a smaller, closer, and more interrelated world (as well as a more dangerous world, with the proliferation of nuclear and other weapons of mass destruction), and the expansion of democracy—both at home and abroad—has created more voices and more demands on government. Also, today’s presidents must actively campaign for the office by going to the people for approval. It has only been in the past 150 years or so that active, public campaigning was deemed appropriate. These changes have taken place without a literal transformation of the constitution. More than any of the American institutions of government, the presidency can only be comprehended in terms of the office’s historical development. This development had peaks and valleys. The ambiguous wording of the Constitution, the gaping silences at points, has allowed the office to shrink and enlarge as people pushed and pulled for power. Brick by brick an institution was built up over time. Sometimes a brick or two was removed, but overall one can see a trend of more and more power to the office. Not all presidents had the determination, skill, interest, or circumstances to use the full measure of the resources available, but each brick added to the presidential arsenal, made it easier for presidents who followed to cite precedent and thus claim legitimacy for the expansion of power. The presidency may have been invented at the Constitutional Convention of 1787, but the roots of the office run deep in our history. To understand the adaptive and flexible nature of this office and the growth in presidential power over time, it is necessary to demonstrate how the institution came into being and the type of leadership the framers expected of this unique office.

The Journey from Divine Right of Kings to Servant of the People The Europe from which the framers of the U.S. Constitution fled was a world of kings and hereditary monarchies. In England, a nascent Parliament was in the process of a long march designed to wrestle power away from the king and give it first to the representatives of the landed barons, and later to the representatives of the people. When the Americas were first colonized, the Age of the Divine Right of Kings was giving way to more limited and representative forms of power. During the Divine Right of Kings, a monarch could Rule or Command. After all, he claimed an authority based on the will of God. To challenge the king was to challenge God. For a king, this is very firm ground on which to stand. But it left the people with little to cling to except the “good will” of the king. But as the church and the barons challenged the king’s power, a long, slow, often violent transformation took place. The Divine Right of Kings (God) was slowly replaced by the Divine

4

Michael A. Genovese

Right of the People (Democracy) through their representatives.1 Both the American and the French Revolutions directly challenged the authority of the king, and sought to impose a more representative or democratic system. In this new configuration, authority and legitimacy that once came from God now came from something called “the People.” This new secular base of authority made it more difficult to gain compliance. Consent replaced Command; Leadership replaced Rule; Influence and Persuasion replaced Orders. Government officials had to lead, not merely command. Eventually, rule of the people through elected representatives made the government the servant of the people through their laws. “In America,” Tom Paine pointed out, “the law is king.”2 The American Revolution took place in the middle of this transformation. As liberal democracy emerged “the leader” (aka, king) was seen as the problem to be solved, not as the solution to the people’s problem. To the colonists, the king became the focal point, the magnet of all complaints and criticisms. At the time of the colonists’ break with Great Britain, antimonarchical sentiment was strong. Jefferson’s Declaration of Independence was, in addition to being an eloquent expression of democratic and revolutionary faith, a laundry list of charges leveled against the tyrannical king. And propagandist supreme, Tom Paine, stigmatized England’s King George III as “The Royal Brute of Britain.” Anti-executive feelings were so strong that when the postrevolutionary leadership assembled to form a government, their Articles of Confederation contained no executive! But so weak and ineffective were the Articles that Noah Webster said they were “but a name, and our confederation a cobweb.”3 Over time, however, the absence of an executive proved unworkable, and slowly and quite grudgingly the inevitability of an executive became more commonly accepted. At the constitutional convention, James Wilson was the first to raise the possibility of an executive officer for the new government, and his comment was met, according to James Madison’s notes, with “an embarrassed pause”—so anti-executive were the delegates that even the thought of a new kingly officer led to harsh looks and stunned silence. But Edmund Randolph of Virginia broke the silence reminding the delegates that there would be “no semblance of a monarch” there. Alexander Hamilton addressed the convention on June 18, 1787 and delivered a speech praising the British system as “the best in the world.” “The British monarchy is,” he told the convention, “the only good model of executive power available.” But the framers knew that to create an American version of the British monarchy invited another revolution, and Hamilton’s hopes had to wait for a more receptive audience. The new government would have no strong, independent executive. The new nation was reluctant, but willing, to accept the necessity of an executive, but the fear of tyranny continued to lead them in the direction of a limited and constrained office. The ideas on which the framers drew in inventing a presidency are diverse and complex. They took a negative example away from their experiences with the king of England. Their fear of the executive imbedded in the

Is the Presidency Dangerous to Democracy?

5

framers a determination not to let the new American executive squint toward monarchy. Several European political theorists opened the framers’ imaginations to new possibilities for governing. John Locke’s Second Treatise on Government (1690) and Montesquieu’s The Spirit of the Laws (1748) were especially influential. From their understanding of history the framers drew several lessons. In studying the collapse of Greek (Athenian) democracy, the founders deepened their already profound suspicions of democracy. Thus, they were determined to prevent what some framers referred to as mobocracy. A tyranny of the people was just as frightening as a tyranny of the monarchy. From their examination of the Roman Republic and its collapse from the weight of empire, the founders understood how delicate the balance was between the Senate and the will of the emperor. An emperor armed as tribune of the people, bent on imperial pursuits, led to tyranny just as surely as monarchy and mobocracy. While less understood, the lessons the framers drew from the native Americans clearly had an impact on the writing of the Constitution. While the framers looked across the Atlantic and saw hereditary monarchies, they looked down the road and could see a sophisticated, democratic, egalitarian government in action: the Iroquois Confederation. This union of six tribes/nations, organized along lines similar to a separation-of-powers system, was the model for Ben Franklin’s 1754 Albany Plan of Union, and was much studied by several of the framers. On July 27, 1787, the drafting committee of the constitutional convention met at the Indian Queen Tavern to agree on a draft of the Constitution to submit to the entire convention. The committee’s chair, John Rutledge of South Carolina, opened the meeting by reading aloud an English translation of the Iroquois’s tale of the founding of the Iroquois Confederacy. Rutledge’s purpose was to underscore the importance for the new nation of a concept embedded in the tradition of the Iroquois Confederacy: “We” the people, from whence all power derives.4 While this concept also has European roots, nowhere in the Old World was it being practiced. The neighbors of the Constitution’s framers, however, had for decades been living under a constitution that brought this concept to life, and one that had an impact on the men who met in Philadelphia in that hot summer of 1787. The experience with colonial governors further added to the framers’ storehouse of knowledge. Those states with weak executives, states dominated by the legislature with a defanged governor, seemed less well run than states like New York, which had a fairly strong, independent governor. Such examples softened the fears of executive tyranny among the founders, and opened their eyes to the possibility of a controlled but effective executive office. Thus, over time, the anti-executive sentiments began to wane, and there developed a growing recognition that while executive tyranny was still to be feared, an enfeebled executive was also a danger to good government. Under the Articles, the national government was weak and ineffective. In each state, minor revolts of debtors threatened property and order. The most

6

Michael A. Genovese

famous of these was Shay’s Rebellion (1787). These minirevolutions instilled a fear into the propertied classes. Some longed for the imposed order of a monarchy. “Shall we have a king?” John Jay asked of Washington during the Shay’s Rebellion. This was not the first time Washington had been approached with such a suggestion. A few years earlier, in 1782, army units stationed in Newburgh, New York, threatened to meet and make Washington monarch. But Washington found out about the Newburgh Conspiracy and quickly put an end to it. The impact of these pushes toward monarchy further persuaded the framers of a need for an executive in America. As the framers met in Philadelphia, most of those present recognized (some quite reluctantly) the need for an independent executive with some power. But what? No useful model existed anywhere in the known world. They would have to invent one.

The Invention of a Presidency The American Revolution against Great Britain was in large part a revolt against executive authority. Historian Bernard Bailyn said the rebellion against Britain made resistance to authority a divine doctrine.5 The colonists were for the most part defiant, independent, egalitarian, and individualistic. The symbols and rallying cries were antiauthority in nature and once it became necessary to establish a new government, it was difficult to reestablish the respect for authority so necessary for an effective government. Reconstructing authority, especially executive authority, out of the ashes of revolution, was a slow, painful process. By 1787, when the framers met in Philadelphia to revise the Articles of Confederation, there was general agreement that a limited executive was necessary to promote good government. But what kind of executive? One person or several? How should he be selected? For how long a term? With what powers?6 No decision at the convention was more difficult to reach than the scope and nature of the executive. They went through proposals, counterproposals, decisions, reconsiderations, postponements, reversals, until finally a presidency was invented.7 The confusion reflected what political scientist Harvey C. Mansfield, Jr. referred to as the framers’ “ambivalence of executive power.”8 There were widespread and divergent views on the creation of an executive office. Initially, most delegates were considered “congressionalists,” hoping to create a government with a strong congress and a plural executive with very limited power. Delegate George Mason proposed a three-person executive, one chosen from each region of the nation. Delegate Roger Sherman described this executive, according to the notes from the constitutional convention, as “no more than an institution for carrying the will of the legislature into effect.”9 But there were also advocates for a strong, unitary executive. Alexander Hamilton initially wanted to institute a version of the British system of government on American soil, along with a monarch. However, there was little support for such a proposal, and Hamilton quickly backed away.

Is the Presidency Dangerous to Democracy?

7

James Madison, often referred to as the father of the U.S. Constitution, had surprisingly little impact on the invention of the presidency, even going so far as to write in a letter dated April 16, 1787 to George Washington shortly before the convention, “I have scarcely ventured as yet to form my own opinion either of the manner in which [the executive] ought to be constituted or of the authorities with which it ought to be clothed.”10 Probably the most influential framer on the invention of the presidency was James Wilson of Pennsylvania. At first, Wilson sought the direct popular election of the president, but eventually lost that battle and instead helped develop what became the Electoral College. He also greatly influenced the choice of a single over a plural executive. In the end, the framers wanted to strike a balance in executive power. Making the presidency too strong would jeopardize liberty; making the office too weak would jeopardize good government. But just how to achieve balance remained a thorny issue. Unlike the Congress and the Judiciary, for which there was ample precedent to guide the framers, the presidency was truly new, invented in Philadelphia, different from any executive office that preceded it. The president would not be a king, he would not be sovereign. He would swear to protect and defend a higher authority: the constitution. The framers faced several key questions. First, how many? Should it be a single (unitary) or plural executive? Initial sympathy for a plural executive eventually gave way to a single executive, primarily because that was the best to assign responsibility (and blame) for the execution of policy. The second question was how to choose the executive. Some proposed popular election, which was rejected because the framers feared the president might become tribune of the people. Others promoted selection by the Congress, but this was rejected on the grounds that it might make the president the servant of Congress, and it would undermine the separation of powers. Finally, the framers invented an Electoral College as the best of several unappealing alternatives. Next, how long? Should the president serve for life? A fixed term? Two years, four years, six years? If for a fixed term, should he be eligible for reelection? After much hemming and hawing they decided on a four-year term with reeligibility as an option. But the president could be removed— impeached—for certain, yet not very clearly delineated, offenses. The toughest question related to how much power the president should be given. In a way, the framers deftly avoided this issue. Since they could not reach a clear consensus on the president’s power, they decided to create a bare skeleton of authority. They left many areas vague and ambiguous; they left gaping silences throughout Article II. How could the framers—so afraid of the mob and the monarchy—leave so important an issue so poorly answered? The answer is: George Washington. Any examination of the invention of the presidency that did not take George Washington into account would be remiss. Each day, as debate after debate took place, the men of Philadelphia could look at the man presiding over the convention, secure in the knowledge that whatever else became of

8

Michael A. Genovese

the presidency, George Washington would be its first officeholder. So confident were the framers (and the public as well) of Washington’s skills, integrity, and republican sentiments, they felt comfortable leaving the presidency unfinished and incomplete. They would leave it to Washington to fill in the gaps and set the proper precedents. After the convention, delegate Pierce Butler acknowledged Washington’s influence in this excerpt from a letter to Weedon Butler, dated May 5, 1788: I am free to acknowledge that his powers (the President’s) are full great, and greater than I was disposed to make them. Nor, entre nous, do I believe they would have been so great had not many of the members cast their eyes towards George Washington as President; and shaped their ideas of the powers to be given to a President by their opinions of his virtue.11

Of course, Washington would not always be the president. Thus, while the framers trusted Washington, could they trust all of his successors? Leaving the presidency unfinished opened the door for future problems in the executive. Ben Franklin pointed to this when he noted, at the constitutional convention on June 4, 1787 “The first man, put at the helm, will be a good one. Nobody knows what sort may come afterwards.”12 Washington, then, is the chief reason for the office of the presidency to be so elastic. The office was left half finished with the expectation that Washington would fill in the gaps. Of course, in many ways he did. But this also left openings that future presidents were able to exploit on the road to an expanding conception of executive power. The presidency that emerged from the Philadelphia Convention was an office with “very little plainly given, very little clearly withheld . . . the Convention . . . did not define: it deferred.”13 This meant that the presidency would be shaped, defined, and created by those people who occupied the office and the demands of different eras. The framers thus invented a very “personal presidency,” and much of the history of presidential power stems from the way presidents have understood and attempted to use the office to attain their goals. As Alan Wolfe has written, “The American presidency has been a product of practice, not theory. Concrete struggles between economic and political forces have been responsible for shaping it, not maxims from Montesquieu.”14 The unsettled nature of the presidency was a marked characteristic of this peculiar office and, to some, the genius of the framers. The constitution that emerged from the Philadelphia Convention was less an act of clear design and intent and more a “mosaic of everyone’s second choices.”15 The presidency, left unfinished and only partially formed, had yet to be truly invented.

The Presidency as a Constitutional Office The framers invented a presidency that had some strength, but little independent power. They put the president in a position to lead (influence,

Is the Presidency Dangerous to Democracy?

9

persuade), but rarely command (order). What exactly did the framers create? What structure or skeleton of power and government did the founders of the U.S. system design? The chief mechanisms they established to control as well as to empower the executive are as follows: (1) Limited Government, a reaction against the arbitrary, expansive powers of the king or state, and a protection of personal liberty; (2) Rule of Law, so that only on the basis of legal or constitutional grounds could the government act; (3) Separation of Powers, so that each of the three branches of the government would have a defined sphere of power; and (4) Checks and Balances, so that each branch could limit or control the powers of the other branches of government. In this structure, what powers and resources has the president? Limited powers. Constitutionally, the United States faces a paradox: the Constitution both empowers and restrains government. In fact, the Constitution does not clearly spell out the power of the presidency. Article I is devoted to the Congress, the first and constitutionally the most powerful branch of government. Article II, the executive article, deals with the presidency. The president’s powers cupboard is—compared to that of the Congress—nearly bare. Section 1 gives the “executive power” to the president but does not reveal whether this is a grant of tangible power or merely a title. Section 2 makes the president commander in chief of the armed forces but reserves the power to declare war for the Congress. Section 2 also gives the president absolute power to grant reprieves and pardons, power to make treaties (with the advice and consent of the Senate), and the power to nominate ambassadors, judges, and other public ministers (with the advice and consent of the Senate). Section 3 calls for the president to inform the Congress on the state of the Union and to recommend measures to Congress, grants the power to receive ambassadors, and imposes upon the president the duty to see that the laws are faithfully executed. These powers are significant, but in and of themselves they do not suggest a very strong or independent institution, and certainly not a national leadership position.

Presidential Power in the Constitution Presidential power, when viewed from a constitutional perspective, is both specific and obscure: specific in that some elements of presidential power are clearly spelled out (e.g., the veto power, a pardon power); obscure in that the limits and boundaries of presidential power are either ill-defined or open to vast differences in interpretation (e.g., the president’s power in foreign affairs and his power over the military). In an effort to understand presidential power, the Constitution is a starting point, but it provides few definitive answers. The Constitution, as it relates to the powers of the president, raises more questions than it answers. As historical circumstances have changed, so too has the meaning or interpretation of the Constitution. The scope and meaning of the executive

10

Michael A. Genovese

clause (Article II) of the Constitution has changed to meet the needs of the times and the wishes (demands) of strong presidents. The skeleton-like provisions of Article II have left the words open to definition and redefinition by courts and presidents. This skeleton-like wording leaves it up to an aggressive chief executive and a willing Supreme Court to shape the actual parameters of such powers. In effect, history has rewritten the Constitution. For two centuries, we have been debating just what the words of the Constitution mean, and this debate still rages on. The words are “flexible” enough to mean different things in different situations. Thus one can see the elasticity of options open for both the Supreme Court and the president. On the whole, a more “expansive” view of presidential power has taken precedence over a more “restrictive” view. The history of the meaning of presidential power through the Constitution has been one of the expansion of power and the enlargement of the meaning of the words of the Constitution. The presidential office gets power from a variety of sources, both constitutional and extraconstitutional. While the Constitution must be the starting point for any analysis of presidential power, it is by no means the final word on the subject. The loose construction of the words of the Constitution, for example, “the executive power shall be vested in a president . . . take care that the laws be faithfully executed” and the like have been used to view the powers of the president in expansive or elastic terms. The Constitution gives us an outline of the powers of the president, not a picture. For, the president is much more than the Constitution leads us to believe. As Haight and Johnston write, “the Presidency is above all an integrated institution, all of whose parts interlock with one another. Any description that discusses these parts individually cannot help being partially misleading.”16 Thus, one cannot simply look at the Constitution and define and describe “presidential power.” The presidency is more than the sum of its constitutional parts. Presidential power exists in two forms: formal powers and informal powers. To understand presidential power, one must understand how the formal and informal powers work and interact and how the combination of the two can lead to dominance by a president who, given the proper conditions and abilities, is able to exploit his power sources.

Formal Powers The formal powers of the president revolve around the constitutional powers to “command.” They involve those areas of the Constitution that clearly place powers and responsibilities on the shoulders of the president. Perhaps the best example of the formal power of the president is the pardoning power. The Constitution grants the president sole power over pardons, and as controversial as many pardons have been over time (e.g., President Ford’s pardon of former president Nixon, and President George H. W. Bush’s

Is the Presidency Dangerous to Democracy?

11

pardon of former secretary of defense Casper Weinberger, where some argued that this was Bush pardoning himself as the testimony of Weinberger might well have implicated Bush in the crimes of the Iran-Contra scandal), the president has been able to maintain nearly absolute control over pardons. The formal powers of the president are derived essentially from the Constitution. These powers extend, however, beyond the strictly legalistic or specifically granted powers that find their source in the literal reading of the words of the constitution. Additionally, presidents have: Enumerated powers (those that the Constitution expressly grants); Implied powers (those that may be inferred from power expressly granted); Resulting powers (those that result when several enumerated powers are added together); and Inherent powers (those powers in the field of external affairs that the Supreme Court has declared do not depend upon constitutional grants but grow out of the existence of the national government).

Informal Powers These informal powers of the president find their source in the “political” as opposed to the “constitutional.” They are the powers that are either not spelled out in the Constitution, those acquired through politics, or those that are “missing” from the Constitution. Richard Neustadt, in Presidential Power, discussed the informal power of the president to “persuade.” Neustadt and others feel that the power to persuade is the most important of all the presidential powers. These informal powers of the president rely upon his/her ability to engage in the personal part of politics. All presidents have and can use their formal powers, but the informal powers require skill at persuasion, political manipulation, coalition-building, self-dramatization, and mobilization. The president’s formal powers are limited and (often) shared. The president’s informal powers are a function of skill, situation, and the political circumstances. While the formal power of the president remains fairly constant over time, the president’s informal powers are quite variable, dependent on the skill of each individual president. This is not to suggest that the president’s formal powers are static—over time, presidential power has increased significantly—but the pace of change has been such that it was well over a hundred years before the presidency assumed primacy in the U.S. political system. The constitutional structure of the government disperses or fragments power: with no recognized, authoritative vital center, power is fluid and floating, and no one branch can very easily or freely act without the consent (formal or tacit) of another branch. Power was designed to counteract power; ambition to check ambition. This structure was developed by men

12

Michael A. Genovese

whose memories of tyranny and the arbitrary exercise of power by the king of England were fresh in their minds. It was a structure designed to force a consensus before the government could act. The structure of government created by the framers did not create one leadership institution but three separate, semiautonomous institutions that shared power. As many scholars have noted, this system of separated and shared powers is biased against change. The forces of the status quo were given multiple veto opportunities; the forces of change were forced to go into battle nearly unarmed. Because there are so many potential veto points, the American system generally alternates between stasis and crisis, paralysis and spasm. On occasions, the branches are able to cooperate and work together to promote change, but it is especially difficult for the president and Congress—deliberately disconnected by the framers—to forge a union. The resulting paralysis has many parents, but the separation of powers is clearly the most determinative.

What Was the Intent of the Framers? The framers of the U.S. Constitution created—by design—what might be called an “antileadership” system of government. While this may sound strange, upon reflection, it is clear that their primary goal—rather than to provide for an especially efficient system—was to create a government that would not jeopardize liberty. Freedom was their goal, and governmental power their nemesis. Thus the men who toiled on that hot summer of 1787 in Philadelphia created an executive institution, a presidency, that had limited powers. For James Madison, the chief architect of the Constitution, a government with too much power was a dangerous government. Seeing himself as a keen student of history, he believed that human nature drove men—at this time, only men were allowed to enter the public arena—to pursue self-interest, and therefore a system of government designed to have “ambition checked by ambition” set within rather strict limits was the only hope to establish a stable government that did not endanger liberty. Realizing that “enlightened statesmen” would not always guide the nation, Madison embraced a checkand-balance system of separate but overlapping and shared powers. Madison’s concern to have a government with controlled and limited powers is seen throughout his writings, but nowhere is it more vivid than when he wrote in Federalist 51, “You must first enable the government to control the governed; and in the next place, oblige it to control itself.”17 To counter Madison, Alexander Hamilton emerged as the great defender of executive power. An advocate of strong central government, Hamilton promoted, especially in the Federalist Papers, a version of executive power quite different from Madison’s dispersed and separate powers. While Madison believed that the new government’s powers should be “few and defined,”18 Hamilton wanted to infuse the executive with “energy.” Hamilton advocated vigorous government and a strong presidency. As

Is the Presidency Dangerous to Democracy?

13

Hamilton wrote in Federalist 70, good government requires “energy,” and he scornfully rejected the weak executive: A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.19

Hamilton sought a strong president within a more centralized government. But such a system would undermine Madison’s determination to check government power. The presidency, a unitary office headed by one man, would have no internal check. Thus, to Madison, there was the need for strong external checks—that is, a strong Congress. While Madison may have won the day at the constitutional convention, creating a presidency with fairly limited powers, history has been on the side of Hamilton, as the presidency has grown to resemble the Hamiltonion model more than was originally intended by the framers. Always looming in the background—quite literally, as he was in France at the time of the Philadelphia Constitutional Convention—was the enormous presence of Thomas Jefferson. An advocate of small government and democracy, Jefferson was very suspicious of power (his behavior as president aside). But Jefferson’s vision of a decentralized government, an agrarian economy, and a robust democracy was given little attention at the convention. It was a Madisonian model that emerged. Madison, like most of the founders, feared government in the hands of the people, but he likewise feared too much power in the hands of one man. Therefore, the Madisonian model called both for protections against mass democracy and limits on governmental power. This is not to say that the founders wanted a weak and ineffective government; had that been their goal, they could have kept the Articles of Confederation. But they did want a government that could not easily act. The theory of government that the Madisonian design necessitates is one of consensus, coalition, and cooperation, on the one hand, and checks, vetoes, and balances, on the other. The result was that when left strictly to its own devices, the presidency became a rather weak institution. A dilemma was thus created, especially in the modern period: How could a president bring Hamiltonion energy, to this Madisonian system, for Jeffersonian ends? The framers did not make it easy for the government to act or for presidents to lead—that was decidedly not their intent—and they left the powers and controls of the office somewhat vague, expecting George Washington to fill in the gaps. This created, in Edward S. Corwin’s words, “an invitation to struggle” for control of government.20 Looking at the framers’ design for government, a modern efficiency expert would likely conclude that the system could not work very well: too many limits, too many checks, not enough power, not enough leadership. But that is the way the framers wanted it. The president has few independent powers and many shared powers. Most are shared with a Congress that has greater enumerated constitutional

14

Michael A. Genovese

powers but less of an institutional capacity to act. Sharing powers with a Congress that only occasionally responds to presidential initiatives makes leadership a hazardous minefield. The framers purposely created uncertainty about who holds power in the United States. A system of baroque cross-powers and checked powers created a constitutional mechanism that prohibits one branch from exercising too much power on its own. Opportunities to check power abound; opportunities to exercise power are limited. Bert Rockman offers this reminder: The architect designed many doors, each seemingly with a different lock. In normal times there would be more locks than keys. Without the intervention of war (and, since Korea, even then) or the appearance of crisis, or the preponderance of like-minded majorities, the independence of institutions so greatly valued by Madison is conducive to the grinding, rather than the meshing, of gears. . . . What emerges is not “a government,” but many, often competitive and sometimes cooperative, governments; not a decisive point of decision making at the center, but a diffusion of decisional points; and not a state presumably representing a “common and durable interest,” but a society whose abundant pluralism finds ready expression through the many conduits available in the polity.21

Again, this system of separation of powers was designated to thwart tyranny, not to promote efficiency. By its own standards, it has worked quite well. But the natural lethargy built into the system now threatens to grind it to a halt. The failure of the government to govern, to act, to solve problems, sometimes seemed so overpowering that the fundamental legitimacy of the system was increasingly threatened. This fluidity and fragmentation of power creates a situation in which “the government” is controlled not by any single person, place, or party but by different people in different places (if it exists at all) often seeking different ends. Although noting that there is, in a technical sense, “a government,” Rockman comes to this conclusion: There is no unified government, no government of the day in the modern sense of that term. Instead, the design of the separation of powers system is predicated on the view expressed by Madison in Federalist 51 that such a system is essential for the maintenance of liberty. . . . The result is a government founded on defensiveness. Each of its parts can be assertive, but the assertiveness of the parts makes for an unassertiveness of the whole. . . . In short, the system of separated powers was (and largely remains) an institutional design meant to frustrate the exercise of power. This is so because American institutions do not so much divide powers as they divide power. In Samuel Huntington’s well-turned sentence, “America perpetuated a fusion of functions and a division of power, while Europe developed a differentiation of functions and a centralization of power.” Clearly, whatever the virtues of these antique institutions, their strong suit is not the efficient direction of an active government.22

In the 1780s, monarchy was the European norm. The inventors of the presidency had very few role models upon which to base their executive.

Is the Presidency Dangerous to Democracy?

15

When invented over 200 years ago, the presidency was a unique, and in many ways a peculiar, institution. Chosen by an unorthodox invention, the Electoral College, the office had limited powers in a checks-and-balances system with ambiguous constitutional authority, sharing most powers with a strong and in some ways dominant Congress.

Ratifying the Constitution: Is the President a King? The invention of the presidency in Philadelphia was but one step in the creation process. The system of government still had to be ratified by the states. And one of the chief bones of contention was the presidency—could the president become a king? Two opposing camps formed: the federalists, who supported the ratification, and the anti-federalists, most of whom sought a more democratic and decentralized government. It was the anti-federalists who were most suspicious of presidential power. Hamilton, Madison, and John Jay began writing broadsides in support of the new Constitution (The Federalist Papers), noting the limits on presidential power. The anti-federalists raised concerns about the presidency as well. Thomas Jefferson, American minister in Paris, was uneasy about some aspects of the new Constitution. “Reason and experience,” he wrote to John Adams in November of 1787, prove to us that a chief magistrate, so continuable, is an office for life. When one or two generations shall have proved that this is an office for life, it becomes on every succession worthy of intrigue, of bribery, of force, and even of foreign interference. It will be of great consequence to France and England to have America governed by a Galloman or Angloman. Once in office, and possessing the military force of the union, without either the aid or the check of a council, he would not easily be dethroned, even if the people could be induced to withdraw their votes from him. I wish that at the end of the 4 years they had made him for ever ineligible a second time.23

Jefferson was not alone. Others, like the anti-federalists, expressed deep concerns regarding the presidency. They feared that the president may become a king. Patrick Henry warned at the Virginia ratifying convention in 1788 that a “man of ambition and abilities” could easily “render himself absolute.”24 But such concerns, as dramatic as they were, soon would be answered by the federalists. Alexander Hamilton, chief advocate of energy in the executive, countered the anti-federalist view by arguing “a feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.” And “energy” was both a crucial “character in the definition of good government” and the defining attribute of the executive itself. Hamilton’s direct challenge to the anti-federalist charges, which appeared in

16

Michael A. Genovese

the Federalist No. 69, a comparison between the newly created president and the king of England, is worth quoting at length: The President of the United States would be an officer elected by the people for four years; the King of Great Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace [through impeachment]; the person of the other is . . . inviolable. The one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war [a right reserved to congress in the Constitution], and of raising and regulating fleets and armies [likewise, a responsibility of Congress] by his own authority. The one would have a concurrent power [with the Senate] in the formation of treaties; the other is the sole possessor of the power of making treaties. The one would have a like concurrent authority in appointing to office; the other is the sole author of all appointments. The one can confer no privileges whatsoever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce of currency of the nation; the other is in several respects the arbiter of commerce. . . . The one has no particle of spiritual jurisdiction; the other is supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the sole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism.25

In the end, the federalist arguments won out, and the Constitution won ratification. But the suspicions raised by the anti-federalists did not disappear. They would help shape the debate on presidential power for decades to come.

The Evolution of Presidential Power If the Constitution invented the outline of the presidency, and George Washington operationalized their incomplete creation, history and experience more fully formed this elastic institution. Over time, the presidency evolved from chief clerk to chief executive to national leader to imperial presidency. The presidency is less an outgrowth of the constitutional design and more a reflection of ambitious men, demanding times, exploited opportunities, and changing economic and international circumstances. Was the growth of presidential power inevitable? Theordore Lowi and Benjamin Ginsberg see the development of the presidency in this way: A tug of war between formal constitutional provisions favoring a chief clerk president and a theory of necessity favoring a chief executive president has persisted for two centuries. . . . But it was not until Franklin Roosevelt that

Is the Presidency Dangerous to Democracy?

17

the tug of war seems to have been won for the chief executive presidency, because after FDR . . . every president was strong whether he was committed to the strong presidency or not.26

Opportunity and necessity: two words that best describe why, over time, the power of the presidency has expanded. The original design created opportunities for ambitious men, especially in times of necessity, to increase presidential power. The presidency—elastic, adaptable, chameleon-like— has been able to transform itself to meet what the times needed, what ambitious officeholders grabbed, what the people wanted, and what world events and American power dictated. In many ways, the rise of presidential power is a surprise. From an antiexecutive bias (Revolution) to no executive (Articles) to a limited executive (the Constitution) today, the presidency has not been just one thing, but many. And presidential power has not been static, but dynamic. The presidency is a complex, multidimensional, contradictory, paradoxical office. It is embedded in a system—the separation of powers—that limits and frustrates the use of power. The office has been occupied by individuals from a wide range of backgrounds, possessing varied skills, motives, and ambitions. They served under drastically different conditions and circumstances and are at all times to be guided by the rule of law expressed in the Constitution. It should not then surprise us that the history of the presidency reflects the rise and fall, ebb and flow, of power. The presidency has been shaped by the varied individuals operating within a dynamic system under changing circumstances. Some presidents have been strong, others weak. Some eras demand change, others defy it. The presidency has been shaped by industrialization, the Cold War, American superpower status, economic booms and busts, wars and demands for racial change, increasing democratization, and the demands of capitalism. Presidents helped shape some of these changes, were victims of others, and innocent bystanders of still others. Great social movements, technological changes, newly emergent groups, and a host of other forces created opportunities and restraints on leadership. The story of the rise and fall of presidential power is a complex and perplexing one. It is a story of elasticity and adaptability, of leadership and clerkship, of strong and weak officeholders, of change and stasis.

A Cautionary Tale In Washington Irving’s classic fable Rip Van Winkle, the hero falls asleep shortly before the American Revolutionary War, and awakens 20 years later to a new world. Rip fell asleep when the British ruled the colonies, and the likeness of King George III graced the entrance to his local inn. Twenty years later he returned to his village and was stunned by all the changes—it seemed a new world where liberty, freedom, and democracy prevailed. But

18

Michael A. Genovese

above the door of the Inn, Rip noticed a familiar picture, for once again the face of a George adorned the drinking establishment. But this George was Washington, not the British monarch. The more things change, the more they stay the same? Was Irving warning us of the danger that this new Constitution might replace one King George with another? In his usual understated way, Irving writes of Rip: “He recognized on the sign, however, the ruby face of King George, under which he had smoked so many a peaceful pipe; but even this was singularly metamorphosed. The red coat was changed for one of blue and underneath was painted in large characters, GENERAL Washington.”27 A mere change of coat and title signifying nothing? In today’s America are we suffering from Rip Van Winkle disease? Have we fallen asleep at the wheel of democracy one day only to awaken with a King George at the helm? Has our president become a king? The framers of the United States Constitution created a republic based on the rule of law, the separation of powers, and the rights of citizens. Their invention seems barely discernible today. Today, presidential power poses a challenge to the rule of law. In fact, Bruce Ackerman warns of modern presidential power “transforming the executive branch into an enemy of the rule of law.”28 The president resembles a king in the pomp and circumstance surrounding the office, the power to make wars that surpass those of the British monarch our revolution overthrew, the blind deference we shower upon our leaders, and the loss of our rights to a government fighting what it calls a “permanent war.” Today our president exercises powers and prerogatives of a proportion undreamt of by a British monarch, all with the support of a sleeping public that may one day wake up and be shocked at the cost of this blind worship. We have—and who can dispute it—a truly imperial presidency. It is an office disembodied from the checks and balances envisioned by the framers as established in our Constitution. And as the latest George zooms onto the deck of the aircraft carrier U.S. Lincoln in a fighter jet—the fantasy of every four-year-old boy—we watch in obedient shock and awe as we close the door on democracy at home while claiming to deliver democracy abroad—at the point of a gun. Can all the king’s horses and all the king’s men put American democracy back together again? In the war on terrorism, must we sacrifice the republic for the empire? The emperor has no clothes? The emperor needs no clothes as we are blinded by the bright light of military conquest abroad and trappings of power and glory. The American colossus bestrides the globe amid the rush of PAX-Americana but our empire crashes our democracy. As Rome discovered, one could not be an empire and a republic, and so the republic gave way to the imperial ambitions of empire and emperors. From King George III to General George Washington, to President George W. Bush, etc., the more things change, the more they stay the same. The cost of our imperial ambitions abroad is a crushing of democracy at home. U.S. citizens are imprisoned without being charged with a crime, without the constitutional rights

Is the Presidency Dangerous to Democracy?

19

of due process, held indefinitely, not allowed to see an attorney, subject to military tribunals even though our courts are up and running, critics and dissenters are silenced, free speech is punished, and children—yes, children—are imprisoned at U.S. Camp Delta in Guantánamo Bay, Cuba! In Life of Galileo, one of Bertolt Brecht’s characters opines, “Unhappy is the land that has no heroes,” to which Galileo responds, “Unhappy the land that needs heroes.”29 But perhaps Galileo had it wrong, perhaps we do need heroes—but not just any heroes. We need persons of strength, character, and courage to speak truth to power, stand up for the Constitution, defend the rule of law from assaults by those who seek power and control. In a democracy we are supposed to lead. To rely on others to lead weakens democracy. As has been noted, the society that can get along without strong leadership is the society that produces many leaders. Like Rip Van Winkle, we must ask ourselves, what will we find when we wake up from this nightmare? We pay a heavy price for our political somnambulism. Democracy demands much of us.

An Eighteenth Century Constitution for a Twenty-First Century Superpower Can the presidency be effective and constitutional? Strong enough to fulfill its constitutional duties yet accountable enough not to pose a threat to our republican values? If the United States is an (“the”) imperial power, must we also have an imperial presidency? Sadly, we seem to have come full circle, from a revolution against the absolute power of a monarch to a presidency that more closely resembles the king than a president. Has the imperial presidency become the norm? As the central leadership agent of our Madisonian system, we need creative and effective presidential leadership. But to what ends? How do we bring Hamiltonian energy, to the Madisonian system, for Jeffersonian ends? What passes for democracy today is democracy in name only. Big money drives the engine of government. Presidential autonomy presides over our system. But, as Michael Lind reminds us, “Presidential democracy is not democracy.” He adds: “Americans must conclude that democracy does not mean voting for this or that elective monarch every four years and then leaving government to the monarch’s courtiers. Democracy means continuous negotiation among powerful and relatively autonomous legislators who represent diverse interests in society.”30 We celebrate democracy and worship our Constitution as we allow our democracy to be purchased by the highest bidder and our Constitution to be hijacked by fear and empire. The war against terrorism is but the latest challenge to constitutional government. Only a citizenry committed to the principles of constitutionalism and the rule of law can protect the republic. If we have the best democracy that money can buy, we have no democracy. If we have a president above the law, we have no constitutional republic.

20

Michael A. Genovese

Is the presidency dangerous to democracy and the rule of law? That is the question we try to answer in this book.

Notes 1. Edmund S. Morgan, Inventing the People (New York: Norton, 1988). 2. Thomas Paine’s Common Sense: The Call to Independence, ed., Thomas Wendel (New York: Barron’s, 1975), 98. 3. See Noah Webster, Sketches of American Policy, ed., Harry R. Warfel (New York: Scholars’ Facsimiles & Reprints, 1937). 4. Richard Barry, Mr. Rutledge of South Carolina (New York: Duell, Sloan and Pearce, 1942); and Michael A. Genovese, “Unearthing the Buried Foundations of the American Presidency,” White House Studies 4 (2004): 453–5. 5. See Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1967), Chapter 4. 6. See Charles C. Thach, Jr., The Creation of the Presidency, 1775–1789: A Study in Constitutional History (Baltimore, MD: Johns Hopkins University Press, 1923). 7. Thomas E. Cronin, ed., Inventing the American Presidency (Lawrence: University Press of Kansas, 1989). 8. See Chapter 1 of Harvey C. Mansfield, Jr., Taming the Prince: The Ambivalence of Modern Executive Power (New York: Free Press, 1989). 9. “The Debates in the Federal Convention of 1787 Reported by James Madison: June 1,” the Avalon Project at Yale Law School, available at http://elsinore. cis.yale.edu/lawweb/avalon/debates/601.htm. Accessed May 14, 2006. 10. James Madison, letter to George Washington, April 16, 1787, The Founders’ Constitution, Volume 1, Chapter 8, Document 6, available at http:// press-pubs. uchicago.edu/founders/documents/v1ch8s6.html. Accessed May 14, 2006. 11. Pierce Butler, letter to Weedon Butler, May 5, 1788, as quoted in S. Sidney Ulmer, “The Role of Pierce Butler in the Constitutional Convention,” Review of Politics 22 (July 1960): 361–74. 12. “The Debates in the Federal Convention of 1787 Reported by James Madison: June 4,” the Avalon Project at Yale Law School, available at http:// www.yale.edu/lawweb/avalon/debates/604.htm. Accessed May 14, 2006. 13. Ralph Ketcham, Presidents Above Party (Chapel Hill: University of North Carolina Press, 1984), 9. 14. Alan Wolfe, “Presidential Power and the Crisis of Modernization,” Democracy, 1, no. 2 (1981): 21. 15. Charles Beard and Mary Beard, The Rise of American Civilization (New York: Macmillan, 1933), 317. 16. David E. Haight and Larry D. Johnston, eds., The President: Roles and Powers (Chicago: Rand McNally, 1965), 1. 17. Alexander Hamilton, Federalist 51, in The Federalist with Letters of “Brutus,” ed., Terrence Ball (Cambridge: Cambridge University Press, 2003), 252. 18. James Madison, Federalist. 45, in The Federalist with Letters of “Brutus,” ed., Terrence Ball (Cambridge: Cambridge University Press, 2003), 227. 19. Alexander Hamilton, Federalist 70, in The Federalist with Letters of “Brutus,” ed., Terrence Ball (Cambridge: Cambridge University Press, 2003), 341.

Is the Presidency Dangerous to Democracy?

21

20. Edward S. Corwin, The President: Office and Powers, 1978–1984, 5th ed. (New York: New York University Press, 1984) originally published in 1940. See also Joseph M. Bessette and Jeffrey Tulis, The Presidency in the Constitutional Order (Baton Rouge: Louisiana State University Press, 1981); Louis Fisher, The Constitution between Friends (New York: St. Martin’s Press, 1978). 21. Bert Rockman, The Leadership Question: The Presidency and the American System (New York: Praeger, 1985), 39–41. 22. Ibid, 43. 23. Thomas Jefferson, letter to John Adams, November 13, 1787, available at http://www.let.rug.nl/usa/P/tj3/writings/brf/jefl65.htm. Accessed May 14, 2006. 24. Patrick Henry, Remarks at the Virginia Ratifying Convention, June 5, 1788, available at http://www.sagehistory.net/constitution/HenryConst.htm. Accessed May 14, 2006. 25. Alexander Hamilton, Federalist 69, in The Federalist with Letters of “Brutus,” ed., Terrence Ball (Cambridge: Cambridge University Press, 2003), 340. 26. Theodore J. Lowi and Benjamin Ginsberg, American Government: Freedom and Power (New York: W.W. Norton, 1990), 243–4. 27. Washington Irving, Two Tales: Rip Van Winkle and The Legend of Sleepy Hollow (New York: Harcourt Brace Jovanovich Publishers, 1984), 13. 28. Bruce Ackerman, “The New Separation of Powers,” Harvard Law Review 113 (2000): 658–1. 29. See Bertolt Brecht, The Life of Galileo, translated by Howard Benton (London: Eyre Methuen, 1981), Section 13. 30. Michael Lind, “The Out-of-Control Presidency,” The New Republic, August 14, 1995, 18–23.

This page intentionally left blank

Chapter Two From Presidential Wars to American Hegemony: The Constitution After 9/11 Louis Fisher

The use of military force by President George W. Bush against Iraq poses a threat to constitutional government, civil liberties, and national security (both here and abroad). It represents the culmination over the past 50 years of unilateral presidential wars accompanied by few checks from Congress or the judiciary. Academics, the media, and the general public have shown little understanding of constitutional limits and little interest in keeping the president within legal bounds. The current Iraq War reflects the ideological efforts of neoconservatives who have promoted, in recent decades, a far-reaching military agenda to assure American hegemony (the term they prefer) in world affairs. Their detailed plans, kept largely on the shelf, were activated with a rush after the 9/11 terrorist attacks. Bush came to Congress in 2002 to seek statutory authority for military action against Iraq, but when he ordered combat operations the following spring, he relied solely on what he considered to be his independent powers under the Constitution.1 Unilateral actions occurred elsewhere, including the creation of military tribunals and the designation of U.S. citizens as “enemy combatants,” denying them access to defense counsel or a trial.2 Although Bush’s war against Afghanistan attracted widespread support in the United States and in other countries, military operations in Iraq split the nation and alienated many allies. Opposition to the war in Iraq developed because the administration presented misleading, strained, and false justifications; failed to competently plan for and execute the war; permitted atrocities at Iraqi prisons; and incurred unnecessarily heavy costs in lives and funding. Spinning off from the war are fundamental questions about presidential authority, truthfulness, judgment, and competence. These issues are not new. The framers thought about and rejected the idea of presidents initiating war. They had good reason not to trust executive judgments in matters of war. Their reading of history convinced them that executives went to war not for the national interest but for reasons that had more to do with personal, family, and partisan ambitions. The framers’

24

Louis Fisher

distrust, sound at the time, has been validated and confirmed throughout America’s history. Yet, the record over the past half-century has been to concentrate much of the war power in the presidency, contrary to the framers’ intent, the constitutional text, and basic principles of republican government. Many sectors of American society, including the academy and the media, have contributed to the steady decline of representative government, checks and balances, and separation of power.

Chaining the Dog of War There should be no doubt about the framers’ decision to prohibit presidential wars. British precedents, on which they relied extensively in so many areas, assigned all of external affairs to the king: declaring wars, raising armies, making treaties, appointing ambassadors, and issuing letters of marque and reprisal (to authorize private citizens to engage in military actions). The U.S. Constitution grants not a single one of those powers to the president. The powers to declare war, raise armies, and issue letters of marque and reprisal are placed exclusively in Congress. The powers to make treaties and appoint ambassadors are given jointly to the president and the Senate. Expressing satisfaction with the drafting and ratification of the Constitution, Thomas Jefferson observed: “We have already given in example one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.”3 The wholesale rejection of the British model reflects the framers’ strong commitment to republican government. As part of a radical experiment with self-government, Americans would rule through elected representatives and a system of one branch checking another. The method of assuring public control was to vest in Congress the decision to initiate war against another country. Unfortunately, few citizens or public servants in the United States today have any idea of what a republic is, much less are prepared and willing to fight for it. Even if contemporary leaders believe that presidents may initiate war, there can be no question about the framers’ intent and no question about what the Constitution expressly states in the text. If we continue to describe the United States as a constitutional republic, we have a duty to respect the Constitution, especially with regard to going to war. Yet over the past half-century, constitutional values and principles have been largely ignored.

Founding Principles At the Philadelphia Convention, Pierce Butler wanted to give the president the power to make war, arguing that he “will have all the requisite qualities, and will not make war but when the Nation will support it.” The delegates

From Presidential Wars to American Hegemony

25

uniformly rejected his proposal. Roger Sherman explained that the president “shd. be able to repel and not to commence war.” Elbridge Gerry said he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” George Mason spoke “agst giving the power of war to the Executive, because not [safely] to be trusted with it; . . . He was for clogging rather than facilitating war.”4 At the Pennsylvania ratifying convention, James Wilson expressed the prevailing confidence that the American system of checks and balances “will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”5 What did the framers understand that we have forgotten? Why did George Mason say that it was not “safe” to trust the president with the war power? In their study of past governments, the framers understood that executives, in their search for fame and glory, had an appetite for war.6 John Jay, whose political experience lay with foreign affairs and executive duties, nonetheless warned in Federalist No. 4 that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.7

Who can read those words without thinking of presidential wars undertaken for partisan and personal reasons, rather than in the interests of the people? One example is the decision by Lyndon B. Johnson to escalate the war in Vietnam. He knew that Southeast Asia was not the place to be and that victory was unlikely, but he worried that the Republicans would exploit any sign of weakness on his part. Despite great misgivings, he deepened the U.S. involvement to avoid appearing “soft on Communism.”8 Instead of formulating a plan for the national interest, Johnson pursued “his own political fortunes” and chose to lie “in the pursuit of self-interest.”9 The national interest gave way to presidential deception, misrepresentation, distortion, gross understatements, and outright lies.10 In 1793, James Madison called war “the true nurse of executive aggrandizement . . . . In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.”11 Five years later, in a letter to Thomas Jefferson, Madison said that

26

Louis Fisher

the Constitution “supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.”12

From 1789 to 1950 For a century and a half, America honored the values and political structures established by the framers. Presidents could take certain actions of a defensive nature (to repel sudden attacks), but any offensive action against another country was reserved to congressional judgment. Writing in 1793, President George Washington said that any offensive operations against the Creek Nation must await congressional action: “The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.”13 Secretary of War Henry Knox informed Governor William Blount that Congress had decided to avoid war with the Creeks: “Congress alone are competent to decide upon an offensive war, and congress have not thought fit to authorize it.”14 Military actions against other nations followed the same exacting standard. When President John Adams decided it was necessary to use military force against France in 1798, he presented the matter to Congress and awaited statutory authority. In 1801, President Jefferson took certain military actions against the Barbary pirates in the Mediterranean, but then announced that he was “unauthorized by the Constitution, without the sanctions of Congress, to go beyond the line of defense.”15 When conflicts arose between the United States and Spain four years later, he said that “Congress alone is constitutionally invested with the power of changing our condition from peace to war.”16 The federal courts understood that the power to initiate war against other countries lay exclusively with Congress. In 1801, Chief Justice John Marshall observed: “The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry.”17 A federal circuit in 1806 repudiated the idea that a president could authorize military adventures abroad: “it is the exclusive province of congress to change a state of peace into a state of war.”18 President James Polk took decisive initiatives to provoke a military clash between United States and Mexican forces, but he never asserted that he could go to war on his own. After he presented the matter to Congress, it was up to lawmakers to decide between war and diplomatic alternatives. Congress chose war.19 The Civil War illustrates that all three branches understood that only Congress could authorize war against another nation. When the Supreme Court in 1863 upheld Lincoln’s blockade against the South, Justice Robert Grier emphasized that the president as commander in chief “has no power to initiate or declare a war against either a foreign nation or a domestic

From Presidential Wars to American Hegemony

27

State.”20 The executive branch, in court, took exactly the same position. Richard Henry Dana, Jr., who represented the White House, conceded that Lincoln’s actions had nothing to do with “the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress.21

Unconstitutional Presidential Wars On many occasions, from 1789 to 1950, presidents used military force without first obtaining congressional authority. None of those actions, however, could be called a major war. Edward S. Corwin said that the list of presidential initiatives consists largely of “fights with pirates, landings of small naval contingents on barbarous or semi-barbarous coasts, the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border, and the like.”22 Respect for constitutional government ended abruptly in 1950 when President Harry Truman took the country to war against North Korea single-handedly. At that same moment, the academic community failed to speak truth to power.

The Korean War On June 26, 1950, President Truman announced to the American public that the UN Security Council had ordered North Korea to withdraw its forces from South Korea and return to a position north of the 38th parallel. When North Korea failed to comply, Truman ordered U.S. air and sea forces to give support to South Korea. He made a commitment that the United States “will continue to uphold the rule of law.”23 In fact, Truman violated the U.S. Constitution, a congressional statute, the UN Charter, and his own public promises. To appreciate the scope of those violations, consider congressional debate in 1945. Senators were considering language in the Charter that called for member states to enter into “special agreements” when sending armed forces to the UN for collective military action. In order to encourage the Senate to pass the Charter, Truman wired this note from Potsdam: “When any such agreement or agreements are negotiated it will be my purpose to ask the Congress for appropriate legislation to approve them.”24 Thus, Truman pledged to come to Congress for statutory authority rather than attempt to act unilaterally. As ratified by the Senate, Article 41 of the UN Charter provided that all members shall make available to the Security Council, in accordance with special agreements, armed forces and other assistance. Each nation would ratify those agreements “in accordance with their respective constitutional processes.” The meaning of U.S. constitutional processes is defined by Section 6 of the UN Participation Act of 1945, which states with singular clarity that the special agreements “shall be subject to the approval of the Congress by appropriate Act or joint resolution.”25

28

Louis Fisher

Yet five years later Truman ordered U.S. troops to Korea without coming to Congress for authority, either in advance of the crisis or afterward. How could he evade the explicit language of the UN Participation Act? The short answer: He did not enter into a “special agreement.” Having avoided congressional policy through this lawyerly tactic, he nonetheless claimed to be acting under UN authority. His secretary of state, Dean Acheson, stated that Truman had done his “utmost to uphold the sanctity of the Charter of the United States and the rule of law,” and that the administration was in “conformity with the resolutions of the Security Council of June 25 and 27, giving air and sea support to the troops of the Korean government.”26 Yet Truman committed U.S. forces before the Council called for military action. In his memoirs, Acheson admitted that “some American action, said to be in support of the resolution of June 27, was in fact ordered, and possibly taken, prior to the resolution.”27 Truman had done nothing to uphold the sanctity of the UN Charter or the rule of law. Truman tried to minimize the violation by saying the nation was not actually at war. Asked at a news conference whether the country was at war, he replied: “We are not at war.”28 Asked whether it would be more correct to call the conflict “a police action under the United Nations,” he agreed: “That is exactly what it amounts to.”29 It was well known that the UN exercised no real authority over the conduct of the war. Other than token support from a few nations, it was an American war when measured by troops, money, casualties, and combat deaths. The Security Council requested that the United States designate the commander of the forces and authorized the “unified command at its discretion to use the United Nations flag.”30 Truman designated General Douglas MacArthur to serve as commander of this so-called unified command.31 Federal and state courts had no difficulty in concluding that the hostilities in Korea amounted to war.32 During Senate hearings in June 1951, Acheson finally conceded the obvious by admitting “in the usual sense of the word there is a war.”33

Kosovo and Iraq II Korea was the first unconstitutional presidential war because it entirely skirted Congress. Subsequent wars, as in Vietnam and the first Iraq War in 1991, were supported by congressional statutes. The second unconstitutional presidential war was Kosovo, in 1999, when President Bill Clinton went to war not on the basis of a Security Council resolution (which he could not get) but with the backing of NATO countries. Think of it. Presidents are not required to come to Congress for authority. Instead, they rely on international (UN) or regional bodies (NATO) for “authority.” If NATO, presidents seek support not from Congress but from Italy, Belgium, and other countries. To accept the constitutionality of this process, one has to argue that the president and the Senate, acting through the treaty process to create the UN and NATO, could eliminate the war prerogatives of the House of Representatives.

From Presidential Wars to American Hegemony

29

The third unconstitutional presidential war is the current war against Iraq. Although President Bush received statutory authority from Congress in October 2002, Congress did not satisfy its constitutional obligation by deciding on war. Rather, it passed legislation that allowed the president to make that decision, transferring a primary constitutional duty to the executive branch. Of course, that is precisely what the framers fought against.

Academic Cheerleaders From the Korean War to the present, a number of leading academics have contributed to the growth of presidential war power. This pattern was discussed in a paper by Thomas Cronin, delivered at the 1970 American Political Science Association annual convention. Entitled “The Textbook Presidency and Political Science,” Cronin criticized textbooks for underscoring “inflated and unrealistic interpretations of presidential competence and beneficence.” They inclined toward “exaggerations about past and future presidential performance.”34 Infatuation with the presidency necessarily diminished the role of Congress, the Constitution, and democratic processes. The deficiencies Cronin found in general are reflected in the writings of such scholars as Henry Steele Commager, Arthur S. Schlesinger, Jr., and Richard E. Neustadt.

Commager and Schlesinger Historians, rushing to support Truman’s intervention in Korea, failed to give proper attention to constitutional principles. Henry Steele Commager wrote an article in the New York Times on January 14, 1951, rebuking those who criticized Truman’s initiatives in Korea. Their objections, he said, “have no support in law or in history.”35 Yet Commager’s own research into law and history was shallow and misinformed. Consider this passage: [I]t is an elementary fact that must never be lost sight of that treaties are laws and carry with them the same obligation as laws. When the Congress passed the United Nations Participation Act it made the obligations of the Charter of the United Nations law, binding on the president. When the Senate ratified the North Atlantic Treaty it made the obligations of that treaty law, binding on the president.

Both of these famous documents require action by the United States that must, in the nature of the case, be left to a large extent to the discretion of the executive.36 Commager ignored the statutory text and legislative history of the UN Participation Act (requiring prior approval by Congress) and failed to address the constitutional violations that would be raised if the president

30

Louis Fisher

and the Senate, acting through the treaty process, attempted to strip from the House of Representatives its prerogatives over war. Arthur S. Schlesinger, Jr. was also an early defender of Truman’s action in Korea. In a letter to the New York Times on January 9, 1951, he disputed the statement by Senator Robert Taft that Truman “had no authority whatever to commit American troops to Korea, without consulting Congress and without Congressional approval,” and that by sending troops to Korea, he “simply usurped authority, in violation of the laws and the Constitution.” Schlesinger dismissed Taft’s statements as “demonstrably irresponsible.” Harking back to Jefferson’s use of ships to repel the Barbary pirates, Schlesinger claimed that American presidents “have repeatedly committed American armed forces abroad without prior Congressional consultation or approval.”37 Jefferson’s actions were not a precedent for Truman’s. Jefferson took limited defensive actions in the Mediterranean and came to Congress to seek authority for anything that went beyond the line of defense. Congress enacted ten statutes authorizing military action by Presidents Jefferson and Madison in the Barbary wars. In sharp contrast, Truman arrogated to himself the full war-making power, both defensive and offensive, and never came to Congress for authority. Jefferson respected congressional prerogatives and constitutional limits. Truman ignored both. As for the examples in which presidents repeatedly committed American armed forces abroad without prior Congressional consultation or approval, not a single precedent was of the magnitude to justify or legalize what Truman did in Korea. Years later, at the height of the Vietnam War and Watergate, Schlesinger expressed regret for calling Taft’s statement “demonstrably irresponsible.” He explained that he had responded with “a flourish of historical documentation and, alas, hyperbole.”38 The problem was not merely flourishes and hyperbole. Schlesinger decided to remove his professional and academic hat and don a partisan one to defend a president he admired and supported. In the 1960s, with the nation mired in a bitter war in Vietnam, Commager and Schlesinger both publicly apologized for their earlier unreserved endorsements of presidential war power. By 1966, Schlesinger was counseling that “something must be done to assure the Congress a more authoritative and continuing voice in fundamental decisions in foreign policy.”39 Commager told the Senate Foreign Relations Committee in 1967 that there should be a reconsideration of executive-legislative relations in the conduct of foreign relations.40 When he returned to the committee in 1971, he testified that “it is very dangerous to allow the president to, in effect, commit us to a war from which we cannot withdraw, because the war making power is lodged and was intended to be lodged in the Congress.”41 In 1973, Schlesinger spoke about the domestic and international pressures that helped concentrate power in the presidency: “It must be said that historians and political scientists, this writer among them, contributed to the presidential mystique.”42 Reconsideration is always valuable, but

From Presidential Wars to American Hegemony

31

independent scholarly checks are needed at the time of constitutional violations, not two decades later. Moreover, Schlesinger and Commager seemed to awake to presidential abuse because they disliked the occupant in the Oval Office: Lyndon Johnson or Richard Nixon. Scholars must weigh in against executive transgressions when they occur and sound the alarm against presidents they like.

Richard Neustadt Probably no presidential study has had the impact of Richard Neustadt’s Presidential Power (1960). Over the past four decades, students read this book to learn how presidents gain and exercise political power. Neustadt begins with a modest theme. Presidential power “is the power to persuade.”43 He also recognized that presidents need to use whatever coercion is necessary. Persuasive power “amounts to more than charm or reasoned argument. . . . For the men he would induce to do what he wants done on their own responsibility will need or fear some acts by him on his responsibility.”44 Still, it all sounds quite civilized and moderate. The formal powers of Congress and the president “are so intertwined that neither will accomplish very much, for very long, without the acquiescence of the other.”45 In a phrase that seems consistent with the framers’ reliance on checks and balances, power “is a give-and-take.”46 Neustadt is famous for saying that the constitutional convention did not create a government of separated powers: “Rather, it created a government of separated institutions sharing powers.”47 These introductory chapters offer a reassuring and soft glow of mutual accommodation and shared power. As the book moves along, a different side emerges. Neustadt clearly advises presidents to take power, not give it or share it. Power is something to be acquired and concentrated in the presidency, and the power is for personal—not constitutional—use. Neustadt’s model president is Franklin D. Roosevelt, not Dwight D. Eisenhower: “the politics of selfaggrandizement as Roosevelt practiced it affronted Eisenhower’s sense of personal propriety.”48 Was it just Eisenhower’s “personal propriety” or his understanding of what the Constitution allowed, both in terms of separation of powers and federalism? To Neustadt, it did not seem to matter. FDR had every right to seek power for his own use and enjoyment: “Roosevelt was a politician seeking personal power; Eisenhower was a hero seeking national unity.”49 Because Eisenhower cared more for national unity than personal power, Neustadt wrote him off as an “amateur.”50 Neustadt covers only part of Truman’s problems in Korea. Truman gave General Douglas MacArthur too much latitude and had to fire him. Truman’s effort to seize steel mills to prosecute the war in Korea was struck down by the Supreme Court. Whether Truman had constitutional or legal authority to go to war against North Korea was not addressed by Neustadt, nor did he explore at all Truman’s inflated definitions of executive emergency power that the judiciary and the country found offensive.51 Issues of

32

Louis Fisher

that nature did not attract Neustadt’s attention. Certainly Truman never used the power of “persuasion” to convince Congress and the public for the war. On that score there was no talk of “shared power.” Neustadt appeared to support the military intervention in Korea, on both legal and political grounds. It was Truman’s job “to make decisions and to take initiatives.” Among Truman’s private values, “decisiveness was high upon his list.” His image of the president was “man-in-charge.”52 Applying that attitude to the Korean War, there is no need to persuade others or enter into a give-and-take. Truman satisfied his high calling if he made a decision and took the initiative. Whether he had constitutional authority to act was not examined by Neustadt. Perhaps dwelling on constitutional issues smacked too much of the public law model developed by Corwin. At least in the area of the war power, Neustadt’s book does not encourage or advise a president to persuade or seek interbranch accommodations and compromises. It is written for “a man who seeks to maximize his power.”53 It would fit the needs of an American president, Winston Churchill, Adolf Hitler, Benito Mussolini, or Joseph Stalin. Indeed, any executive who limited his power by worrying about constitutional or statutory limits would appear weak. In maximizing power, a prime ingredient is confidence: “Such confidence requires that his image of himself in office justify an unremitting search for personal power.”54 An interesting choice of words: not institutional power or constitutional power but personal power. Neustadt again: “The more determinedly a President seeks power, the more he will be likely to bring vigor to his clerkship. As he does so he contributes to the energy of government.”55 Success is measured by action, vigor, decisiveness, initiative, energy, and personal power. Absent from this analysis are constitutional checks, sources of authority, or the ends to which power is put. Throughout the book, Neustadt makes only two brief (and inconsequential) references to the Constitution, neither of which merit an entry in the index.56 Only in the Afterword, published in 1964, does Neustadt show his hand on what he thinks the Constitution requires. In discussing the Cuban Missile Crisis of 1962 and the substantial nuclear capability of both the Soviet Union and the United States, he sees profound consequences for the presidency.57 The Constitution, he says, originally contemplated that decisions of military force “should emanate from President and Congress,”58 but the prospect of nuclear war had worked a fundamental change: “when it comes to action risking war, technology has modified the Constitution: the President perforce becomes the only such man in the system capable of exercising judgment under the extraordinary limits now imposed by secrecy, complexity, and time.”59 Persuasion, interbranch accommodation, give-and-take—given prominence in the 1960 edition—were now wholly jettisoned in the case of nuclear war. In their place is this striking formulation: “The President remains our system’s Great Initiator. When what we once called ‘war’ impends, he now becomes our system’s Final Arbiter.”60 Neustadt’s reformulation may appear

From Presidential Wars to American Hegemony

33

to turn on nuclear war, but for the conventional war against Korea, he also supported Truman as the great initiator and final arbiter. In the year of Neustadt’s paperback edition, President Lyndon B. Johnson would ask for and receive from Congress the Tonkin Gulf Resolution, grounded on a false report of a North Vietnamese unprovoked attack on U.S. ships.61 Having ignored the harm done by the Korean War to Truman, the Democratic Party, and the nation, Neustadt was in no position to anticipate the damage the Vietnam War would inflict on constitutional government. His model of the presidency did not make room for such considerations. When Neustadt’s book was reissued in 1990 under a different title, in the Preface he wrote: “To share is to limit; that is the heart of the matter, and everything this book explores stems from it.”62 The 1960 edition and the 1964 Afterword had little to do with sharing the war power. Neustadt centered that power in the president, not only for nuclear war but also for the Korean War. He was stung by the suggestion that the earlier edition served as a primer for presidential abuse during Watergate.63 He explained that he assumed that White House aides would be “experienced in government, to some significant degree, as I had been when I was there in Truman’s second term,” and that they would have a “feel” for Congress and understand “what it means to work inside a Presidency sharing powers with the Congress, courts, and states, where no one has the ‘final’ word, except, sometimes the voters.”64 With respect to Korea, Truman did not share powers with Congress and it was he—and no one else—who assumed the final word on going to war. The first part of this chapter explains the rise of presidential wars. I turn now to the contemporary stage: a U.S. hegemony advocated by neoconservatives. I do not place the responsibility solely on neocons. Their doctrines draw heavily from earlier liberal writings, including those of Commager, Schlesinger, and Neustadt.

Doctrines for American Hegemony Recent books warn about the rise of the American Empire.65 The word empire implies a vast land holding, such as the Roman, British, and French Empires. Substituting “hegemony” has advantages because it simply means a system where one country has preponderant power over other territories. No actual occupation or administration is needed, other than the U.S. military bases that are scattered around the globe. The U.S. occupation of Iraq in 2003 appear to be a by-product of the 9/11 terrorist attacks, but the plan for extending American military power to the Middle East dates back to many decades. The push for an aggressive foreign policy came from the neoconservatives, who took a hard military line against Communism and continued to press that agenda after the collapse of the Soviet Union.

34

Louis Fisher

Following the U.S. victory in Iraq in 1991, no one in a senior position in the Bush I administration recommended going North to Baghdad to occupy the country. President Bush, Defense Secretary Dick Cheney, National Security Adviser Brent Scowcroft, and General Colin Powell counseled against such a move.66 Yet within a year, the neocons, strategically located in the White House and executive departments, began drafting ambitious plans for military action against Iraq and converting its government to a liberal democracy. They owe a special debt to President Truman and the political philosopher Leo Strauss. The Truman Doctrine: The neocons look to the Truman years to find justifications for military force against Communism then and terrorism now. They see parallels between the period immediately after World War II and the current war against Iraq. In both the cases, Truman and Bush were committed to the belief in American exceptionalism and the need to spread democracy to other countries. They point to Truman’s address in 1947, where he insisted on the “frank recognition that totalitarian regimes imposed on free people, by direct or indirect aggression, undermine the foundations of international peace and hence the security of the United States.”67 Just as Truman pledged to confront Soviet expansionism and promote freedom, so does Bush stand opposed to Islamic fundamentalism in the name of freedom.68 Militant, global anti-Communism became a characteristic of the postwar intellectual Right,69 but the same can be said of the postwar intellectual Left. Schlesinger’s The Vital Center, published in 1949, took a hard line against Communism and Stalinism. He voiced “an unconditional rejection of totalitarianism” and terrorism. In his view “the totalitarian left and the totalitarian right meet at last on the murky grounds of tyranny and terror.”70 Neocons would applaud his sentiments: “Our own objective is clear. We must defend and strengthen free society. . . . War is the next most certain road.”71 Like the neocons, Schlesinger admired Winston Churchill because he had the instincts “of an imperial aristocrat” and “was not afraid to fight.”72 The 1949 book promotes a manly, martial spirit. Schlesinger called for a “new virility”73 and praised rulers with “martial values: daring, selfsacrifice, energy, strength, ‘the ferocity mixed with gentleness.’ ”74 Democracy would founder, he warned, unless it could produce “the large resolute breed of men capable of the climactic effort.”75 Neocons would disagree only with Schlesinger’s critique of capitalism and the business class.76 The conservative community also endorsed military force against the Soviet Union, even the use of nuclear weapons. During the Eisenhower years, the right popularized the view “Better Dead than Red,” preferring an exchange of ICBMs (Intercontinental Ballistic Missiles) to living under Communism. Many of those associated with this attitude had earlier worked with communists and Trotskyist groups, turning now with a vengeance toward former comrades. George Nash, in his intellectual history of the conservative movement, described the conservative understanding of foreign affairs “as a titanic conflict of ideologies, religions, and civilizations . . . decisively shaped by the former Communists and Trotskyists who dominated

From Presidential Wars to American Hegemony

35

the National Review circle in its early years.”77 He singled out these prominent names: Frank Meyers, James Burnham, Whittaker Chambers, William Schlamm, William Henry Chamberlin, Willmoore Kendall, Eugene Lyons, Freda Utley, and Max Eastman. Conservatives in the 1950s and 1960s learned how to wield military rhetoric, advocated the moral superiority of the West and the United States, and insisted on military superiority over military sufficiency, liberation over containment.78 A similar journey would take other intellectuals from Communism to neoconservatism.

The Straussians Leo Strauss left Germany in 1932, pursuing research in France and England before settling in the United States in 1938. For several decades he taught at the New School for Social Research and the University of Chicago. Some of his core ideas have appealed to both liberals and conservatives. He believed that fundamental political rights come from nature, not convention. He took literally the language that inspired the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” Those rights are grounded in nature, not in governmental acts that can be granted and later taken away.79 Strauss concentrated on political philosophy, not foreign policy or national security, but his writings reveal a passionate stand against totalitarianism, opposition to relativism and value-free scholarship, and support for liberal democracy.80 The latter position is shaky. First is the problem with the word “liberal,” which is used so differently in the United States and Europe. Liberal in the European sense can mean conservative in the United States. Also, even supporters of Strauss concede that he found problems with both liberalism and democracy.81 Strong elitist themes appear in his work and he faults liberalism for producing relativism, an erosion of religious faith, and nihilism. He associated liberal democracy with the weak Weimar Republic that preceded Nazism.82 Strauss feared that reason would undermine religion and faith. It has been said that he did not disagree with Karl Marx that religion is the opium of the people; he differed only in believing that the people need the opium.83 Strauss viewed the Holocaust as a “logical outcome of the ascendancy of Enlightenment rationalism, nihilism, liberalism, and secularism.”84 He opposed much of modernism and sought guidance from earlier times. In similar fashion, Moslem fundamentalists resist the influence of the West and look to more traditional values. Generalizations about Straussians are hazardous. They split into different camps and frequently war with each other.85 Students of Leo Strauss became professors of students now actively involved in the neoconservative movement. They supported the use of military force and confrontation against the Soviet Union and adopted the

36

Louis Fisher

same posture against Islamist fundamentalism. Prominent neocons in the defense establishment include Paul Wolfowitz, Douglas Feith, Abram Shulsky, I. Lewis (Scooter) Libby, William Kristol, Carnes Lord, Gary Schmitt, Richard Perle, Elliott Abrams, John Bolton, and Zalmay Khalilzad.86 Straussians and neocons object to modernism’s “turning away from the traditional understanding of truth as an independently existing, accessible and knowable quality.”87 From this vantage point they stake out a strong moral position on good and evil, whether evil takes the form of a political philosopher, Communism, or Saddam Hussein. Strauss denounced Machiavelli as the “teacher of evil.”88 Strauss’s writing style has been described as combative, rancorous, truculent, belligerent, and aggressive.89 His critiques of others are “sharp, cutting, and often rebuking.”90 In their ideological battles with domestic and international adversaries, neoconservatives “have not infrequently viewed their enemies as embodiments of evil who must be destroyed, rather than as opponents to be debated or persuaded.”91 In these public debates, neoconservatives “seemed less interested in promoting dialogue with opponents than with demolishing them.”92 The word “evil” is not used casually. It evokes strong emotions in Straussians and neocons. It was not happenstance that President Ronald Reagan called the Soviet Union “the evil empire,” and it was a short step from there to President Bush II referring to Iraq, Iran, and North Korea as the “axis of evil.” Allan Bloom, a Straussian and author of the best-selling The Closing of the American Mind (1987), inveighed against moral relativism and the consequent loss of the search for truth. Students, he mourned, had “no idea of evil.”93 Consistent with this theme is a recent book by David Frum and Richard Perle: An End to Evil: How to Win the War on Terror (2004). It must be comforting to know that evil is on one side and you are on the other. Fighting evil, as you see it, justifies whatever steps are needed to reach a noble end. If military intervention results in the deaths of innocent civilians and political turmoil in an occupied country, that is tragic but part of a necessary struggle. Of course this frame of mind, resolute spirit, and moral certitude are held with equal intensity by neocons and Islamic fundamentalists. Both sides are dedicated to fighting evil.94

The Neoconservatives A group of liberal, Democratic intellectuals coalesced around the theme of anti-Communism in the late 1940s, willing to take the fight to totalitarian regimes. During the 1960s they broke with liberalism, student protests, the antiwar movement, New Left radicalism, and what they saw as a form of isolationism following the bitter war in Vietnam. Democratic Party reforms, McGovern’s defeat in 1972, the “blame America” crowd, and Carter’s presidency deepened the alienation. By 1981, many of these intellectuals found a home in the Reagan administration. Over time, they acquired and eventually adjusted to their new label, neoconservative.95 In the 1980s, they

From Presidential Wars to American Hegemony

37

were successful in having President Reagan promote Wilsonian principles as part of an effort to spread democracy around the globe. The strategy of neocons at that time depended on political pressure and financial assistance, not military force.96 Joshua Muravchik’s book, Exporting Democracy (1992), is written within a framework of democratic realism, which includes a willingness to advance U.S. interests by war. However, the techniques he advanced were ideological, not military: overseas radio broadcasting, rhetorical encouragement, emergency relief, economic credits, debt relief, investment, internships in the West, student exchanges, and sending U.S. experts abroad to counsel on fledgling civil and governmental bodies and businesses.97 A recurrent theme in neoconservative writings is the endangered presidency. Liberals, having encouraged and supported “the imperial presidency,” turned against it because of Vietnam and Watergate. To the neocons, this attack on presidential power caused damage to “the main institutional capability the United States possesses for conducting an overt fight against the spread of Communist power in the world.”98 Neocons frequently deplore any loss of presidential power. They criticized President Reagan for failing to protect his institutional powers, leaving the office “weaker than he found it.”99 Neocons show no comparable concern for protecting the powers of Congress or the system of checks and balances. Liberals, after their initial attack on the presidency, largely champion executive power and also show little interest in congressional prerogatives or checks and balances. In recent decades, when conservatives express constitutional concerns it is largely to object to legal constraints placed on presidential power. They write about congressional encroachments in the field of foreign affairs, covert actions, war powers, and the veto power. Included among these critics of congressional interference are Straussians and neocons.100 Scholars with a Straussian orientation pay little attention to Congress, and what is said is usually derogatory.101 A refreshing exception is the work of Joseph Bessette.102 It was not always this way. From the 1940s to the late 1960s, conservatives were more respectful of Congress and understood its important role in preserving constitutional government. In his classic The Road to Serfdom (1944), Friedrich A. Hayek worried about the transfer of legislative power to “experts” in the executive branch, concluding that this would undermine democracy and lead to arbitrary power and dictatorship.103 Although conservatives readily adopted Hayek, he declined membership.104 Willmoore Kendall, quite likely one of a kind in the conservative community, recognized the importance of a strong and independent Congress.105

Irving Kristol Irving Kristol has been a major figure in articulating the values of the neoconservative community. His essay in 1993 singles out three pillars of modern

38

Louis Fisher

conservatism: religion, nationalism, and economic growth.106 The third pillar is readily understood: belief in a market economy, respect for property rights, low taxes, and limited federal intervention. He emphasizes religion because secular rationalism “has been unable to produce a compelling, self-justifying moral code.”107 There is much truth in that, but the same can be said of traditional religion. Both secularism and religion have contributed to immoral acts. Kristol adds that philosophy “can analyze moral codes in interesting ways, but it cannot create them.”108 An intriguing observation, because Leo Strauss and his followers rely extensively on Plato, Aristotle, and other classical philosophers. They typically draw moral codes from those writings, not the Bible. Of the three pillars, Kristol considers religion as “easily the most important because it is the only power that, in the longer term, can shape people’s characters and regulate their motivation.”109 American conservatives are comfortable with that formulation. So are Islamic fundamentalists, including Osama bin Laden. Kristol does not equate moral codes with revelation. They arise, he says, from tradition and community values: “Moral codes evolve from the moral experience of communities, and can claim authority over behavior only to the degree that individuals are reared to look respectfully, even reverentially, on the moral traditions of their forefathers.”110 His explanation does not depend on scripture or revealed truth. For that reason, secular rationalism— at least over time—is a credible alternative to traditional religion. What of the second pillar, nationalism? In 1983, Kristol said that neoconservatism “is not merely patriotic—that goes without saying—but also nationalist.”111 He regarded nationalism as “probably the most powerful of political emotions” and warned that the extreme left, when it is in power, “immediately attaches nationalism to its ideological aspirations.”112 Yet his essay in 1993 included nationalism as the second pillar of modern conservatism. Kristol does not explain in any depth why he selects nationalism as a primary value. It may reflect an effort to separate American conservatives from American Communists who took direction from the Soviet Union. Nationalism would also exclude the need to formulate and execute national security through international institutions, such as the UN. Neocons clearly find that anathema, and yet nationalism is also a shorthand description of “paleoconservatives,” who place the emphasis on U.S. interests even to the extent of courting isolationism.113 Neocons, by contrast, are Wilsonian internationalists. In his later writings, Kristol seems less concerned that nationalism can inspire a darker ideology that promotes a superior race. The latter meaning is advanced by Michael Ledeen in the Weekly Standard in 1996: “our foreign policy must be ideological—must be designed to advance freedom. . . . In these days of multicultural relativism, it is unfashionable to state openly what the rest of the world takes for granted: the superiority of American civilization.”114 That attitude helped spur and justify the second Iraq War and it colors the National Security Strategy issued by the Bush administration in 2002.

From Presidential Wars to American Hegemony

39

The neocons broke with McGovern’s followers because they had “qualities generally associated with extremism: they were ideological, moralistic, and evangelistic.”115 Three decades later, much of the neoconservative movement has morphed into what it once despised. Neocons once spoke disparagingly of the “French-Continental Enlightenment” emphasis on utopian expectations, statist implications, preoccupation with planning, and “grandious ambitions” of transforming political society,116 associating those values with the left. Those same values are now unabashedly embraced by neocons.

Military Strategies In 1992, toward the end of the Bush I administration, Wolfowitz, Libby, and Khalilzad teamed up to produce a Pentagon document called the Defense Planning Guidance. A draft copy, leaked to the press, envisioned the United States as the globe’s only superpower, capable of using its military might to advance and protect U.S. interests. After running into strong criticism, the draft was rewritten and toned down.117 This strong military edge, set aside in 1992, would reappear in subsequent documents prepared by neocons.118

American Exceptionalism No one can fault the neocons for hiding their political agenda. It is put front and center. Writing in 1996, William Kristol and Robert Kagan advocated a neo-Reaganite foreign policy. That meant hefty increases in military spending, “greater moral clarity,” and a need to champion “American exceptionalism.”119 Here is the key phrase used to justify America’s preeminent military role in the post–Cold War world: “Benevolent global hegemony.” For those who considered such language as “either hubristic or morally suspect,” Kristol and Kagan explain that a hegemon “is nothing more or less than a leader with preponderant influence and authority over all others in its domain.” When Russia and China denounce U.S. “hegemonism,” neocons accept this critique “as a compliment and guide to action.”120 To those who object to the United States glorifying the notion of dominance, Kristol and Lawrence Kaplan reply: “Well, what is wrong with dominance, in the service of sound principles and high ideals?”121

The Connection with Israel A number of neocons have been strong supporters of the Likud Party in Israel. Perle, Feith, David Wurmser and several others wrote “A Clean Break,” a 1996 report for a Jerusalem-based think tank. It recommended striking Syrian military targets in Lebanon and in Syria, removing Saddam Hussein from power, and helping the Hashemites in Jordan exercise control

40

Louis Fisher

over Iraq.122 Two years later Congress passed the Iraq Liberation Act, supporting efforts to remove Saddam Hussein and replace him with a democratic government. However, the law explicitly states that none of its provisions authorize the use of American troops to fulfill the purposes of the statute. It merely authorized up to $97 million in military supplies to Iraqi opposition groups as part of the transition to democracy in Iraq.123 It is too much to draw a straight line between the second Iraq War and the Jewish intellectuals who are so prominent in the neoconservative community. Israel has many defenders, including the Religious Right in America since the 1970s. Christian evangelists believe that the Second Coming will occur in Israel and that it will be “preceded by the conversion of the Jews to Christianity; thus, both the Jews and Israel need to be saved in order to fulfill their dual roles in Christian eschatology.”124 Jewish Orthodox settlers await the Messiah to find redemption; Muslim Sheikhs cite verses in the Koran that foretell of Israel’s destruction; American evangelical ministers “insist on their deep love for Israel” while awaiting apocalyptic battles that will fill dry river beds with blood.125

Reasons for Regime Change Neocons offered many reasons to overthrow Saddam Hussein. Writing in 1999, David Wurmser devoted much of his analysis to Hussein’s “pernicious, extortionist character” and his “brutal use” of force against Iraqi citizens and neighboring countries.126 Citing Hussein’s bloody record is a convenient way to build public support for military action, but Wurmser suggests that the U.S. interest in Iraq is based on certain fundamentals and realities that have nothing to do with whether an immoral tyrant is in power: A nation of 22 million, Iraq occupies some of the most strategically blessed and resource-laden territory of the Middle East. It is a key transportation route, and it is rich in both geographic endowments and human talent. Its location on pathways between Asia and Europe, Africa and Asia, and Europe and Africa makes it an ideal route for armies, pipelines, and trade from both the eastern Mediterranean and Asia Minor to the Persian Gulf. Iraq also has large, proven oil reserves, water, and other important resources.127

In a book edited in 2000, Kristol and Kagan promote an ambitious and bellicose agenda, as do the authors who contributed essays (including Abrams, Perle, and Wolfowitz). Regarding Iraq, Kagan and Kristol object that Bush I “failed to see that mission through to its proper conclusion: the removal of Saddam from power in Baghdad.”128 U.S. troops should have been kept in Iraq “long enough to ensure that a friendlier regime took root.”129 A section on “regime change” encourages “a broad strategy of promoting liberal democratic governance throughout the world.”130 Military action against Iraq would be one step.

From Presidential Wars to American Hegemony

41

In September 2000, the Project for the New American Century issued a report entitled “Rebuilding America’s Defenses: Strategy, Forces and Resources For a New Century.” The Project, established in 1997, is chaired by William Kristol. The back page, identifying 27 participants, includes the names of Wolfowitz, Libby, and Shulsky. The report explains that the project builds “upon the defense strategy outlined by the Cheney Defense Department in the waning days of the Bush Administration.” Specifically cited is the 1992 Defense Policy Guidance that “provided a blueprint for maintaining U.S. preeminence, precluding the rise of a great power rival, and shaping the international security order in line with American principles and interests.”131

The National Security Strategy of 2002 Much of the neocon framework appears in an extraordinary document released by the Bush administration in September 2002, entitled “The National Security Strategy of the United States of America.” It incorporates the doctrines of preemption, military superiority, and U.S. preeminence in world affairs. More significant, however, is the tone of the report. It explains that the United States embodies certain intrinsic truths and that it has a moral and political obligation to spread those truths to other countries, using military force when necessary. The introductory statement by President Bush begins by identifying “a single sustainable model for national success: freedom, democracy, and free enterprise.” That model does not merely apply to the United States and its allies. It is a model for the entire world. Thus, the “values of freedom are right and true for every person, in every society—and the duty of protecting these values against their enemies is the common calling of freedom-loving people across the globe and across the ages.”132 This is a call both to duty and to action. According to the Bush statement, the United States will “not use our strength to press for unilateral advantage.” It has already done so in Iraq and there is every reason to expect military power to be applied elsewhere. He says that America will create a balance of power and conditions “in which all nations and all societies can choose for themselves the rewards and challenges of political and economic liberty.” Yet, this choice is far from voluntary. In fighting “terrorists and tyrants,” the United States “will hold to account nations that are compromised by terror, including those who harbor terrorists—because the allies of terror are the enemies of civilization.” The only path to peace and security, Bush warns, “is the path of action.”133 Bush ends his statement by calling freedom “the non-negotiable demand of human dignity; the birthright of every person—in every civilization.” In what could be read as an American jihad, he states that “humanity holds in its hands the opportunity to further freedom’s triumph” over war, terror,

42

Louis Fisher

tyrants, poverty, and disease. “The United States welcomes our responsibility to lead in this great mission.”134 The emphasis on freedom in this document reappears in Bush’s Inaugural Address on January 20, 2005. The clear mission is for America to spread freedom across the globe. To hear Bush and other conservatives gather around this theme strikes a discordant note. For conservatives, over the years, freedom has not the highest value or even of high priority. It has been distinctly subordinate to such values as virtue and political order.135

The Commitment to Nation-Building The neocons who championed the second Iraq War displayed little apprehension about the use of U.S. military power. America’s commitment of armed forces abroad is unlikely to be abusive, they argue, because “American foreign policy is infused with an unusually high degree of morality.”136 What if it isn’t? What happens when a policy intended to be benevolent turns destructive or even evil? Why do conservatives, traditionally distrustful of human nature and, in the past, supportive of limited government and the need for checks and balances, find such a comfort level with unwavering dependence on the national government, military force, nation-building, and presidential power? The conservative hat fits awkwardly on the neocons. Initially, neoconservatives found their foothold by checking the liberal agenda, ranging from the domestic initiatives associated with the Great Society to the liberal opposition to military force after Vietnam. This neocon posture gave way, in time, to an “eschatological faith in America’s mission civilisatrice, to be fulfilled by military means.”137 Neocons began to object to what they called the “feminization” of politics and urged, in its stead, a national security strategy fortified by “manly qualities.”138 Neocons are quick to criticize “realists” who doubted that U.S. military force could bring democracy to Iraq. Two neocons, writing before Bush went to war against Iraq, thought that after the defeat of Saddam Hussein and the occupation of the country, “installing a decent and democratic government in Baghdad should be a manageable task for the United States.”139 Those words, by Lawrence Kaplan and William Kristol, were written a few months before U.S. troops moved against Iraq. What accounts for this carefree confidence, this blissful unawareness of the coming bloody insurgency? Why were not neocons more “realistic” and better prepared for guerrilla warfare? Realism alone can be blind and unimaginative; idealism without realism is hare-brained. Francis Fukuyama, part of the neocon community, recently criticized his colleagues for indiscriminately supporting the use of military force abroad. He notes that neocons in the past warned about “the dangers of ambitious social engineering, and how social planners could never control behavior or deal with unanticipated consequences.” He observes that even more modest goals, such as eliminating poverty in the United States or raising test scores

From Presidential Wars to American Hegemony

43

in Washington, DC have encountered a multitude of intractable problems. With those experiences in mind, he wondered how neocons in backing the Iraq War could “expect to bring democracy to a part of the world that has stubbornly resisted it and is virulently anti-American to boot.”140 Fukuyama has examined the record of U.S. efforts to build or strengthen nations. For the successful examples, as with postwar Germany and Japan, the United States was willing to be an occupying power and remain for years. The United States worked with two countries that already possessed strong bureaucratic structures and traditions. The pattern of U.S. intervention elsewhere, including Cuba, the Philippines, Haiti, the Dominican Republic, Mexico, Panama, Nicaragua, South Korea, and South Vietnam, should give one pause.141 The experience with Germany and Japan fails for another reason. The German and Japanese military forces were crushed by the allies and were willing to accept occupation. No such defeat befell the Iraqis.142 Exactly why the Bush administration went to war against Iraq is anybody’s guess. A half dozen or more “explanations” are available. Noah Feldman puts it well by saying that the American invasion “was the product of several disparate, mutually conflicting strands of thought, some benightedly idealistic, others brutally realist, and almost all based on some misunderstanding of the likely consequences of the invasion in Iraq itself.”143 Those who supported the removal of Saddam Hussein wondered if the Bush administration could be trusted to carry out the task in an effective manner.

Executive Competence Distrust of executive power has a constitutional base: the inclination of presidents to use military power for personal or partisan motivations, not for the national interest. Distrust should also extend to the limited competence within the executive branch to plan and execute a successful war. Major strategic and tactical errors accompanied the Korean and Vietnam Wars. Miscalculations, errors of intelligence, and false statements have haunted the second war against Iraq. The mistakes came not from the military but from civilian leadership, especially at the level of the White House and within the Pentagon.

Formulating a Successful Plan Whatever skills and talents are demanded of military officers in time of war, once the president obtains authority from Congress for offensive operations it is the president’s duty to clarify overall goals. He must crystallize the objectives. The president—not military commanders—has the responsibility for shaping the key decisions about military strategy. Under the U.S. constitutional system of civilian supremacy, military leaders carry out

44

Louis Fisher

presidential policy. It is the president’s job to see that the policy is clear and achievable.144 John Burke and Fred Greenstein contrasted the leadership styles of Dwight D. Eisenhower and Lyndon B. Johnson on the war in Vietnam. Eisenhower promoted a more open process to examine policy options without being prematurely locked into one. Johnson never clarified the ends and means of what the United States intended to do in Vietnam. He thought that a vigorous commitment of U.S. military power would spell success. Eisenhower knew better. Johnson often intimidated participants in policy debates. Eisenhower did not. The president is the key figure in creating a climate that constantly tests the reality, feasibility, and constitutionality of U.S. national security policy.145

Pointers from the Private Sector In a book intended for business leaders, Larry Bossidy and Ram Charan explain the primary factors that lead to success. Their advice applies quite well to the government. To execute a plan well, it must be based on reality, not fantasy.146 “Realism is the heart of execution.”147 Repeatedly, the Bush administration relied on Iraqi exiles who predicted that U.S. soldiers would be greeted as liberators, not occupiers. From that assumption came the judgment to have a minimum number of troops to secure the country. Based on an expectation that was misguided and misinformed, the Bush plan for war invited failure. Bossidy and Charan explain how leaders discover reality: “You need a robust dialogue to surface the realities of the business.”148 Leaders “are actively curious, and encourage debate to bring up opposite views.”149 In formulating a plan, there must be openness and candor. A robust dialogue “starts when people go in with open minds.”150 When participants speak candidly, “they express their real opinions, not those that will please the power players or maintain harmony.”151 To develop a realistic plan, the emphasis must be on “truth over harmony.”152 A vigorous dialogue “brings out reality, even when that reality makes people uncomfortable.”153 The debate on assumptions “is one of the most critical parts of any operating review.” Leaders cannot set realistic goals “until you’ve debated the assumptions behind them.”154 To set realistic goals, a leader must “maintain and sharpen your intellectual honesty.” The essential standard: “See things as they are, not the way you want them to be.”155 The public record indicates that President Bush and his top advisers went to war in Iraq with a set of untested, shaky assumptions that were never subjected to rigorous review. When General Eric Shinseki, army chief of staff, told a Senate committee that he saw a need for several hundred thousand U.S. troops in Iraq, his projections were belittled by Pentagon officials. Defense Secretary Donald Rumsfeld announced his retirement 15 months in advance. The public notice was humiliating to Shinseki and sent a chilling

From Presidential Wars to American Hegemony

45

message to other military and civilian leaders to keep their opinions to themselves, avoid independent thinking, and join (and stay on) the team.

Presidential Leadership In early 2003, as the United States prepared for war against Iraq, President Bush asked his senior commanders if they had sufficient forces. Condoleezza Rice, national security adviser, recalled: “I can’t tell you how many times he asked, ‘Do you have everything that you need?’ ”156 During a news conference on April 13, 2004, President Bush was asked if he would have to add more troops in Iraq. He responded: “Well, I—first of all, that’s up to General Abizaid, and he’s clearly indicating that he may want more troops. It’s coming up through the chain of command. If that’s what he wants, that’s what he gets. . . . I’m constantly asking him, does he have what he needs, whether it be in troop strength or in equipment.”157 During the planning stage, when Cheney, Wolfowitz, and other advisers predicted that Iraqis would treat American troops as liberators, not occupiers, it was Bush’s nondelegable responsibility to ask: “Suppose they do not view us as liberators? Suppose something goes wrong with our military actions, creating much more destruction than we intended? Iraqis might then regard us as occupiers, create an insurgency, and mount a strong guerrilla movement. Terrorists from Saudi Arabia, Egypt, and other countries might enter to lend their support to the insurgents. Do we have sufficient troops to make the country secure, prevent looting and violence, safeguard the existing Iraqi stockpiles of weapons in the country, and create a safe climate that will allow for reconstruction?” Only after those questions are asked can military leaders tell the president how many troops are needed. Presidential questions come first. To be an effective leader, the president cannot wait for military commanders to call him and suggest an increase in troop strength. The climate within the Bush administration discouraged military commanders from asking for more troops, even if they thought they needed them. The sacking of Shinseki sent a powerful message. Senior military officers acknowledge that they did not put constant pressure on Bush for more troops.158 After a while, they realized that repeated requests would be futile. Rumsfeld had decided on a minimal force level and no direction had come from the White House to change it. Former Army Secretary Thomas White offered this explanation: “If you grind away at the military guys long enough, they will finally say, ‘Screw it, I’ll do the best I can with what I have.’ The nature of Rumsfeld is that you just get tired of arguing with him.”159 The person politically responsible for the success of the Iraq war was not Rumsfeld, however. It was Bush. The executive branch prepared studies that attempted to predict what would happen if the United States invaded Iraq. The State Department’s Future of Iraq project produced thousands of pages of findings and analysis,

46

Louis Fisher

consisting of 13 volumes of recommendations and a one-volume summary and overview. Seventeen working groups studied what would be needed to rebuild Iraqi political and economic infrastructures. One report warned that toppling Saddam Hussein might create the opportunity for Iraqis “to engage in acts of killing, plunder and looting.”160 The Senate Foreign Relations Committee was advised by a group of experts that the difficulty for the United States would not be the initial military victory but what would come afterward.161 In other areas, Bush took the lead instead of waiting for a departmental official to request something. CIA’s lack of “human intelligence” has been known for years. Also obvious is the lack of agency officers proficient in Arabic. Bush could have waited for CIA Director Porter Goss to ask for more clandestine operators and more Arabic speakers. Instead, Bush on November 18, 2004, ordered Goss to increase the number of spies and Arabic speakers by 50 percent. CIA was already heading in that direction but Bush accelerated the process.162

Conclusions Various administrations, Democratic and Republican, will consciously lie and deceive if they think it is in their interest and can get away with it. Up to now the cost for the executive branch has been minimal. President Johnson seemed to pay a price for the Vietnam War, but it is unclear if that was because of his deceptions or the magnitudes of the casualties and expenditures. Had Vietnam turned out better the public might have forgiven him for the pattern of stealth and dishonesty. Writing in 1973, David Wise offered this assessment: “If political leaders come to realize, through mass opinion and election returns, that deceiving the public carries greater political risks than telling the truth, the politics of lying may gradually be replaced by the politics of truth.”163 Adding the qualifier “may” was prudent. There is little evidence that an administration that lies and deceives will automatically be punished by the public. The White House is too strong and disciplined and too adept at managing the news. Congress is currently weak and lacking in institutional confidence or purpose. The courts are too prone to avoid the merits of a case involving presidential war power by relying on such threshold tests as standing, ripeness, mootness, political questions, and prudential considerations.164 Without checks from Congress, the judiciary, the academic community, the media, and the public, presidents will be free to rule through unsubstantiated claims, vague but unsettling threats, and patently false statements. What we will have, and what we will deserve, is a nation less secure, individual rights more at risk, an executive branch prone to error and abuse, and a public distanced from its own government. Not an attractive picture, but if we allow government to deceive us, why deceive ourselves? John Jay told us long ago that the executive will engage in wars “not sanctified by justice or the voice and interests of his people.”

From Presidential Wars to American Hegemony

47

Notes Author’s note: The views expressed here are personal, not institutional. 1. After ordering military operations against Iraq, Bush reported to Congress: “Consistent with the War Powers Resolution (Public Law 93–148), I now inform you that pursuant to my authority as Commander in Chief and consistent with the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102–1) and the Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107–243), I directed U.S. Armed Forces, operating with other coalition forces, to commence combat operations on March 19, 2003, against Iraq.” Weekly Compilation of Presidential Documents, vol. 39, 348. Thus, he claimed authority wholly under the Constitution and merely acted “consistent with” three statutes. 2. Louis Fisher, Military Tribunals and Presidential Power: American Revolution to the War on Terrorism (Lawrence: University Press of Kansas, 2005). 3. The Papers of Thomas Jefferson, ed., Julian P. Boyd, vol. 15 (Princeton: Princeton University Press, 1958), 397. 4. These quotes and other references to the framers’ intent come from the first chapter of my book, Presidential War Power, 2nd ed. (Lawrence: University Press of Kansas, 2004). 5. Debates in the Several State Conventions, on the Adoption of the Federal Constitution, Jonathan Elliot, ed. vol. 2 (Philadelphia: J.B. Lippincott & Co., 1861), 528. 6. See William Michael Treanor, “Fame, the Founding, and the Power to Declare War,” Cornell Law Review 82 (1997): 695 7. Benjamin Fletcher Wright, ed., The Federalist (Cambridge, MA: Harvard University Press, 1961), 101. 8. Michael R. Beschloss, ed., Taking Charge: The Johnson White House Tapes, 1963–1964 (New York: Touchstone, 1998 edn.), 88, 95, 213–14, 370, 380. 9. H. R. McMaster, Dereliction of Duty: Lyndon Johnson, Robert McNamara, the Joint Chiefs of Staff and the Lies That Led to Vietnam (New York: HarperPerennial, 1998), 333–4. 10. Ibid., 330. 11. Gaillard Hunt, ed., The Writings of James Madison, vol. 6 (New York: G. P. Putnam’s, 1900–1910), 174. 12. Ibid., 312. 13. John C. Fitzpatrick ed., The Writings of George Washington, vol. 33 (Washington, DC: Government Printing Office, 1931–1944), 73. 14. Clarence Edwin Carter, ed., The Territorial Papers of the United States, vol. 4 (Washington, DC: National Archives and Records Service, General Services Administration, 1972), 389. 15. James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents, vol. 1 (New York: Bureau of National Literature, 1897–1925), 315. 16. Annals of Cong., 9th Cong., 1st Sess. (1805), 19. 17. Talbot v. Seeman, 5 U.S. 1, 28 (1801). 18. United States v. Smith, 27 Fed. Cas. 1192, 1230 (No. 16,342) (C.C.N.Y. 1806). 19. Fisher, Presidential War Power, 39–42. 20. The Prize Cases, 67 U.S. 635, 668 (1863). 21. Ibid., 660 (emphasis in the original). 22. Edward S. Corwin, “The President’s Power,” New Republic, January 29, 1951, 16.

48

Louis Fisher

23. The Public Papers of the Presidents of the United States: Harry S. Truman, 1950 (Washington, DC: Government Printing Office, 1961), 492. 24. 91st Cong. Rec. 8185 (1945). 25. 59 Stat. 621, sec. 6 (1945). For the legislative history of the UN Charter and the UN Participation Act, see Fisher, Presidential War Power, 81–95. 26. Department of State Bulletin, vol. 23 (Washington, DC: Office of Media Services, Bureau of Public Affairs, 1950), 46. 27. Dean Acheson, Present at the Creation (New York: W.W. Norton, 1969), 408. 28. Public Papers of the Presidents, 1950, 504. 29. Ibid. 30. Ibid., 520. 31. Ibid. 32. Weissman v. Metropolitan Life Ins. Co., 112 F. Supp. 420, 425 (S.D. Cal. 1953); Gagliomella v. Metropolitan Life Ins. Co., 122 F. Supp. 246 (D. Mass. 1954); Carius v. New York Life Insurance Co., 124 F. Supp. 388 (D. Ill. 1954); Western Reserve Life Ins. Co. v. Meadows, 261 S.W. 2nd 554 (Tex. 1953). 33. “Military Situation in the Far East” (Part 3), hearings before the Senate Committees on Armed Services and Foreign Relations, 82nd Cong., 1st Sess. (1951), 2014. 34. Cronin’s paper was placed in the Congressional Record in 1970, vol. 116, 34914–28. 35. Henry Steele Commager, “Presidential Power: The Issue Analyzed,” New York Times, January 14, 1951, 11. 36. Ibid., 24. 37. Arthur M. Schlesinger, Jr., “Presidential Powers: Taft Statement on Troops Opposed, Actions of Past Presidents Cited,” New York Times, January 9, 1951, 28. 38. Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin Co., 1973), 139. 39. Arthur M. Schlesinger, Jr. and Alfred de Grazia, Congress and the Presidency (Washington, DC: American Enterprise Institute, 1967), 27–8. 40. “Changing American Attitudes towards Foreign Policy,” hearings before the Senate Committee on Foreign Relations, 90th Cong., 1st Sess. (1967), 21. 41. “War Powers Legislation,” hearings before the Senate Committee on Foreign Relations, 92nd Cong., 1st Sess. (1971), 62. 42. Schlesinger, Jr., The Imperial Presidency, ix. 43. Richard E. Neustadt, Presidential Power (New York: Signet Book, 1964 paperback ed.), 23. 44. Ibid., 43. 45. Ibid., 45. 46. Ibid., 47. 47. Ibid., 42 (emphasis in the original). 48. Ibid., 157 (emphasis in the original). 49. Ibid. 50. Ibid., 170, 171, 182. 51. Neal Devins and Louis Fisher, “The Steel Seizure Case: One of a Kind?” Constitutional Commentary 19 (2000): 67–71. 52. Neustadt, Presidential Power, 166. 53. Ibid., 171. 54. Ibid., 172.

From Presidential Wars to American Hegemony 55. 56. 57. 58. 59. 60. 61. 62.

63. 64. 65.

66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85.

49

Ibid., 174. Ibid., 51, 66. Ibid., 186–7. Ibid., 197 (emphasis in the original). Ibid., 187–8. Ibid., 189. Fisher, Presidential War Power, 129–33. Richard E. Neustadt, Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan (New York: Free Press, 1990), x. Pages 3–163 reprint, without change, the 1960 edition of Presidential Power. Neustadt, 1990, xvi. Ibid., xvii. For example, Andrew J. Bacevich, American Empire (Cambridge: Harvard University Press, 2002); Anonymous, Imperial Hubris: Why the West Is Losing the War on Terrorism (Washington, DC: Brassey’s Inc., 2004); Chalmers Johnson, The Sorrows of Empire: Militarism, Secrecy, and the End of the Republic (New York: Metropolitan Books, 2004); Carl Boggs, Imperial Delusions: American Militarism and Endless War (Lanham, MD: Rowman & Littlefield, 2005). James Mann, Rise of the Vulcans: The History of Bush’s War Cabinet (New York: Viking, 2004), 190. Lawrence F. Kaplan and William Kristol, The War Over Iraq: Saddam’s Tyranny and America’s Mission (San Francisco: Encounter Books, 2003), 112. Ibid., 113. George H. Nash, The Conservative Intellectual Movement in America (Wilmington, DE: Intercollegiate Studies Institute, 1998), 75–87. Arthur M. Schlesinger, Jr., The Vital Center: The Politics of Freedom (New York: De Capo Press, 1988), xxii. Ibid., 10. Ibid., 15. Ibid., 147. Ibid., 20. Ibid., 256. Ibid., 11–34. Nash, The Conservative Intellectual Movement in America, 243. Ibid., 252–5. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953). Leo Strauss, “An Epilogue,” in Herbert J. Storing, ed., Essays on the Scientific Study of Politics (New York: Holt, Rinehart and Winston, 1962), 307. Herbert J. Storing, “The Achievement of Leo Strauss,” National Review, December 7, 1973, 1348–9. Shadia B. Drury, Leo Strauss and the American Right (New York: St. Martin’s Press, 1999), 2–17. Ibid., 12. Ibid., 14. Ibid., 97–136. For a collection of essays by Straussians, see Kenneth L. Deutsch and John A. Murley, eds., Leo Strauss, the Straussians, and the American Regime (Lanham, MD: Rowman & Littlefield, 1999).

50

Louis Fisher

86. Anne Norton, Leo Strauss and the Politics of American Empire (New Haven: Yale University Press, 2004), 6–18; John Micklethwait and Adrian Wooldridge, The Right Nation: Conservative Power in America (New York: Penguin Press, 2004), 200–7; Mann, Rise of the Vulcans, 22–9; Elizabeth Drew, “The Neocons in Power,” New York Review of Books, June 12, 2003, 20–2. 87. Bernard Susser, “Leo Strauss: the Ancient as Modern,” Political Studies 36 (1988): 499. 88. Leo Strauss, Thoughts on Machiavelli (Glencoe, IL: Free Press, 1958), 9, 12, 13. He calls Machiavelli “an evil man,” “immoral and irreligious,” “diabolical,” and “a devil.” 89. Susser, “Leo Strauss,” 498, 512, 514. 90. Hwa Yol Jung, “Leo Strauss’s Conception of Political Philosophy: A Critique,” Review of Politics 29 (1967): 492. 91. John Ehrman, The Rise of Neoconservatism: Intellectuals and Foreign Affairs, 1945–1994 (New Haven: Yale University Press, 1995), 190. 92. Gary Dorrien, The Neoconservative Mind: Politics, Culture, and the War of Ideology (Philadelphia: Temple University Press, 1993), ix. 93. Allan Bloom, The Closing of the American Mind (New York: Simon & Schuster, 1987), 67. See also pages 25ff, 34, and 141ff. 94. See two recent books by Tariq Ali: The Clash of Fundamentalisms: Crusades, Jihads and Modernity (London: Verso, 2003), and Bush in Babylon: The Recolonisation of Iraq (London: Verso, 2003). 95. Ehrman, The Rise of Neoconservatism, 1–62, 97–9. 96. Ibid., 161–3. 97. Joshua Muravchik, Exporting Democracy: Fulfilling America’s Destiny (Washington, DC: AEI Press, 1992 ed.). 98. Norman Podhoretz, “Making the World Safe for Communism,” Commentary, April 1976, 35. 99. L. Gordon Crovitz, “How Ronald Reagan Weakened the Presidency,” Commentary, September 1988, 25. 100. See L. Gordon Crovitz and Jeremy A. Rabkin, eds., The Fettered Presidency: Legal Constraints on the Executive Branch (Washington, DC: American Enterprise Institute for Public Policy Research, 1989); Terry Eastland, Energy in the Executive: The Case for the Strong Presidency (New York: Free Press, 1992). 101. “The American Congress,” The Public Interest 100, Summer 1990; Gordon S. Jones and John A. Marini, eds., The Imperial Congress (New York: Pharos Books, 1988). 102. Joseph M. Bessette, The Mild Voice of Reason: Deliberative Democracy and American National Government (Chicago: University Press of Chicago, 1994). 103. Friedrich A. von Hayek, The Road to Serfdom (Chicago, IL: University of Chicago Press, 1994), 69–79. 104. Friedrich. A. von Hayek, “Why I Am Not a Conservative,” in Frank S. Meyer, ed., What Is Conservatism? (New York: Holt, Rinehart and Winston, 1964), 88–103. For conservatives who wrote positively about Congress, see James Burnham, Congress and the American Tradition (Chicago: Henry Regnery Co., 1959) and Alfred de Grazia, ed., Congress: The First Branch of Government (Garden City, NY: Anchor Books, 1967). 105. Willmoore Kendall, “The Two Majorities,” Midwest Journal of Political Science 4 (1960): 317–45, The Conservative Affirmation (Chicago: Henry Regnery Co., 1963), 21–49.

From Presidential Wars to American Hegemony

51

106. Irving Kristol, Neoconservatism: The Autobiography of an Idea (Chicago: Elephant Paperbacks, 1999), 365. 107. Ibid., 132. 108. Ibid., 133. 109. Ibid., 365. 110. Irving Kristol, “The Future of American Jewry,” Commentary, August 1991, 24–5. 111. Irving Kristol, Reflections of a Neoconservative (New York: Basic Books, 1983), xiii. 112. Ibid. 113. Nash, The Conservative Intellectual Movement in America, 338. 114. Michael A. Ledeen, “A Republican Contract with the World,” Weekly Standard, May 13, 1996, 25; see Julie Kosterlitz, “The Neoconservative Moment,” National Journal, May 17, 2003, 1542. 115. Ehrman, The Rise of Neoconservatism, 59. 116. James Nuechterlein, “Neoconservatism & Irving Kristol,” Commentary, August 1984, 45. 117. Mann, Rise of the Vulcans, 208–15. 118. Just as there are many kinds of Straussians so is there a range of views among neocons, but even conservatives who object to generalizations about neocons (e.g., the neocons have “taken over” American foreign policy) acknowledge that the foreign policy of the Bush administration after 9/11 “can accurately be characterized as neoconservative, guided as it is by the idea that America should transform despotic polities into liberal democracies.” Ramesh Ponnuru, “Getting to the Bottom of This ‘Neo’ Nonsense,” National Review June 16, 2003, 29. 119. William Kristol and Robert Kagan, “Toward a Neo-Reaganite Foreign Policy,” Foreign Affairs 75 (1996): 18, 19. 120. Ibid., 20. 121. Kaplan and Kristol, The War Over Iraq, 112. 122. “A Clean Break: A New Strategy for Securing the Realm,” June 1996 report for the Institute for Advanced Strategic and Political Studies, Jerusalem; www. israeleconomy.org/strat1.htm.. Accessed October 1, 2004; Micklethwait and Wooldridge, The Right Nation, 204. 123. 112 Stat. 3181, § 8 (1998). 124. Micklethwait and Wooldridge, The Right Nation, 215. For a thoughtful and informed analysis of the belief that Jewish neocons provoked the Iraq War to help Israel, see Joshua Muravchik, “The Neoconservative Cabal,” Commentary, September 2003, 26–33. 125. Gershom Goremberg, The End of Days: Fundamentalism and the Struggle for the Temple Mount (New York: Oxford University Press, 2002 edn.), 5–6. 126. David Wurmser, Tyranny’s Ally: America’s Failure to Defeat Saddam Hussein (Washington, DC: AEI Press, 1999), 116. 127. Ibid., 117 128. Robert Kagan and William Kristol, eds., Present Dangers: Crisis and Opportunity in American Foreign and Defense Policy (San Francisco: Encounter Books, 2000), 6. 129. Ibid., 19. 130. Ibid., 17. 131. Project for the New American Century, “Rebuilding America’s Defense: Strategy, Forces and Resources for a New Century” (September 2000), ii.

52

Louis Fisher

132. The National Security Strategy of the United States of America, introductory remarks by President Bush (September 2002), 1. 133. Ibid. 134. Ibid., 3. 135. Nash, The Conservative Intellectual Movement in America, 162–3, 206, 291–2. 136. Kagan and Kristol, Present Dangers, 22. 137. Mark Lilla, “The Closing of the Straussian Mind,” New York Review of Books, November 4, 2004, 58. 138. Carnes Lord, The Modern Prince: What Leaders Need to Know Now (New Haven: Yale University Press, 2003), 5. 139. Kaplan and Kristol, The War Over Iraq, 98. 140. Francis Fukuyama, “The Neoconservative Moment,” The National Interest, Summer 2004, 60. For Krauthammer’s rebuttal, see “In Defense of Democratic Realism,” The National Interest (Fall 2004), 15–25. 141. Francis Fukuyama, State-Building: Governance and World Order in the 21st Century (Ithaca: Cornell University Press, 2004), 38–9. 142. Richard Lowry, “What Went Wrong?” National Review, October 25, 2004, 42. 143. Noah Feldman, What We Owe Iraq (Princeton: Princeton University Press, 2004), 19. 144. Eliot A. Cohen, Supreme Command: Soldiers, Statesmen, and Leadership in Wartime (New York: Free Press, 2002). 145. John P. Burke and Fred I. Greenstein, How Presidents Test Reality: Decisions on Vietnam, 1954 and 1965 (New York: Russell Sage Foundation, 1989). 146. Larry Bossidy and Ram Charan, Execution: The Discipline of Getting Things Done (New York: Crown Business, 2002), 22, 67. 147. Ibid., 67. 148. Ibid., 23. 149. Ibid., 82. 150. Ibid., 102. 151. Ibid., 103. 152. Ibid. 153. Ibid., 104. 154. Ibid., 236. 155. Ibid., 269. 156. Michael R. Gordon, “The Strategy to Secure Iraq Did Not Foresee a 2nd War,” New York Times, October 19, 2004, A10. 157. Weekly Compilation of Presidential Documents, vol. 40 (2004), 583. 158. Gordon, “The Strategy to Secure Iraq Did Not Foresee a 2nd War,” A10. 159. Ibid., A11. 160. James Fallows, “Blind Into Baghdad,” The Atlantic Monthly, January/February 2004, 58. 161. Ibid., 60. See also Thomas E. Ricks, “Army Historian Cites Lack of Postwar Plan,” Washington Post, December 25, 2004, A1. 162. Walter Pincus and Dana Priest, “Bush Orders the CIA to Hire More Spies,” Washington Post, November 24, 2004, A4. 163. David Wise, The Politics of Lying: Government Deception, Secrecy, and Power (New York: Random House, 1973), 346. 164. Louis Fisher, American Constitutional Law, 6th ed. (Durham: Carolina Academic Press, , 2005), 75–114, 288–9, 296–301.

Chapter Three Guarding the Parchment Barrier: The Attorney General and Presidential Power in Wartime Nancy V. Baker

Definitions of the attributes of democratic governance vary, but at the core of every definition is the idea that citizens are engaged in the decision-making process. As Arend Lijphart noted, a democracy is government by the people, or in modern nation-states, “indirectly through representatives whom they elect on a free and equal basis.”1 The people, to share in democratic decision-making, must have access to accurate information about pending policies and official actions. To express its will, the citizenry must be free to seek out information, and to peacefully assemble and organize to oppose government policies. Scholars have noted, “A democratic political system is largely defined by the relative liberty of citizens to criticize existing distributions of political power and institutional arrangements.”2 These features of democracy are captured in Robert Dahl’s classic formulation of the guarantees necessary to ensure a responsive government: the right to vote in free and fair elections and to run for public office, the freedom to speak and organize around political issues, access to information including from alternative sources, and mechanisms to ensure that governmental policies really do reflect popular preference.3 From the perspective of the American framers, however, democratic values by themselves, even when secured in a written Constitution, were not sufficient to ensure the new republic did not devolve into tyranny. In the end, the Constitution and Bill of Rights erected only a parchment barrier protecting liberty; law alone could not stop the centralization of power that—in Madison’s famous words—constituted “the very definition of tyranny.”4 The best safeguard of constitutional democracy would be institutional—to disperse authority between the branches and between state and federal governments. As Madison wrote in Federalist 48, “It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.” Quoting Jefferson, he argued that government authority should be “so divided

54

Nancy V. Baker

and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”5 American representative democracy, therefore, has come to mean free and fair elections, individual rights, particularly of speech and association, and access to information necessary to cast an informed ballot and thereby hold government accountable, all within the context of a system of separated and shared powers. Yet today, three of these attributes of U.S. democracy—access to information, free expression and association, and separation of powers—cannot be taken as givens. The federal government, particularly since the terrorist attacks of September 11, 2001, has increasingly centralized authority in the president of the United States, constructed a wall of secrecy around government operations, and chilled dissident speech. American democracy as defined in the founding documents appears to be in jeopardy. James Madison feared that the Constitution and Bill of Rights—as mere pieces of paper—would provide only a parchment barrier to block unconstitutional designs by either Congress or the White House. But if enforced by the courts and other political actors, those pieces of paper could provide an “impenetrable bulwark.”6 This chapter argues that the U.S. attorney general is well positioned to guard and enforce the parchment barrier delineating the limits of government power. Attorneys general are political appointees, and the doctrine of accountability requires that they faithfully serve their democratically elected chief executives. Yet, their ultimate fidelity is to the U.S. Constitution itself, an obligation captured in the oath of office taken by all federal government officials except the president: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion.”7 This obligation is heightened for attorneys general over other executive branch officers, because they are charged with legal and even quasi-judicial functions. How an attorney general understands his or her constitutional obligation—in terms of ensuring that the presidency does not transcend its “legal limits”— helps to determine the vitality of democratic government, even during wartime.

The Office of Attorney General From the start, the office of attorney general was charged with the special task of helping the president take care that the laws are faithfully executed. The Judiciary Act of 1789 assigned two tasks to the law officer: to represent the United States before the Supreme Court and to provide legal advice to the president and the executive departments when requested. Both of these roles have since been delegated to subordinate officers: the Solicitor General

Guarding the Parchment Barrier

55

and the Office of Legal Counsel, respectively, while the attorney general increasingly has been absorbed in the duties of administering a huge bureaucracy. Yet these quasi-judicial duties ultimately rest with the attorney general. Through them, the attorney general advises the president on the scope of White House power and defends those claims before the federal courts. The attorney general’s advisory and advocacy roles are crucial for securing presidential compliance with the democratic rules of the game. Constitutional and statutory laws are an important source of legitimacy for presidents seeking to claim unilateral authority to act.8 As chief law officer of the nation, the attorney general is well positioned to use those legal sources to defend presidential claims outside of the executive branch, and to caution against presidential over-reaching within the executive branch. In contrast, the White House Counsel, by being closer to the president, is not as well situated to either task. The general public, as well as members of Congress, may be inclined to distrust the disinterest of the counsel’s advice; further, the counsel may be more hesitant to proffer unfriendly advice to the president, since his or her tenure depends on presidential favor. The difference between the counsel’s advisory role and that of the attorney general was part of the debate over the Senate confirmation of Alberto Gonzales to be attorney general. Nor do the federal courts acting alone provide adequate enforcement of the parchment barriers. While the framers may have intended that an independent judiciary play this role, the reality is that courts tend to be constrained in three ways. First, they are wary of accepting cases that raise “political questions,” including ones involving executive power claims. The Supreme Court, for example, eschewed cases challenging the constitutionality of the Vietnam War9 and the constitutionality of President Carter’s unilateral termination of a defense treaty with Taiwan.10 Second, the courts tend to be deferential to the executive branch during wartime. Examples of this can be found in the Supreme Court’s deference to executive claims during World War II regarding the internment of Japanese Americans11 and the military trial of the eight Nazi saboteurs. As Louis Fisher argued regarding the latter, “So long as Justices marched to the beat of war drums, the Court ‘remained an unreliable guardian of the Bill of Rights.’ ”12 Third, the courts are not well designed to respond to quickly developing events. Constitutional scholars Epstein and Walker explain, “Because it must wait for an appropriate case to be filed before it can act, and because of its slow, deliberative procedures, the judicial branch is least capable of taking the leading role in matters of war and national emergency.”13 While also subject to substantial pressures to defer to presidential wishes, the attorney general does have resources at his or her disposal to play the role of constitutional guardian. The law officer occupies a unique position in the executive branch to speak authoritatively on the law. The opportunity arises because legal language—whether constitutional, statutory and international—is not specific and self-executing. It is the attorney general’s office that interprets the law within the executive branch and frames the

56

Nancy V. Baker

government’s position before the Supreme Court. Finally, the attorney general’s pronouncements carry weight, because legal language itself occupies such a privileged position in the United States, where rule of law and due process are extolled. The American founding documents in particular are revered, almost to the extent of becoming a “civil religion.”14 Therefore, by invoking the Constitution, the attorney general can tap into deep emotional reserves about the nation’s identity. But do attorneys general invoke the Constitution to restrain presidential power during a national crisis? A student of the history of the office must answer, rarely. More often than not, the chief law officer of the nation uses legal and constitutional language to buttress power claims vis-à-vis the other branches and to rationalize encroachments on democratic process. As Franklin Roosevelt’s attorney general, Robert Jackson defended the legality of the administration’s seizure of a North American Aviation Corporation plant in June 1941. However, when a similar industry seizure occurred in 1952—Harry Truman’s order that the Commerce secretary seize and operate the nation’s steel mills to avert a threatened strike during the Korean War—Jackson, now an associate justice on the U.S. Supreme Court, rejected those same arguments advanced by Truman’s solicitor general. Jackson wrote in his concurring opinion in Youngstown Sheet and Tube Co. v. Sawyer that “I do not regard [the 1941 case] as a precedent for this, but even if I did, I should not bind present judicial judgment by earlier partisan advocacy.”15 He noted, “I claimed everything, of course, like every other Attorney General does. It was a custom that did not leave the Department of Justice when I did.”16 Most attorneys general have followed his orientation to the office. Those who profess to follow a different path seldom do. For example, Francis Biddle, Roosevelt’s last attorney general, acknowledged that he had “a very special obligation to obey the law,” and yet he did little to restrain two significant constitutional violations that occurred on his watch: the internment of Japanese-Americans and the 1942 military trial of the eight German saboteurs. When he remonstrated with the president about the internment, for example, Biddle did not utilize the unique authority of his office to speak on the law. Instead, he advised the president that the program was “ill advised, unnecessary and unnecessarily cruel.”17 Roosevelt comfortably ignored that advice. In the case of the German saboteurs, Biddle raised no objections and even served as one of the prosecutors in the secret trial held on the fifth floor of the Justice Department. He advocated the same process when two more Germans were apprehended in the country in 1944, objecting to the secretary of war’s proposal for a regular court-martial, appointed not by the president but by the commanding officer of the appropriate military district. Far from being concerned with excessive executive power, Biddle “believed that in a court-martial the defense counsel would complicate the case by citing procedural protections in the Articles of War and the Manual for Courts-Martial” and “would require that the trial record go first to a board of review and then to the Judge Advocate General,

Guarding the Parchment Barrier

57

instead of directly to the President, as in 1942.”18 This time, Roosevelt sided with his secretary of war and opted for more regularized procedures. Yet some attorneys general have limited the scope of executive power. In 1841, Hugh Legare in John Tyler’s administration issued an Opinion of the Attorney General (OAG) advising against executive action that violated the country’s neutrality laws, as did Reverdy Johnson, Zachary Taylor’s law officer, in 1849.19 Abraham Lincoln’s attorney general, Edward Bates, initially advised the president that only Congress had the constitutional authority to suspend the writ of habeas corpus, although he later justified Lincoln’s actions.20 Chester Arthur’s scrupulous attorney general, Benjamin Brewster, regularly gave advice that restricted the president. Even politically active attorneys general on occasion issued OAGs that their presidents did not want to hear regarding executive authority, such as Philander Knox in 1901, Mitchell Palmer in 1920, Harry Daugherty in 1922 and 1923, and Homer Cummings in 1935 and 1936. A few similar examples can be found in OAGs issued after World War II, although this may stem from the fact that the Office of Legal Counsel has largely assumed the advisory role.21 Of note is that none of these examples occurred during wartime, although Palmer’s advice did come during a period of heightened national hysteria over the threat of radicals and anarchists that he helped to foment. Overall, few modern examples can be found of attorneys general standing up to presidential pressure to support actions contrary to their conceptions of the law. However, a brief case study of one law officer who did illustrates the role that an attorney general can play in checking presidential power even during war time. The next section reviews Attorney General Ramsey Clark’s success in protecting the right of dissent during the Vietnam War, despite the preferences of President Lyndon Baines Johnson. A review of key actions taken by Attorney General John Ashcroft in the George W. Bush administration follows, to help delineate Ashcroft’s role as chief advocate of a less encumbered presidency. Despite significant differences between 1968 and 2004, the political environment today does exhibit some important similarities with Johnson’s last year in office: a war abroad that is not going well and yet cannot be abandoned, and at home a citizenry fearful of the threat of violence—urban riots and political assassinations then, terrorism today. Then, as now, the White House sees political dissent as dividing the nation, aiding the enemy and endangering U.S. security interests. In both 1968 and 2004, the president and attorney general had served together four years and, while neither relationship can be described as close, a level of trust had developed. Both Clark and Ashcroft also represented important constituencies to their presidents, Clark on the political left and Ashcroft on the right. Arguably, because of these parallels, we can contrast Clark’s actions in the Johnson administration with Ashcroft’s under Bush. Such a study may provide insight into the possibility of an attorney general serving as a check on presidential power.

58

Nancy V. Baker

Ramsey Clark and Lyndon Johnson: Defending the Limits on Power Lyndon Johnson was a larger-than-life political figure, one with a reputation for getting his own way. Historian Robert Dallek called him brilliant and highly effective, a man of “uncommon ambition, capacity and energy,” but also overbearing, controlling, secretive, demanding deference.22 At times, according to Dallek, Johnson came close to clinical paranoia. “Plaguing Johnson was an irrational conviction that his domestic opponents were subversives or the dupes of subversives intent on undermining national institutions.”23 Arthur Schlesinger, Jr. characterized his term in office as “the Presidency Rampant,” due to Johnson’s Vietnam War decisions; he provided a classic example of Schlesinger’s imperial presidency thesis.24 This was not a chief executive noted for his self-restraint or tolerance of criticism. Yet, his attorney general, Ramsey Clark, the son of Johnson’s old Texas friend, former Associate Justice of the Supreme Court Tom Clark, was able to influence the president’s decisions regarding domestic dissent. For example, in 1967, following the destructive urban riots in Newark, New Jersey, and Detroit, President Johnson and some of his advisers—as well as vocal members of Congress—wanted Black Power activist Stokely Carmichael to be prosecuted for crossing state lines to foment unrest. Clark’s Justice Department “worked overtime” trying to build a case, but concluded that the evidence of a federal crime simply was not present.25 Clark was widely criticized for his decision not to prosecute. The attorney general said, “You can’t prosecute individuals just because the public wants you to. You have to have evidence and laws that would warrant prosecution, and we never had evidence that would support the prosecution under an interpretation of the law that was constitutionally valid.” According to Clark, Johnson was “outraged by Carmichael . . . I think he thought it would be very good for the country if we could stop that”;26 Clark explained the president’s views: I think he wondered, as most laymen in the country did, whether there wasn’t a conspiracy among people and whether violence wasn’t being fomented, and whether Carmichael and others weren’t violating the law. He admonished me on a good many occasions to really be very aggressive and study the thing, but he certainly never urged me to bring a case that I didn’t think was right.27

During an oral history interview conducted a year after he left office, Clark reflected on the case: My position was just a legal position. We didn’t have the facts that—as applied to the law—demonstrate guilt of any crime . . . . I would say that President Johnson’s tolerance of our enforcement policies was very remarkable. I’m not sure that we find anything in recent history that would show a greater

Guarding the Parchment Barrier

59

adherence to ordered liberty or to our principles, because it would have been very easy to strike out at Carmichael without a case. And it’s quite a tribute to the country perhaps that it would adhere to its principles of laws as it did, and to President Johnson. He was the man that really was under the pressure.28

A second example illustrating Clark’s successful assertion of constitutional principle was his insistence that the Poor People’s Campaign be permitted to come to the capital; in his view, the march fell within the scope of the First Amendment. The campaign—a march of about 3,000 poor people of all races on Washington, DC and the creation of a tent town called Resurrection City near the National Mall—was scheduled for late spring 1968, a difficult time for the administration. Johnson was facing frustrating news from Vietnam, struggling with Congress over a needed tax increase, worried about a growing budget deficit, distressed over the fate of his Great Society agenda, angry about stinging criticism from Robert Kennedy and the antiwar movement, and anxiously watching his public approval rating drop.29 From Johnson’s point of view, the march’s leader, Martin Luther King Jr., had undergone a radicalization in the previous year, when King broadened his activist agenda from civil rights to economic rights and the peace movement, a shift that reportedly stung the president.30 Further, the White House felt justified to be alarmed by the proposed march. The previous summer had been marred by violent riots in Newark and Detroit. FBI Director J. Edgar Hoover exacerbated the president’s fears by fostering the belief that the civil rights movement and King in particular were in league with communists, and that King intended to “lay siege to the seat of government.”31 Then, before the campaign was officially launched, King was assassinated and more violence erupted, including in parts of DC. This deepened the crisis atmosphere. The Southern Christian Leadership Conference continued with plans for the march. In Washington, the atmosphere was characterized by “paranoia, literally,” in the words of the attorney general.32 To President Johnson, “the prospect of a mass of the poor illegally camped out was the real nightmare, . . . [combining] all the elements for a disaster in a city as racially tense as the nation’s capital.”33 The president and attorney general disagreed over the Poor People’s Campaign, particularly the plans for a temporary encampment. Clark explained that the idea of the encampment appalled Johnson. “He loves Washington. It represents everything good that he believes in.”34 Sanitation alone would be a challenge, much less the potential that troublemakers would infiltrate the camp and trigger a tragic chain of violence. Adding to the worry, the federal officers with closest proximity to Resurrection City would be the Park Police, an all-white unit with some racist members.35 Even without violence, though, the ongoing presence of thousands of the poor demanding attention from the government could hurt Johnson politically, both with Congress and with a nervous public preoccupied by the Vietnam War and increasing inflation.

60

Nancy V. Baker

Ramsey Clark emerged as the most persuasive voice in the administration in favor of permitting the march. Clark interceded with Johnson, arguing that the poor had guaranteed rights of assembly and free speech; he added a pragmatic appeal that the denial of a legal march could trigger a lawless and disruptive one. The president—ignoring the strong disagreement of some in Congress and even the White House (a few top aides reportedly called the attorney general “Ramsey the Marshmallow” for being soft)—accepted Clark’s arguments.36 The marchers were permitted to come to DC, construct the tent town, and spend six weeks meeting with administration officials and the press in an effort to sway public policy. Clark and his subordinates at Justice worked closely with organizers throughout the process, to ensure its peaceful conclusion. In the end, other than an expansion of Food Stamps, the Poor People’s Campaign brought little programmatic change for the poor. Despite their frustration and the mounting tension within the Park Police and FBI, the Justice Department successfully oversaw the departure of most marchers, the peaceful arrest of a few hundred protestors who engaged in civil disobedience, and the nonviolent dismantling of Resurrection City.37 Clark’s influence as a legal adviser is evident more in the area of domestic dissent than elsewhere in the administration. As with the Poor People’s Campaign a year later, for example, he asserted the rights of expression and peaceful assembly when the administration considered barring a protest against the Vietnam War at the Pentagon in October 1967. Again, President Johnson opposed the march but acceded to his attorney general’s advice.38 On Vietnam policy itself, however, Clark’s legal advice was not sought. He was not part of the influential Tuesday Group, for example. On one occasion in early 1968, he was invited to discuss the bombing of North Vietnam. He advised that the bombing had to stop, “except where it was in the direct military engagement in a combat zone in South Vietnam and where it could be done without civilian involvement.” He noted that, following this highly restrictive advice, “I just wasn’t included in [the process] again.”39 At the end of the administration, Clark realized that Johnson was angry with him, in part due to his firm position on Stokely Carmichael and Resurrection City, both of which had been politically costly to the president. Yet, he believed he had provided the correct advice, and that the president had shown courage and principle in following it.40 The case study of Ramsey Clark illustrates that on particular legal questions, an attorney general can influence presidential behavior in a way that advances democratic governance and individual rights. This does not happen often. More common, as noted earlier, is the acquiescence of attorneys general to presidential demands for greater control. Yet, some attorneys general appear to go beyond mere acquiescence to themselves become architects of expanded executive power. The following review of the tenure of Attorney General Ashcroft examines the impact of this latter approach on key features of democratic governance.

Guarding the Parchment Barrier

61

John Ashcroft and George W. Bush: Defending Power Claims John Ashcroft came into office little focused on presidential power. The president and vice president early in the administration had lamented the loss of executive authority since Watergate, but Ashcroft himself, as a U.S. Senator, had exhibited no corresponding concern. As documented elsewhere, the terrorist attacks of September 11 transformed him, the Justice Department, and his conception of the presidency.41 He came to believe that a muscular presidency was essential to secure the nation against future attacks. The government had to be free to act; an obsessive concern with legal niceties would be imprudent at best. He explained his view that the nation was not just at war, but also at war with an enemy who uses the attributes of a free society as weapons: Terrorist operatives infiltrate our communities—plotting, planning and waiting to kill again. They enjoy the benefits of our free society even as they commit themselves to our destruction. They exploit our openness—not randomly or haphazardly—but by deliberate, premeditated design. . . . al Qaeda terrorists are told how to use America’s freedom as a weapon against us. They are instructed to use the benefits of a free press—newspapers, magazines and broadcasts—to stalk and kill their victims. They are instructed to exploit our judicial process for the success of their operations.42

Ashcroft’s responses to the domestic threat of terrorism can only be understood in light of his belief that civil liberties and divided power made the nation more vulnerable to terrorist exploitation. To mount an effective defense of the home front, the Justice Department had to minimize those vulnerabilities. The result has been policies that adversely affect three attributes of democratic governance—government transparency, protection of free expression, and respect for the restraints imposed by the system of separation of powers.

Government Transparency To be meaningful, government accountability requires citizen access to information about its operations. In contrast, Ashcroft’s policies have restricted the information available to the news media and general public. This in turn has constrained the ability of citizens to exert a check on government power. Since the September 11 terrorist attacks, the presumption in favor of secrecy has been difficult to refute, even when the information is not related to terrorism. “The rationale for not releasing anything is the national interest,” Ashcroft told congressmen asking about the Justice Department’s refusal to release a report on the Wen Ho Lee investigation.43

62

Nancy V. Baker

Attorney General Ashcroft moved aggressively to institute new policies and reinterpret existing law in order to limit congressional and public access to government information. His preference for secrecy is captured in the guidelines he issued in October 2001 to govern Freedom of Information Act (FOIA) requests for information. Incoming administrations commonly issue their own interpretations of FOIA, but Ashcroft’s guidelines reversed the previous attorney general’s policy that FOIA requests for nonclassified documents were honored unless release would cause a “foreseeable harm.” Instead, he admonished government officials that “any discretionary decision . . . to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial and personal privacy interests that could be implicated by disclosure of such information.” He added that the Justice Department would defend in court any decision to withhold records, unless the decision lacked “any sound legal basis or [presented] an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.”44 Ashcroft also supported the Homeland Security Act’s creation of an FOIA exemption for the new department, permitting it to withhold critical infrastructure information submitted by private entities. The measure, according to one scholar, “gives businesses that designate corporate information as ‘critical infrastructure information’ a free pass on public disclosure,” including businesses receiving Pentagon contracts for providing logistical support in the Iraq war.45 Because of this presumption in favor of secrecy, countless documents have been withheld from public interest organizations, the news media, citizens and even members of Congress. The head of the Associated Press, speaking at a Managing Editors Conference, told his journalism colleagues, “The essence of the FOI Act is that government information is open and accessible to the public unless there is a very good reason to keep it secret.” But with the new directive, he said, “Up went the barriers. Down came the official Internet sites and document databases. Gone were expedited FOI procedures for reporter requests to many agencies.” By the summer of 2003, he reported, “a government study determined that nearly a third of the federal officials whose duty is to comply with FOI requests reported they had succeeded in reducing the flow of information to the public. . . . Clearly, we’re in a time when the challenges to the public’s right to know are large and growing.”46 Other actions of the attorney general and his subordinates in Justice have made oversight of government actions more difficult. Ashcroft asserted a sweeping claim of confidentiality over the names, locations, and charges against the more than 1,200 foreign nationals detained in the months following the 9/11 attacks. The chief immigration judge, a Justice Department employee, ordered the closure of certain immigration trials and the sealing of those records on the assertion that the nation’s security and the security of ongoing investigations could be compromised.47 Ashcroft also refused to release information sought by the House Judiciary Committee on the

Guarding the Parchment Barrier

63

government’s implementation of the USA PATRIOT Act, particularly pertaining to Section 215 relating to searches of library records.48 In addition, in December 2001, Justice refused to release to the House Committee on Government Reform old prosecutorial documents relating to an FBI investigation 25 years ago. Congress has little enforcement authority, even when it issues a subpoena for information, if the executive branch refuses to comply. Steven Aftergood of the Federation of American Scientists, which operates a project critical of government secrecy, said the current administration “resists even the most mundane requests for information.”49

Tolerance for Dissent A critical element of democratic governance is the ability of citizens to organize and speak against government action. Not only is actual suppression of speech antidemocratic, so are those actions that create a chilling effect on speech, so that citizens engage in self-censorship. In this area, as in government secrecy, Ashcroft has not reigned in executive power, instead exercising broad authority to monitor and dissuade administration opponents. In a famous exchange with senators in December 2001, he made remarks that chilled administration critics: We need honest, reasoned debate; not fearmongering. . . . To those who scare peace-loving people with phantoms of lost liberty; my message is this: Your tactics only aid terrorists—for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies, and pause to America’s friends.50

On leaving office three years later, Ashcroft did not recant his controversial rhetoric. While he said his remarks often had been misinterpreted and were not intended to quash valid criticism, he reiterated, “I stand by my statement that people who [warn of phony lost liberties] divert us.”51 He did not clarify his criteria for categorizing criticism as phony as opposed to valid. One policy change in particular has fostered a chill on free association and speech. Ashcroft issued a directive in May 2002 that released the FBI from 30-year-old restrictions on its capacity to infiltrate and covertly report on domestic opposition group activity. The restrictions had been placed following public disclosure in the 1970s of the FBI’s Cointelpro program, which was used to harass political enemies of the FBI Director J. Edgar Hoover. Ashcroft called the old restrictions anachronistic in the age of the Internet and terrorism; in the wake of 9/11, he authorized the FBI to waive the guidelines “in extraordinary cases to prevent and investigate terrorism.” But agents did not use their new authority as often as Ashcroft expected. He then issued comprehensive revisions to lift the limits on FBI investigations of domestic groups and places, including religious institutions and Internet sites. The revisions, he said, were part of “a concerted effort to free the field

64

Nancy V. Baker

agents . . . from the bureaucratic, organizational and operational restrictions and structures that hindered them from doing their jobs effectively.” He empowered field agents to “enter public places and events open to other citizens . . . [and] to scour public sources for information,” as well as commercial data services, without first having to establish evidence of potential criminal activity. To remove what Ashcroft called “unnecessary procedural red tape,” greater discretionary authority was granted to special agents in charge of local FBI field offices.52 There would be no broad oversight by FBI headquarters of the new investigative authority over citizen activity. By late 2003, the FBI was using these guidelines to collect extensive data on groups opposed to the war in Iraq. FBI officials said they were looking for extremist elements and anarchists, not law-abiding protestors.53 The guidelines themselves make clear that law enforcement would not maintain “files on individuals solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of any other rights secured by the Constitution.”54 Even so, noted law professor Herman Schwartz, law-abiding opponents of the war could feel the impact. Schwartz said that intelligence collection at demonstrations is probably legal, but, “as a matter of principle, it has a very serious chilling effect on peaceful demonstration. . . . People don’t want their names and pictures in FBI files.”55 Other Justice Department actions have contributed to the concern of administration opponents that they should watch their words. For example, the FBI’s Joint Terrorism Task Force delivered subpoenas on February 7, 2004 to Drake University, the location of an antiwar forum the previous November that was sponsored by the local chapter of the National Lawyers’ Guild (NLG). The university was ordered to turn over documents relating to the forum and the local NLG chapter, including annual reports, leadership lists, and names of the 21 people attending a session on nonviolent protest. In addition, university employees were prohibited from talking about the government search. Four activists also were subpoenaed to appear before a federal grand jury. Forum participants and NLG officials said they worried that the investigation “was intended to silence and scare people who disagree with government positions.” Within days, the Iowa U.S. Attorney’s Office dropped the subpoenas in the face of mounting public concerns.56 Institutional Checks on Government Power: The American framers, for all of their fear of tyranny, did not want ineffectual government. They saw a system of separated and overlapping powers as a guarantee of greater government efficiency as well as a check on abusive government behavior.57 Separation of powers would serve both the need for nontyrannous governance and effective governance. This was not the view held by John Ashcroft, however. His thinking after 9/11 appears to have been that divided power is weakened power, a situation that the nation cannot afford during a crisis of this magnitude. However, he did not explicitly reject the doctrine of separation of powers. Instead, he and the White House defined the doctrine to mean that the other branches of government had no constitutional authority to intervene in core

Guarding the Parchment Barrier

65

executive decision making.58 He swept within the ambit of core executive powers many areas that had once been shared with the legislative and judicial branches. Ashcroft’s expansive theory of presidential power challenged the authority of both Congress and the courts to review—much less restrain—the president’s antiterrorism actions.59 His distrust of legislative checks on the executive is most evident in the area of congressional oversight. Even though Congress was largely under Republican control during his tenure, he resisted sharing information with congressional committees that had oversight responsibilities. He also resisted consultation with Congress that would have involved greater legislative oversight of the Justice Department policies. For example, when asked by a member of the House Judiciary Committee why he had not consulted with them on the department’s revised investigative guidelines, Ashcroft said he considered the guidelines to be an internal matter, not subject to congressional input. He explained, “I must say that we did not have extensive consultations about this exercise of executive authority to define the way in which the executive branch would conduct investigations.”60 On another occasion, he told senators that “Congress’ power of oversight is not without limits. The Constitution specifically delegates to the President the authority to ‘take care that the laws are faithfully executed.’ And perhaps most importantly, the Constitution vests the President with the extraordinary and sole authority as Commander-in-Chief to lead our nation in times of war.”61 The president, Ashcroft asserted, can unilaterally create military courts, an authority derived from “his responsibility as Commander-in-Chief of a nation in conflict,”62 as well as executive power over investigations and prosecutions. In Ashcroft’s view, congressional action was not needed.63 He also cited the war powers to buttress presidential power vis-à-vis the judiciary. “When a person is part of a war against the United States as a combatant against the United States, that person is subject to detention under the power of the president to protect the United States,” he told the House Judiciary Committee, adding “And the courts have not interfered with that in any significant way. And I don’t think courts will. I think there is—in that kind of time of peril, there is that responsibility and duty of the president.”64 He made this remark early in 2003. By late 2004, following several adverse court rulings, his anger at judicial restraints on executive action became apparent. In a speech before the Federalist Society, he accused federal judges of jeopardizing national security when their decisions overturned the president’s. Ashcroft warned, “Intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in time of war.” In a somewhat ironic use of the language of democratic governance, he added, “Courts are not equipped to execute the law. They are not accountable to the people.”65 In many specific ways, the attorney general supported efforts to minimize the judiciary’s role post 9/11. As noted, he defended the president’s military order that unilaterally authorized the creation of military tribunals,66 a measure that marginalized regular courts as well as Congress. Citing “an

66

Nancy V. Baker

extraordinary emergency,” the order replaced civilian courts with military commissions for cases involving noncitizens suspected of being or harboring either al Qaeda operatives or international terrorists, when it is “in the interest of the United States” to do so. Directly limiting the judiciary’s role, the order bars defendants from appealing their cases to civilian courts. It grants the president the authority to determine who would be subject to military trial and the authority to review the commission’s judgment.67 Under the order, military commissions were reserved for noncitizens, but the “enemy combatant” designation was applied to citizens as well; this designation, made solely by the president, was used to justify detaining Jose Padilla and Yaser Hamdi for more than two years without trial or access to counsel. Again referring to the commander in chief authority, Justice department attorneys asserted that the judicial branch should defer to the president’s judgment. The government’s brief for the Fourth Circuit in the case of Hamdi v. Rumsfeld argued, “Courts have an extremely narrow role in reviewing the adequacy of the government’s return in a habeas action, such as this, challenging the quintessentially military judgment to detain an individual as an enemy combatant in a time of war. . . . The Court may not second-guess the military’s enemy-combatant designation.”68 In June 2004, however, the Supreme Court restrained executive authority in both the Hamdi and Rasul v. Bush cases, ruling that enemy combatants had the right to challenge the factual basis of their classification in a court setting, with counsel permitted for this narrow purpose. Since military tribunals were not yet operating, U.S. District Courts could hear the habeas petitions to ensure that “the minimum requirements of due process were achieved.”69 Distrust of the judiciary is also clear in Justice efforts to circumvent court oversight of federal prisons. For example, following 9/11, the Bureau of Prisons in the Justice Department promulgated rules that permitted eavesdropping on conversations between attorneys and federal inmates for whom there is a “reasonable suspicion” of terrorism and violence. With no court review required, the determination of “reasonable suspicion” now rests solely with officials in the Justice Department.70 Similarly, federal appellate judges are now limited in their ability to review immigration decisions. Ashcroft sought to limit the scope of appeals available to immigrants, shorten deadlines for filing and ruling on appeals, and restrict appellate review to the lower court’s factual record, unless the record was “clearly erroneous.” He also sought to bar appellate courts from considering new evidence on behalf of immigrant defendants. Resistance to judicial oversight also may explain the failure of the Justice Department to comply in a timely manner with court rulings that strike down presidential claims. For example, almost four months after the June 2004 Supreme Court decision in Rasul that Guantanamo Bay detainees had a right to challenge their detentions,71 none had been able to do so. Only a few had been given access to counsel. Some of the tardiness can be explained by factors beyond the Justice Department’s control, but defense attorneys and constitutional scholars pointed out that, conventionally, habeas petitions

Guarding the Parchment Barrier

67

are resolved within 30 days. According to defense lawyers, “The government has broken a court-ordered Sept. 30 deadline to justify most of those detentions.”72 When a federal judge ordered the department to respond to these complaints, Justice filed a 96-page pleading asking the judge to dismiss the case.73 Almost eight months later, in late January, 545 detainees remained at Guantanamo, out of 558; only four of the prisoners had been formally charged to face military trials. Combatant status reviews, to ascertain if prisoners were correctly identified as “enemy combatants” instead of “prisoners of war,” were held by the military for 365 men; three prisoners were subsequently released. Eighteen closed hearings were held to determine if the prisoners still pose a threat. No military or civil trials had been held, pending the outcome of legal challenges to the constitutionality of military tribunals.74

Conclusion Nowhere are the competing needs of a robust presidency and democratic accountability more in tension than when there is a national emergency. Despite his indictment of the abuse of presidential power in the post–Cold War era, Arthur Schlesinger, Jr. did not advocate a “messenger-boy Presidency.” He wrote in The Imperial Presidency, “The problem is to devise means of reconciling a strong and purposeful Presidency with equally strong and purposeful forms of democratic control. Or, to put it succinctly, we need a strong Presidency—but a strong Presidency within the Constitution.”75 The formal legal fetters on presidential power are not irrelevant—much less dangerous—during war time. In fact, it is at such times that the greatest threats to democratic governance—secrecy, suppression of popular dissent, and the centralization of power—are most demanded by presidents and accepted as necessary by others. As Attorney General Ramsey Clark noted, “We tend to forget in times of crisis the requirements of the law. These are the very times their observation is most important.”76 Since the 9/11 attacks, increasing executive demands for greater power and secrecy has marked the American political system. In his four years as U.S. attorney general, John Ashcroft aggressively defended unilateral presidential power, regularly challenging the checks instituted by the framers to secure democratic governance. His rationale was that the checks unduly— and even unconstitutionally—limited the president’s scope of action and, by extension, the security of the nation. The tenure of Ramsey Clark offers a contrasting vision of how an attorney general can respond to the needs of a democratic polity even during a national crisis. The conclusion we can draw from the two attorneys general is that law officers can seek to restrain overreaching power claims by their chief executives, and that, on a few occasions, presidents have complied. But the lesson is also that attorneys general can just as easily use the legal powers of their office to advance presidential power beyond constitutional limits. In the end, reliance on the attorney general as a guardian of the Constitution’s parchment barrier is naive.

68

Nancy V. Baker

Perhaps we cannot fault presidents for seizing whatever power is available to them during a crisis. Schlesinger reasoned, “The nature of an activist President in any case . . . was to run with the ball until he was tackled. As conditions abroad and at home nourished the imperial presidency, tacklers had to be more than usually sturdy and intrepid.”77 His solution to the imperial presidency, which remains viable today, is to rely less on law and lawyers as effective constraints, than on politics. Part of politics is a public that demands accountability, and that requires “a new attitude on the part of the American people toward their Presidents, or rather a return to the more skeptical attitude of earlier times.”78

Notes 1. Arend Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries (New Haven: Yale University Press, 1984), 1. 2. Samuel Issacharoff, Pamela Karlan, and Richard Pildes, The Law of Democracy: Legal Structure of the Political Process (Westbury, NY: Foundation Press, 1998), 1. 3. Robert A. Dahl, Polyarchy: Participation and Opposition (New Haven: Yale University Press, 1971). 4. James Madison, “Federalist No. 47,” The Federalist Papers, Roy Fairfield, ed. (Baltimore: Johns Hopkins University Press, 1981), 139. 5. Madison, Federalist No. 48, 147–9. 6. Ira Glasser, “Visions of Liberty,” August 11, 1996, American Civil Liberties Union, available at archive.aclu.org/library/vision6.html. Accessed November 1, 2004. 7. Oath of Office, 5 USCS § 3331 (2005). Prior history September 6, 1966, P.L. 89–554, § 1, 80 Stat. 424. 8. Kenneth Mayer and Kevin Price, “Unilateral Presidential Powers: Significant Executive Orders, 1949–99,” Presidential Studies Quarterly 32 (2002): 380. 9. Massachusetts v. Laird, 400 U.S. 886 (1970). 10. Goldwater v. Carter, 444 U.S. 996 (1979). 11. Hirabayashi v. United States, 320 U.S. 81 (1943); Korematsu v. United States, 323 U.S. 214 (1944) 12. Quoted in Louis Fisher, Nazi Saboteurs on Trial: A Military Tribunal and American Law (Lawrence, KA: University Press of Kansas, 2003), 138. 13. Lee Epstein, and Thomas Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 5th ed. (Washington DC: CQ Press, 2004), 283. 14. Quoted in Martha Sawyer Allen and Graydon Royce, “Defining the Common Good,” Minneapolis Star-Tribune, February 9, 2002, 7B. See also Robert Bellah, “Religion and Legitimation in the American Republic,” Society 15 (1978): 16–23; and Brian Lowe, “Soviet and American Civil Religion: A Comparison,” Journal of Interdisciplinary Studies 13 (2001): 73. 15. 343. U.S. at 647 (1952). 16. Maeva Marcus, Truman and the Steel Seizure Case (New York: Columbia University Press, 1977), 172.

Guarding the Parchment Barrier

69

17. Francis Biddle, In Brief Authority (Garden City, NY: Doubleday, 1962), 205–26. 18. Fisher, Nazi Saboteurs on Trial, 141–2. 19. Nancy Baker, Conflicting Loyalties: Law & Politics in the Attorney General’s Office, 1789–1990 (Lawrence, KS: University Press of Kansas, 1992), 25–6. 20. Betty Houchin Winfield, “ ‘To Support and Defend the Constitution of the United States against All Enemies, Foreign and Domestic’: Four Types of Attorneys General and Wartime Stress,” Missouri Law Review 69 (2004): 1095–115. 21. Baker, Conflicting Loyalties, 25–6. 22. Robert Dallek, Flawed Giant: Lyndon Johnson and His Times 1961–1973 (New York: Oxford University Press, 1998), 185–6, 624. 23. Ibid, 627. 24. Arthur Schlesinger Jr., The Imperial Presidency (Boston: Houghton-Mifflin, 1973), Chap. 7. 25. Gerald McKnight, The Last Crusade: Martin Luther King Jr., the FBI and the Poor People’s Campaign (Boulder, CO: Westview Press, 1998), 93. 26. Harri Baker, Oral History Interview V with Ramsey Clark, June 3, 1969, Falls Church, Virginia, Lyndon Baines Johnson Library, University of Texas at Austin. 27. Harri Baker, Oral History Interview IV with Ramsey Clark, April 16, 1969, Falls Church, Virginia. 28. Baker, Oral History Interview V. 29. Dallek, Flawed Giant. 30. McKnight, The Last Crusade. 31. Ibid, 25. 32. Ibid, 85. 33. Ibid, 110. 34. Baker, Oral History Interview V. 35. McKnight, The Last Crusade. 36. Ibid. 37. Ibid. 38. Dallek, Flawed Giant, 487–9. Dallek points out that Clark, like Johnson, believed the antiwar movement included groups with communist affiliations and that the attorney general attempted to undermine the protest’s effectiveness. Even so, Clark advised against “affirmative action . . . to outlaw the demonstration,” such as an injunction. See Ramsey Clark, “Memorandum for the President, Re: October 21 Demonstration,” October 3, 1967; and Roger Wilkins, “Memorandum for the Attorney General,” October 5, 1967, both in Warren Christopher Papers Box 8, “Anti-Vietnam Demonstration, Oct. 21–22,” Lyndon Baines Johnson Library, University of Texas at Austin. As deputy attorney general, Warren Christopher issued a statement on October 20 reiterating the view of the Justice Department that “The right of peaceful assembly and the right of expression are central to our country’s freedom,” and for these reasons a permit was issued for the antiwar march and rally, but that “it is also a law abiding country. We will do whatever is necessary to maintain law and order.” WHCFNimetz Ofc.- Box 14, “Weekend of Oct. 21 (2 of 3),” LBJ Library. 39. Baker, Oral Interview V. 40. Ibid. 41. Nancy Baker, “The Impact of Antiterrorism Policies on Separation of Powers: Assessing John Ashcroft’s Role,” Presidential Studies Quarterly 32, no. 4, (December 2002): 765–78.

70

Nancy V. Baker

42. U.S. Senate, Committee on the Judiciary, “Hearings on Department of Justice Oversight: Preserving Our Freedoms While Defending Against Terrorism.” Witness: John Ashcroft, U.S. Attorney General. December 6, 2001. 107th Cong. 1st Sess, Federal News Service. 43. U.S. House, Committee on the Judiciary, “Hearings on the Justice Department and the USA Patriot Act.” Witness: John Ashcroft, U.S. attorney general, June 5, 2003, Federal News Service, 24. Wen Ho Lee, a weapons code scientist at Los Alamos National Laboratory, was indicted and detained for nine months in 1999 for stealing nuclear secrets for China, a charge that did not hold up after an inept federal investigation. See Dan Stober and Ian Hoffman, A Convenient Spy (New York: Simon & Schuster, 2001). 44. John Ashcroft, Memorandum for Heads of All Federal Departments and Agencies, “Subject: The Freedom of Information Act,” October 12, 2001, Department of Justice. Available at www.usdoj.gov/ 04foia/011012.htm. Accessed on January 15, 2005. 45. Winfield, “To Support and Defend the Constitution of the United States against All Enemies, Foreign and Domestic,” 1099. 46. Tom Curley, “AP President’s Speech before the Associated Press Managing Editors,” Hays Press-Enterprise Lecture Series, May 7, 2004. Available at www.apme.com/news/curley.shtml. Accessed on January 15, 2005. 47. Nancy Baker, “National Security versus Civil Liberties,” Presidential Studies Quarterly 33, no. 3 (September 2003): 547–67. 48. Adriel Bettelheim, “Changing Tone of Homeland Security Debate,” Congressional Quarterly, August 1, 2002, 2222; Jackie Koszczuk, “Ashcroft Drawing Criticism from Both Sides of the Aisle,” Congressional Quarterly, September 7, 2002, 2286. 49. Alan Elsner, “Bush Expands Government Secrecy, Arouses Critics,” Reuters, September 3, 2002. 50. U.S. Senate, “Hearings on Department of Justice Oversight,” 2001. 51. Dan Eggen, “Ashcroft Defends Tough Policies,” Washington Post, February 2, 2005, A02. 52. John Ashcroft, “Remarks of Attorney General John Ashcroft: Attorney General Guidelines,” May 30, 2002, Department of Justice, available at www.usdoj.gov/ag/speeches/2002/53002agpreparedremarks.htm. Accessed January 15, 2005. 53. Eric Lichtblau, “F.B.I. Scrutinizes Antiwar Rallies,” New York Times, November 23, 2003, A1. 54. John Ashcroft, “The Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations,” May 30, 2002, available at www.usdoj.gov/olp/generalcrimes2.pdf. Accessed on November 15, 2004. 55. Lichtblau, F.B.I. Scrutinizes Antiwar Rallies, A1. 56. Jeff Eckhoff and Mark Siebert, “Group Fights Anti-War Inquiry,” Des Moines Register, February 7, 2004, A1. Monica Davey, “Subpoenas on Antiwar Protest Are Dropped,” New York Times, February 11, 2004, A18. 57. Louis Fisher, Constitutional Conflicts between Congress and the President, 4th ed. (Lawrence, KS: University Press of Kansas, 1997); William Gwyn, The Meaning of the Separation of Powers (New Orleans: Tulane Studies in Political Science, 1964). For a discussion of the shared aspects of separation of powers, see Fisher, Constitutional Conflicts between Congress and the President; Gwyn, “The American Constitutional Tradition of Shared and Separated Powers: The Indeterminacy of the Separation of Powers in the Age of the Framers,” 30

Guarding the Parchment Barrier

58.

59. 60. 61. 62. 63.

64. 65.

66.

67. 68. 69. 70.

71. 72. 73. 74. 75. 76.

77. 78.

71

(1989) William & Mary Law Review, 263; and Laurence H. Tribe, American Constitutional Law, vol. 1, 3rd ed. (New York: Foundation Press, 2000). See, George W. Bush, Memorandum for the attorney general. Subject: Congressional subpoena for executive branch documents, White House Office of the Press Secretary, December 12, 2001. See Baker, “The Impact of Antiterrorism Policies,” pp. 765–8. U.S. House, “Hearings on the Justice Department and the USA Patriot Act,” 2003, 10. U.S. Senate, “Hearings on Department of Justice Oversight,” 2001, prepared remarks. U.S. Senate, “Hearings on Department of Justice Oversight,” 2001. Ashcroft was responding to questioning by Senator Edward Kennedy. Of note is that this broad reading of the commander in chief phrase is inconsistent with the actual constitutional language that the president is “the Commander in Chief of the Army and Navy of the United States,” not of the nation. According to Alexander Hamilton, this authority amounts to being “first General and admiral of the Confederacy.” Alexander Hamilton, “The Real Character of the Executive,” Federalist No. 69, March 14, 1788. Available at www.constitution.org/fed/federa69/htm. Accessed November 15, 2004. U.S. House, “Hearings on the Justice Department and the USA Patriot Act,” 2003, 30. John Ashcroft, “Prepared Remarks of Attorney General John Ashcroft, Federalist Society,” November 12, 2004. Available at www.usdoj.gov/ag/ speeches/2004/111204federalist.htm. Accessed November 15, 2004. Jim Oliphant, “Justice During Wartime: Order on Military Trials Final Piece of Sept. 11 Response,” Legal Times, November 19, 2001, 1. The office of White House Counsel Alberto Gonzales was the primary draftsman of the order. See Elisabeth Bumiller, “The Office Where Law Meets War,” New York Times, September 23, 2002, A22. Bush Military Order 2001 Brief. 2002, Hamdi, et al. v. Donald Rumsfeld, et al. Respondents-Appellants. U.S. Court of Appeals for the Fourth Circuit. No. 02–6895, 12. Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004); also see Rasul v. Bush, 124 S.Ct. 2686 (2004). U.S. Bureau of Prisons. 2001, “National Security; Prevention of Acts of Violence and Terrorism; Final Rule,” 28 CFR Parts 500 and 501, effective date October 31, 2001. 124. S. Ct. 2686 (2004). Carol Leonnig, “U.S. Stymies Detainee Access Despite Ruling, Lawyers Say,” Washington Post, October 14, 2004, A11. Ibid. Carol Leonnig, “Judge Rules Detainee Tribunals Illegal,” Washington Post, February 1, 2005, A1. Schlesinger, The Imperial Presidency (Italics in the original), x. Ramsey Clark, “Excerpts of an Address before the American Judicature Society,” Honolulu, Hawaii, August 9, 1967, Department of Justice Press Release, Papers of Ramsey Clark, Box 35, “D.C./Governors’ Conference— Midyear,” LBJ Library, University of Texas at Austin. Schlesinger, The Imperial Presidency, 409. Ibid., 410.

This page intentionally left blank

Chapter Four The Constitutional Checks and Balances that Neither Check Nor Balance Nancy Kassop

The genius of the constitutional system that Madison gave us was its fundamental reliance on the concept of checks and balances as the vehicle for guaranteeing limits on government power. Each branch would monitor or watch over the others to insure that no branch exceeded its authority or invaded another’s sphere. Such a system of governmental “insurance” depended upon each branch exercising its responsibility and vigilance at all times. Throughout history, examples abound of one renegade branch edging beyond its borders, only to be reined in by either one or both of the others. But what if the enforcing institutions do not perform this role, either inadvertently or intentionally? Are we at one of those historical junctures where the institutions of government are out of balance, and are in need of being reminded of the essential purpose of Madison’s structural design and allocation of authority? It is worth recalling that the institution of the presidency in its modern form is light years away from the expectations of the framers when they provided for it in Article II of the Constitution—with the caveat that they did expect that the ambiguous office their handiwork created would evolve and assume shape over time, through a variety of occupants and historical forces and events that could not be predicted in 1787. It is equally useful to note that, as with so much of the governmental structure authorized by the Constitution, the presidency was, also, a product of compromise and “best judgment” at the time, but that it was an entirely new and unique institution, and was, as such, an experiment. Its long-term success owes much to the dignity, force, and substance that George Washington brought to it in its initial form and as its first occupant. The presidency today is larger in size, more differentiated in structure, vastly more powerful, and far more varied in its activities than anyone in 1787 could have dreamt. There is no doubt that it has developed and expanded, beyond all expectations, just as the nation has grown and has become the dominant international player.

74

Nancy Kassop

It is common to discuss the Constitution in terms of powers and rights: powers, as they are allocated to the three branches and as they are interpreted, over time, to apply to the two levels of government; and rights, as they are extended to individuals by the Bill of Rights and in subsequent amendments. It is less common, except when circumstances intrude, to consider the Constitution, also, as a blueprint of responsibilities: and yet, neither governmental powers nor individual rights come without some measure of responsibility attached to their possession. Thus, there are constitutional expectations imposed on governmental institutions and on individuals. If either of these two entities fails to exercise the responsibility entrusted to them by the Constitution, the foundation of the system will be weakened, at least, temporarily, until one of these elements acts to, once again, return the system to some semblance of balance. It could well be a new balance, some newer adjustment of the powers and rights outlined in the Constitution, and one that acknowledges contemporary realities and circumstances and, most likely, a changed political environment. The key ingredient, however, is a general public acceptance of this new alignment, thus, imparting legitimacy to this revised arrangement, based on a recognition that this changed construction is still well within the original understanding laid down by the framers. Gauging “legitimacy” or “public acceptance” is an imprecise business, at best, and by this, I do not necessarily intend to reduce that to the results of public opinion polls. But somewhere between the rigid numbers of poll statistics and the soft definition by Justice Potter Stewart of “hard core” pornography—that is, “I know it when I see it”—there is surely a way to measure the public’s comfort with the functioning of its institutions of government at select points in time.1 Thus, this chapter turns its attention to the concept of responsibility as the touchstone for governmental institutions and the people to insure that fidelity to Madison’s vision of constitutional balance is maintained. It asserts that there is, in fact, a current set of circumstances in which one branch has leap-frogged over the other two, and in which the countervailing forces of Congress, the courts, and the people have been either (1) insufficiently diligent in exercising their responsibilities for assuring balance, or (2) are faced with considerable political pressure arrayed against them as to make any mounting official efforts to challenge this one-branch dominance nearly impossible and to make remote any likely chance of success in recalibrating the existing imbalance. Mostly, this is a tale of three branches: one, the executive, which has taken the lead in pushing beyond its boundaries, and the other two, the legislative and judicial, which have been remiss in their monitoring function. The telling of this tale begins in the latter part of the twentieth century: foreign policy occupies the greater part of this analysis, as this is the area that scholars have identified as the starting point for expanded presidential power, although increased executive power in foreign policy, ultimately, emboldened presidents to envision and attempt expansion of their domestic powers, as well.

Constitutional Checks and Balances

75

Thus, the question posed throughout this book is can the presidency be dangerous to democracy. The response is yes, if those entrusted to watch over that democracy neglect their part of the bargain. It is safe to say that, were he to look down upon us today from his celestial perch, Madison would not be smiling. Where do we begin? How and when did the branches allow control of their relative power relationship to veer off course? And what is the prescription for remedying the power imbalance? First, what are the mechanisms that Congress and the courts may use to “check” and “balance” a president who goes out of bounds? And, equally, how can “the people” express their collective opinion, if they are sufficiently perceptive to detect malfunctions in the system? To start, one way to consider relations among the three branches of government is that they constitute, as Louis Fisher describes it, a “constitutional dialogue.”2 One branch acts, and either one or both of the other two react, followed, perhaps, by a response by the initiating institution. This analogy of an ongoing conversation among the branches continues until all reach consensus on the specific matter. For example, the issue of how to insure racial equality engaged all three branches of the government before the matter was effectively settled. Beginning in 1896, the Court in Plessy v. Ferguson determined that separate but equal treatment of the races was sufficient to satisfy the Fourteenth Amendment’s guarantee of equal protection of the laws.3 Cracks in that policy began with President Truman’s 1948 executive order desegregating the armed forces, which then encouraged civil rights groups to bring constitutional challenges in the courts to the separate but equal policy as it applied to public education. This strategy was limited, at first to higher education only, and, then, ultimately, was extended to elementary and secondary education, spawning the Court’s historic Brown v. Board of Ed of Topeka, Kansas decision in 1954, where it ruled that “separate but equal” was no longer constitutional, overturning Plessy and substituting desegregation for separation of the races.4 Ten years later, Congress sealed the matter by adding its understanding of what the Fourteenth Amendment required in the larger sphere with passage of the Civil Rights Act of 1964, thus, effectively ending the debate over whether racial equality is required by the Constitution because the country, as a whole, had adopted a common understanding.

Checks by Congress Congress has some obvious political checks it can use to restrain a president, such as refusing to pass key legislative proposals urged by the chief executive, overriding a presidential veto, or denying funding for presidential priorities. Congress may also pass legislation to reverse an executive order or to overturn administrative rules and regulations. Other tactics are Senate refusal to ratify treaties or attaching conditions and reservations to them,

76

Nancy Kassop

and, similarly, Senate failure to confirm a president’s nominees for executive or judicial appointments (or, short of outright rejection, as we have just recently witnessed—Senate confirmation of Cabinet members, but not without the minority party first subjecting the president’s nominees to rigorous questioning that sends a message to those Cabinet nominees that, once safely installed in office, the opposition party will be watching them like a hawk).5 Upping the ante a bit is the practice of congressional oversight, both as a routine, ongoing activity to keep watch over executive branch agencies and departments, and, more pointedly, when claims of questionable executive branch conduct arise, where more specific congressional investigations may be warranted. Ultimately, if allegations against a president appear to rise to the level of “treason, bribery or other high crimes and misdemeanors,” the machinery of impeachment can be cranked up.6 This basic list of legislative checks against a president is, however, juxtaposed within an existing political context. Thus, in eras of divided government, it is reasonable, although not always correct, to presume a higher degree of contentiousness and confrontation between a president and Congress, while periods of unified party government presuppose fewer legislative checks and greater policy coordination and consensus. Even this rough generalization, to be more accurate, requires closer attention to the exact party make-up in each chamber of Congress (and even to the relative strength of specific “wings” of each party in each house) and to the internal rules of each house.

Checks by the Courts For their part, the federal courts have weapons, as well, although these are more subtle than and not always as visible as those of Congress. The courts can interpret Congress’s statutory delegations of power to a president narrowly so as to reduce the president’s range of action (as the Court did so notoriously to Franklin D. Roosevelt in the early 1930s in its interpretations of New Deal legislation that delegated power to the executive branch), and they can declare unconstitutional the acts of a president, rejecting his interpretation of the scope of his constitutional powers, as the Supreme Court did to Truman in 1952 in Youngstown and to Nixon in 1974 in the Watergate tapes case of U.S. v. Nixon and in the 1971 Pentagon Papers case of New York Times Co. v. U.S.7 The most significant legacy of those three cases was the Court’s emphatic conclusion that it would be the judge of the scope of the president’s powers in Youngstown and Nixon, and it would be the judge of what constituted an emergency in Youngstown and New York Times. So, the Court did exercise its responsibility and determine the limits of executive power, and it did rebuke sitting presidents for going beyond those boundaries. As we see shortly, though, the Court was not willing to even enter the debate over war powers during the Vietnam War. The contrast was striking, given that the membership of the Court was largely unchanged.

Constitutional Checks and Balances

77

And, further, do not underestimate the fact that a president can, in a sense, fight back when either Congress or the courts take actions that displease him. Presidents can use their veto power to register their disagreement with legislative proposals, and can wield their appointment power to nominate federal judges with the hope of trying to affect more favorably the outcome of future judicial decisions. The likelihood of success of either of these efforts, however, depends heavily on the political context in which presidents exert them. But the larger point is that this constant actionreaction chain of events is a clear manifestation of Madison’s handiwork and of Fisher’s “dialogue.” More generally, consider that within our separation of powers system, power among the branches exists within a finite, zero-sum equation: the more that power is concentrated in one branch, the less there is, correspondingly, in the other two. This reduction in power can occur either because of encroachment or invasion by the dominant branch, or because the diminished branches fail to protect their respective powers and put up insufficient or ineffective resistance, as their authority begins to slip away from them. How do these possible scenarios apply to current circumstances? In what ways have Congress and the courts neglected their constitutional responsibilities, and permitted the president to expand his power beyond acceptable limits?

Schlesinger and the Imperial Presidency Few books by scholars have rhetorically pitched the condition of the presidency as aptly as historian Arthur M. Schlesinger, Jr. did in his 1973 book, The Imperial Presidency.8 Schlesinger coined that term, which not only attracted the attention of scholars but also moved easily into the public lexicon. The political atmosphere of 1973 in which Schlesinger was writing was, undoubtedly, a tense and idiosyncratic one, with extraordinary political dynamics at that time that led to the only presidential resignation from office in the face of likely impeachment and removal. But Schlesinger’s analysis of the historical and institutional forces that led us to that point of excessive and, even, absolute, presidential power in 1973 still provides a useful place today to begin an examination of how we arrived at our current pattern of institutional relations. It is worth noting that one hears increasing references these days to a return of “the imperial presidency.”9 So, the concept is far from being out of fashion, and instead, is, perhaps, a rather accurate description of our current condition. Schlesinger traced the origins of “the imperial presidency” of the late 1960s and early 1970s back to the emergence of the U.S. as a world power in the last half of the twentieth century. He attributed the impetus for “the shift in the constitutional balance . . . that is, the appropriation by the presidency . . . of powers reserved by the Constitution and by long historical

78

Nancy Kassop

practice to Congress” to “the capture by the presidency of the most vital of national decisions, the decision to go to war.”10 He explained further that “the assumption of that power by the presidency was gradual and usually under the demand or pretext of emergency. It was as much a matter of congressional abdication as of presidential usurpation.”11 He wrote of the dwindling away of checks, both written and unwritten, that had kept the presidency under control. By the time of his writing, he stated unambiguously that “presidential primacy,” as envisioned by Hamilton as so necessary to give vigor to the political system, had turned into “presidential supremacy,” and, even more rhetorically, he charged that “the constitutional presidency” has become “the imperial presidency and threatens to be the revolutionary presidency.”12 Schlesinger’s explanation brought us up to 1973, as both Watergate and the Vietnam War continued to unfold. There was no larger constitutional question at that time than whether the coordinate branches would recognize their responsibility and would act to impose restraints on the presidency. In fact, Congress and the federal courts attempted to do just that, with varying degrees of success. A catalogue of some of the congressional responses to presidential overreaching during the Watergate/Vietnam period would include the following: – 113 roll call or teller votes between 1966 and July 1973 on resolutions to limit or conclude combat activities in Indochina, almost all of which failed to pass, with the exception of the 1971 Cooper-Church amendment to prohibit funding for the introduction of ground forces in Cambodia, a measure in June 1973 to prohibit funding for bombing in Indochina as of August 15th of that year, and the 1971 Mansfield Amendment calling for an end to US military operations in Indochina at the earliest practicable date. President Nixon effectively nullified this amendment when he announced at the signing ceremony for the law that “it is without binding force or effect” and was an unconstitutional restriction on his powers as commander-inchief.13 – passage of the War Powers Resolution in 1973, which intended to force the president to make “collective judgments” with Congress about when the US would use military force. Nixon vetoed this resolution, and every president since then has pronounced it unconstitutional and has followed a practice of acting “consistent with but not pursuant to” its provisions, rendering the law mostly useless and futile. (Note: This presidential practice of acting “consistent with but not pursuant to” the law has become standard operating procedure in a variety of other contexts, also, for some presidents, e.g., George W. Bush’s refusal to apply the actual provisions of the Geneva Conventions to the treatment of detainees while claiming that the United States would treat such prisoners “consistent with the principles of Geneva.”14 The point is that this offers presidents unlimited flexibility and discretion, while acknowledging that they are acting consistent with the “spirit” of the law, though without holding them to the “letter” of the law. Presidents may calculate that they can get political “cover” here, though it is quite clearly a smokescreen rather than a benign “cover.”)

Constitutional Checks and Balances

79

– passage of other legislation in the mid-1970s by which Congress tried to reassert the power it had let slip through its fingers, much of it in the foreign policy field, as presidents had increasingly encroached on those powers. These statutes generally fell into two categories: 1) those described as “framework” laws, which provided for congressional monitoring or oversight of executive actions by imposing procedural requirements on the president but laying down no substantive policy, or, alternatively, 2) those laws that laid down very clear policies, many as funding prohibitions on presidentially contemplated foreign policy actions. The first category of framework legislation would include the Case-Zablocki Act of 1972 (regulating executive agreements), the Hughes-Ryan Amendment of 1974 to the Foreign Assistance Act of 1964 (regulating covert operations), the National Emergencies Act of 1976 (ending long-obsolete emergency statutes that were still on the books, and instituting procedures for enacting future emergency statutes), and somewhat later, the Intelligence Oversight Act of 1980 (overseeing and regulating intelligence-gathering). The second category of specific policy restrictions includes the Clark Amendment in 1976 (prohibiting funding to rebels in Angola), and the series of Boland Amendments during the 1980s that curbed U.S. assistance to the contra rebels in Nicaragua. – On the domestic side, one could point to the Congressional Budget and Impoundment Control Act of 1974, and the Ethics in Government Act of 1978—two laws that reinforced Congress’s powers in budget-making and in watching over executive branch misconduct. – More spectacularly, in July 1974, the House of Representatives invoked the impeachment process for the first time in over a hundred years against a sitting president. That process ended before it had a chance to reach completion when Richard Nixon resigned the office of the presidency on August 9, 1974.

For their part, the federal courts found themselves faced with a number of lawsuits, sometimes brought by members of Congress, challenging executive branch excesses as unconstitutional invasions of congressional power. There were many efforts, all unsuccessful, to contest the constitutionality of the Vietnam War, but the courts slipped into their “political question” mode, declining to engage the issue on the merits. Some cases proceeded through the lower federal courts, but no case was decided on the merits in the U.S. Supreme Court.15 History is not bare, however, of courts in earlier times that were willing to decide difficult wartime issues. The abdication of the courts in the Vietnam era cases seems more the anomaly than the rule. The Supreme Court was not shy in deciding cases addressing issues of the respective war or war-related powers of Congress and the president during the early days of the nation (Little v. Barreme, Talbot v. Seeman, and Bas v. Tingy), or during the Civil War (The Prize Cases, Ex parte Milligan), or during World War II (Ex parte Quirin, Korematsu v. US), or during the Korean War (Youngstown Sheet and Tube Co. v. Sawyer). But the courts were unabashedly case-averse during the Vietnam War.16

80

Nancy Kassop

Thus, in the 1970s, there was a sharp contrast between what the Supreme Court was willing to do in domestic power cases and what it would not do in war powers and foreign policy related cases. It would not touch war powers cases, unlike its record in earlier times, but, conversely, it had no similar hesitation in deciding nonwar powers separation of powers cases, such as U.S. v. Nixon and New York Times v. U.S. during that same era. Can we say, then, that Congress and the courts acted responsibly to check and rein in an imperial presidency in the 1970s, and restored the constitutional balance? The quick answer to that is, as the evidence demonstrates, it is a mixed record. The legislative successes of that period have not been especially effective (and many have been either seriously undermined (e.g., War Powers Resolution) or even repealed (e.g., the independent counsel provisions in the Ethics in Government Act), although the 1974 impeachment proceedings in the House did have a decisive impact. The Supreme Court abdicated completely from the most searing constitutional debate of the era, the issue of whether the president had usurped Congress’s power to decide when the nation goes to war, while its consequential decisions in the Nixon and Pentagon Papers cases were somewhat idiosyncratic to the issues at that time (although further fleshing out of the contours of executive privilege beyond the Nixon tapes case has continued to this day, in the courts as well as in practice).17 But the more interesting inquiry is to look at our present configuration of institutional relations among the three branches to see if current references to “the imperial presidency” of that earlier time have any merit to them, and, if so, whether the other branches have undertaken their constitutional responsibility to monitor an aggressive executive in the twenty-first century.

Presidential Actions in the War on Terror— A New “Imperial Presidency”? Not surprisingly, the most intriguing, and perhaps, revealing, current subject area to explore—and to compare—is that of interbranch relations in the antiterrorism actions of the Bush administration. Unquestionably, President Bush’s pronouncement of a war on terrorism after the September 11 attacks constitutes the overriding paradigm of our time, and frames the context for policies adopted in its name, policies that, by their nature, implicate both foreign and domestic concerns. As those policies emerged, they engendered political controversy, as would be the case for any highly visible and strikingly distinctive approach to a new threat to our national security. But did they also provoke constitutional controversy, that is, did Congress and the courts examine these new policies to insure that they did not push the boundaries of constitutional authority beyond acceptable limits? Was there constitutional examination of broad-scale policy changes in a concededly altered national environment after September 11? Certainly, the new laws and executive actions spawned by the emergency nature of that period

Constitutional Checks and Balances

81

were of such a different magnitude as to warrant close scrutiny by the coordinate branches. Compared to any twentieth century foreign policy crisis— World War II, the Cold War, or Vietnam—policies associated with the war on terrorism deserve just as much oversight by Congress and the courts as any policies spurred by those earlier events received. Most of the actions requested by the president and taken by the national government in the wake of September 11 are not obscure. Some, such as the USA PATRIOT Act, were subjected to intense public debate, but this massive, 342-page bill still managed to pass through both houses of Congress with lightning speed in just six weeks after September 11 with the barest minimum of legislative oversight, and has yet to be wounded in the courts. The Authorization for the Use of Military Force in Afghanistan passed both houses of Congress within three days of the attacks on the World Trade Center and the Pentagon with only one dissenting vote in the entire national legislature. The Justice Department promulgated controversial new rules in the immediate aftermath of the attacks that provided for wide-scale detention of more than 1,200 people with suspected immigration violations or for being material witnesses to terrorism, and it authorized government monitoring of attorney-client conversations in certain circumstances. The president issued a new national security strategy in September 2002 that had as its centerpiece a policy of preemption. These actions were the first responses to the terrorist attacks from a frightened and newly insecure nation.18 In such times, any call for attention to what has sometimes been referred to disparagingly as “constitutional niceties” is quickly muted and pushed aside, as the country tries to grapple with all of the consequences of its changed condition. This is not an excuse, but it is an explanation for why it is so difficult to expect strict consideration of constitutional restraints during the initial stages of a crisis, close scrutiny that was certainly absent during those first days and weeks following the 2001attacks. But what about after those initial stages have passed, as the nation returns to some sort of “new normal?” This idea of recognizing that the immediate aftermath of a crisis may provoke harsh new laws but that as the country gains some distance from the triggering event, there may be reason to take a second look and to judge those laws with greater equanimity, was encapsulated in comments by Justice David Souter in the oral arguments in the Supreme Court in April 2004 in Hamdi v. Rumsfeld: “And it may very well be that the executive has power in the early exigencies of an emergency. But that at some point in the indefinite future, the other political branch has got to act if that . . . power is to continue.”19 All indications suggest that we are at that point right now, if not belatedly. Review of the Bush administration antiterrorism policies is coming not only from “the other political branch” but also from the federal courts, up to and including the Supreme Court. Within the past year, we have witnessed the percolating of challenges to those policies up through the judicial pipeline, a process that many understood would take a few years to run its course through the lower courts before arriving on the doorstep of the Supreme

82

Nancy Kassop

Court—but we are there now, with the first decisions handed down in June 2004, and others heading for the high court in the near future.20 Congress is starting to wake from its slumber, as it has used the confirmation process for Bush’s second term Cabinet appointments to the Justice Department and the State Department in January 2005 as venues for airing criticism of administration antiterrorism policies, some of which, surely, is political in nature, which other charges implicate serious legal and constitutional aspects.21 And, in a vivid illustration of Fisher’s “dialogue” analogy, oral arguments in the Supreme Court in the Hamdi, Padilla, and Rasul cases in spring of 2004 exposed Congress’ lack of responsibility in overseeing some of these extraordinary policies, and prodded it to act.22 There were repeated comments by the justices that Congress was fully competent to play a role in these matters. Those references sent an unambiguous message to Congress that it had been “missing in action” here, and that it was conspicuous in its absence.

“The President’s Sole Authority” The remaining part of this chapter discusses three current cases in the lower federal courts that are considering the constitutionality of the most highprofile of President Bush’s antiterrorism policies that he claims to have authority to establish. These are: (1) the provision for establishing military tribunals without any input or oversight by Congress; (2) the provision for capturing, designating, and detaining indefinitely foreign nationals as enemy combatants; and (3) the determination by executive branch officials that the Geneva Conventions do not apply to the detention or treatment of unlawful enemy combatants. The presidential scorecard in the lower courts so far is one win and two and a half losses: he lost on military tribunals and on the Geneva Conventions, and he split the outcome on enemy combatant status. But, ultimately, these cases will be decided by the Supreme Court—and, then, we will see if, in fact, a new imperial presidency runs head-long into judicial checks and balances.

Status of Foreign Nationals Captured, Designated as Enemy Combatants and Detained at Guantanamo Bay In June 2004, the Supreme Court ruled in Rasul v. Bush that the Guantanamo detainees had the right to contest the legality of their detention in federal court under 28 USC 2241(a)(c)(3), but it left for another day the details of “whether and what further proceedings may become necessary after respondents make their response to the merits of the petitioner’s

Constitutional Checks and Balances

83

claims.”23 It is the further implementation of that ruling that is addressed in the lower court cases of In re Guantanamo Detainee Cases and Khalid v. Bush argued in December 2004, and decided in two federal district court decisions in January 2005.24 Nine days after the Rasul ruling, the Department of Defense instituted Combatant Status Review Tribunals to hear challenges of the Guantanamo Bay detainees.25 These proceedings were the government’s response to the Court’s decision that it needed to provide an opportunity for detainees to contest their status, but within a month, the detainees and their lawyers filed a total of thirteen suits in federal district court, charging that these tribunals did not provide them a meaningful opportunity to challenge their detentions. Because of the multiplicity of suits and the relative similarity of the issues raised, the suits were consolidated and assigned to one judge in the U.S. District Court for the District of Columbia, Judge Joyce Hens Green. Separately, Judge Richard Leon determined that he would hear two of the suits.26 Thus, by the time the cases were heard at argument, ten cases were consolidated and heard by Judge Green, and two were heard by Judge Leon. This unusual set of circumstances set in motion an even more bizarre outcome, in that when decisions were handed down, the rulings of Judge Green and Judge Leon—two district court judges on the same court—were utterly conflicting and contradictory. In both cases, the detainees were captured by U.S. forces in locations outside of Afghanistan (e.g., Bosnia, Pakistan, Gambia, Zambia, and Thailand), and transported to Guantanamo Bay where they were detained as “enemy combatants,” under the provisions of a Military Order issued by President Bush on November 13, 2001.27 They were petitioning the court for writs of habeas corpus, challenging the lawfulness of their detention under the Constitution, federal laws, treaties, and international law. The government motioned the court to dismiss both the cases. Judge Leon granted the government’s motion to dismiss, while Judge Green denied it and held that the petitioners had some valid claims under the Constitution and under international treaties. Judge Leon’s January 19, 2005 opinion in Khalid v. Bush declared that there was “no viable legal theory . . . by which it (the court) could issue a writ of habeas corpus”28 He said that “the president’s ability to make the decisions necessary to effectively prosecute a congressionally authorized armed conflict must be interpreted expansively.”29 He found that the president’s authority to capture, designate, and detain indefinitely noncitizen enemy combatants was supported by (1) the Authorization for the Use of Military Force in Afghanistan, passed by Congress days after the September 11 attacks in 2001, extending to the president the power to “use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11th”30 (2) Supreme Court precedent in Ex parte Quirin,31 and (3) the president’s constitutional power from Article II as commander in chief. In short, Judge Leon concluded that detainees had

84

Nancy Kassop

no substantive rights (in other words, they had the right of access to the federal courts to file their cases, but no right to a decision on the merits, once they got to court). Judge Joyce Hens Green’s January 31 opinion in In re Guantanamo Detainee Cases arrived at a diametrically opposite conclusion regarding a similar and related, though not entirely identical, issue—in this case, the more specific one of whether those persons captured off the battlefields of Afghanistan have any constitutional rights by which to challenge their continued detention by the U.S. government when no formal charges have been lodged against them. Green ruled that such prisoners are entitled to the advice of lawyers and to confront the evidence against them by which the government determined that they were enemy combatants.32 Judge Green determined (1) that detainees had constitutional rights under the Fifth Amendment due process clause, and, further, (2) that those detainees who were Taliban fighters are also protected by the Geneva Convention that requires that where there is doubt as to whether prisoners taken during military conflicts satisfy the prerequisites for prisoner of war status, they should be treated as prisoners of war “until such time as their status has been determined by a competent tribunal.”33 Judge Green stated that “Nothing in the Convention itself . . . authorizes the president of the United States to rule by fiat that an entire group of fighters . . . falls outside of the Geneva Convention’s definitions of “prisoners of war.”34 Referring to the president’s determination on his own authority that no al Qaeda or Taliban detainees qualify for prisoner of war status, Judge Green continued, “the Third Geneva Convention does not permit the determination of prisoner of war status in such a conclusory fashion.”35 Some of the positions urged on the court by government attorneys in the oral argument before Judge Green were truly breathtaking. After acknowledging that a legitimate purpose for detaining combatants was to prevent them from returning to the battlefield, Judge Green then asked, “what and where is the battlefield the U.S. military is trying to detain prisoners from returning to? Africa? London?” the government attorney responded, “the conflict with Al Qaeda has a global reach.”36 When she asked how long hostilities might last and if that could be as long as there are Muslim fundamentalists who vow to attack the United States, the attorney replied, “That is a question for the president, not the courts.”37 This last answer appears prominently as a line of argument by the government throughout all of the legal challenges to its antiterrorism policies, in all of the government briefs in Padilla, Hamdi, and Rasul. For example, the government’s brief in Hamdi at the Fourth Circuit Court of Appeals level stated that: “courts have an extremely narrow role in reviewing the adequacy of the government’s return in a habeas action, such as this, challenging the quintessentially military judgment to detain an individual as an enemy combatant in a time of war. A court’s inquiry should come to an end once the military has shown in the return that it has determined that the detainee is an enemy combatant.”38 Its position is that the courts have a very

Constitutional Checks and Balances

85

minimal, if any, role to play here (and even that small concession was a grudging one), and that substantial deference is owed to the president when he operates under his commander in chief power.

Military Tribunals The president’s authority, on his own and without congressional participation, to establish military tribunals for a particular subset of enemy combatants is at issue in Hamdan v. Rumsfeld.39 This case confronts squarely the constitutionality of the president’s November 13, 2001 military order—the same order that is at the center of disputes over whether the president has authority to detain enemy combatants indefinitely without charge, without any chance to rebut the validity of the designation, and without access to counsel. That presidential order, issued eight weeks after the September 11 attacks, subjected to its provisions “any individual who is not a United States citizen with respect to whom I determine from time to time in writing that: (1) there is reason to believe that such individual, at the relevant times, (a) is or was a member of the organization known as al Qaida, (b) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy or economy . . . ..and (2) it is in the interest of the United States that such individual be subject to this order.”40 The order gives the Secretary of Defense the power to detain such individuals. It also provides that, “any individual subject to this order shall, when tried, be tried by military commission” and the Secretary of Defense is authorized to issue orders regulating the staffing and functioning of the military commissions. The basic significance of this military order is that it announces that the president has sole authority to designate individuals as enemy combatants, and that of those people so designated, the president also has sole authority to determine which ones will be tried by military commission. What is clear here is that trial by military commission is the only type of trial that enemy combatants may receive, and that those enemy combatants who are not tried by military commission remain indefinitely in detention in U.S. custody. Salim Ahmed Hamdan, captured in Afghanistan in late 2001 and detained at Guantanamo Bay, is one of those few individuals that President Bush, on July 3, 2003 designated for trial by military commission. Following the Supreme Court’s June 28, 2004 ruling in Rasul v. Bush that federal district courts have jurisdiction to hear habeas petitions filed by Guantanamo detainees, and, after the government had charged Hamdan with conspiracy to commit various war crimes, his lawyers filed a petition for habeas corpus. The petition was filed initially in the U.S. District Court for the Western District of Washington, but the case was transferred to the

86

Nancy Kassop

District of Columbia, when all of the Guantanamo Bay cases were consolidated, and it was docketed in the district court in DC on September 2, 2004. Hamdan further charged that the November 13, 2001military order establishing the tribunals was unconstitutional. The government motioned to dismiss the case, on the basis that the November 13, 2001 order was constitutional because the president has inherent authority from his role as commander in chief to establish military tribunals, and that Hamdan was not a prisoner-of-war under the Geneva Conventions (based on the administration’s legal interpretation that the Geneva Conventions did not apply to al Qaeda members) and, thus, was not entitled to a court-martial, and could, instead, be tried by military commission. On November 8, 2004, Judge James Robertson ruled in Hamdan v. Rumsfeld. The decision did not reach the larger constitutional question regarding the creation of military tribunals but he did note that earlier tribunals, such as the ones used during World War II in the Quirin case had been authorized by Congress, and had not been established solely on presidential authority.41 Ruling more narrowly on the most immediate claims before him, he found that the absence of any finding by a “competent tribunal” that Hamdan was not a prisoner-of-war, as the Geneva Conventions required, coupled with the fact that the procedures established for use by the military commissions in the president’s order are “contrary or inconsistent” with those applicable to courts-martial, meant that the military tribunals as currently constituted are unlawful and cannot continue. More specifically, he ruled that “(1) unless and until a competent tribunal determines that Hamdan is not entitled to POW status, he may be tried for the offenses with which he is charged only by court-martial under the Uniform Code of Military Justice; (2) that, unless and until the Military Commission’s rule permitting Hamdan’s exclusion from commission sessions and the withholding of evidence from him is amended so that it is consistent with and not contrary to UCMJ Article 39, Hamdan’s trial before the Military Commission would be unlawful; and (3) that Hamdan must be released from the pre-Commission detention wing of Camp Delta and returned to the general population of detainees.”42 In reaching his decision, Judge Robertson looked to the same Geneva Convention provision noted in Judge Green’s decision that required that all detainees be treated as prisoners of war until a competent tribunal determines otherwise. In Hamdan’s case, there had been no determination that he was not a prisoner-of-war, only a presidential designation that, under the November 13, 2001, he was a member of al Qaeda, in conjunction with the president’s decision that al Qaeda members were automatically excluded from prisoner-of-war status. Judge Robertson’s reaction to this designation was that “the President is not a ‘tribunal.’ ”43 Under Geneva, any prisoner who is determined by such a hearing to be a prisoner-of-war would be entitled to trial by court-martial with substantial procedural protections, and would not be tried before a military tribunal. Thus, since all detainees at Guantanamo are presumed automatically by the president’s blanket determination not to qualify for prisoner-of-war

Constitutional Checks and Balances

87

status, that automatic status via unilateral presidential action means that there is no opportunity to at least allow a prisoner to present evidence that he, in fact, does qualify for prisoner-of-war status and trial by courtmartial, rather than by the much harsher and less protective trial by military commission.

Conclusion These three cases wind in and out of each other, and address related issues that call into question the broadest possible claims of executive power. At the heart of these cases are conflicting positions about the scope of authority of governmental actions taken in the immediate days and weeks after September 11th. On the one hand is the question of the reach of the Authorization for the Use of Military Force, passed by Congress on September 14, 2001, authorizing the president to use “all necessary and appropriate force against those nations, organizations, or person he determines planned, authorized, committed or aided the terrorist attacks . . . or harbored such organizations or persons.” Judge Leon, as well as the Supreme Court in the Rasul and Hamdi cases, concluded that this action satisfied the need for congressional authorization to the president to do whatever was necessary to wage an effective war against terrorism. The argument was that if Congress authorized the president to engage in military hostilities, that authorization would logically permit a president to take actions short of war, including detention of prisoners, to fight terrorism. The greater power, in essence, embraced the lesser. But the alternative argument here is that the authorization to use force was just that—and nothing other than an authorization to use military force—and that authority to detain prisoners indefinitely and without rights needed to be enacted with specificity. That argument was then countered by government attorneys that the president’s power as commander in chief was more than sufficient and negated any need for further specificity or even any further authorization. The courts, then, are starting to apprehend the enormity of the exclusive powers the president has claimed. These lower court cases are the second round of post–9/11 policy cases, as the follow-up to the Supreme Court decisions of 2004. Eventually, the president’s 2001 military order will be under the judicial microscope, as that is the legal basis for all of the policies under legal challenge. But the courts are still “a work in progress,” far from any ultimate conclusion. Congress has acted either in the broadest of terms, as with the Authorization for the Use of Military Force, or, not at all, as in the matter of the designation and detention of prisoners as enemy combatants, without Geneva Convention protections, and subject to military tribunals. Congress has legislated absolutely nothing on any of these matters. There have been a few, unsuccessful attempts to enact laws that would provide for such

88

Nancy Kassop

actions, but all have failed to reach the floor of either chamber. For example, Adam Schiff (D-CA) introduced the Military Tribunals Act of 2003 in the House in March 2003, providing for the authorization of tribunals, but with clear restrictions and regulations that are absent in the president’s current order.44 The bill died in subcommittee, two months later. Thus, the scorecard for separation of powers and checks and balances in the current context seems to be that, in the four years since the September 11th attacks, Congress has been asleep at the wheel, either delegating overly broad and unclear power to the president or none at all, while the president simply filled in the vacuum, exhibiting no sense of hesitation that he perhaps might need the participation of Congress to assure the constitutionality of his actions. For Congress to reassert its own power, as the Congress of the 1970s did, in the face of overwhelming executive preemption on these issues, seems unlikely, and was made even more so by a strengthened Republican Congress since the 2004 elections. It would take a robust understanding of Congress’s traditional institutional role to prompt such action, and there seem to be few members with that necessary sense of “place” to move their colleagues to accomplish such a reassertion. This matter does not need to be a partisan one. Ironically, Republican members of Congress could aid their Republican president with legislation that authorizes similar though revised policies of military tribunals and detention. It is an altogether too obvious truism to state but one that bears repeating that presidents are on stronger footing when authorized by Congress than when acting alone. When presidents act in a policy field where Congress has power and where the Constitution is silent as to executive authority, there should be no doubt that the president is precluded from acting at all, until Congress authorizes him. That was the lesson of Youngstown. But the other lesson of Youngstown was that, in the words of Justice Robert Jackson, “We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.”45

Notes 1. That memorable phrase comes from Justice Potter Stewart’s concurrence in Jacobellis v. Ohio, 378 U.S. 184 (1964). 2. Louis Fisher, Constitutional Dialogues: Interpretation as Political Process (Princeton: Princeton University Press, 1988). 3. Plessy v. Ferguson, 163 U.S. 537 (1896). 4. See, for example, Sweatt v. Painter, 339 U.S. 629 (1950), McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950), and Brown v. Board of Education, 347 U.S. 483 (1954). 5. Senate confirmation of Attorney General Alberto Gonzales and Secretary of State Condoleezza Rice early in Bush’s second term are examples of this pattern of behavior. 6. Article II, Section 4.

Constitutional Checks and Balances

89

7. See, Schechter Corporation v. U.S., 295 U.S. 495 (1935) and Panama Refining v. Ryan, 293 U.S. 388 (1935); Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952); U.S. v. Nixon, 418 U.S. 683 (1974); New York Times Co. v. U.S., 403 U.S. 713 (1971). 8. Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973). 9. Former president Jimmy Carter remarked in January 2005 that he “worries about a new imperial presidency.” Quoted in Bob Woodward, “Cheney Upholds Power of the Presidency,” Washington Post, January 20, 2005, A7. See also, Linda Greenhouse, “The Imperial Presidency vs. The Imperial Judiciary,” New York Times, September 8, 2002, Section 4, 3. 10. Schlesinger, The Imperial Presidency, 10–11. 11. Ibid., 11. 12. Ibid., 10. 13. For an excellent account of these congressional efforts, see Richard M. Pious, The American Presidency (New York: Basic Books, 1979), 400–2. 14. See remark by White House Counsel Alberto Gonzales in Press Briefing by White House Counsel Judge Alberto Gonzales, DOD General Counsel William Haynes, DOD General Counsel Daniel Dell’Orto and Army Deputy Chief of Staff for Intelligence General Keith Alexander, available at www.whitehouse. gov/news/releases/2004/06/20040622-14.html. Accessed January 8, 2005. 15. These cases included, for example, Mora v. McNamara, 386 U.S. 934 (1967); Mitchell v. Laird, 488 F.2d 611 (D.C. Cir.1973); Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971); and Berk v. Laird, 429 F.2d 302 (2d Cir. 1970). 16. Little v. Barreme, 2 Cranch 170 (1804); Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801); Bas v. Tingy, 4 U.S. (4 Dall.) 36 (1800); The Prize Cases, 2 Black (67 U.S.) 635 (1863; Ex parte Milligan, 4 Wall. (71 U.S.) 2 (1866); Ex parte Quirin, 317 U.S. 1 (1942); Korematsu v. U.S. 323 U.S. 214 (1944); and Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952). 17. For further reading on executive privilege, see Mark Rozell, Executive Privilege: Presidential Power, Secrecy, and Accountability, rev. 2nd ed. (Lawrence, KS: University Press of Kansas, 2002). The federal courts considered variants of executive privilege during the Clinton administration in, for example, In re: Bruce Lindsey (Grand Jury Testimony), 158 F. 3d 1263 (D.C. Cir. 1998) on the issue of government attorney-client privilege. 18. For more information on each of these measures, see Nancy Kassop, “The War Power and Its Limits,” Presidential Studies Quarterly 33, no. 3 (September 2003): 509–30. 19. Oral argument transcript, Hamdi v. Rumsfeld, No. 03–6696, 34, available at www.supremecourtus.gov. Accessed January 10, 2005. 20. The Supreme Court decided the cases of Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004); Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004); and Rasul v. Bush, 124 S. Ct. 2686 (2004). Other cases currently in the lower federal courts either challenge additional aspects of the Bush antiterrorism policies (Hamdan v. Rumsfeld, No. 04–5393, U.S. District Court, District of Columbia, decided November 8, 2004, contesting the establishment of military tribunals on the order of the president) or are outgrowths of cases that were decided by the Court in June 2004, and are back in the lower courts, as the parties seek to implement those rulings and flesh out the details. See, Padilla v. Hanft, No. 2: 042221–26AJ, U.S. District Court, District of South Carolina, decided

90

21.

22. 23. 24.

25.

26.

27. 28. 29. 30. 31. 32. 33. 34. 35.

36.

37.

Nancy Kassop February 28, 2005, and brought in South Carolina, consistent with the Supreme Court ruling in Rumsfeld v. Padilla as to the proper jurisdiction; and In re Guantanamo Detainees Cases, 02-CV-0299 et al., U.S. District Court, District of Columbia, decided January 31, 2005, and Khalid v. Bush, CV No. 1:04–1142 and CV No. 1:04–1166, U.S. District Court, District of Columbia, decided January 19, 2005, addressing the issue of status hearings for foreign national detainees at Guantanamo Bay, following up on the Court’s decision in Rasul. See Senate confirmation hearings of Alberto Gonzales to be attorney general, before the Senate Judiciary Committee (available from Lexis-Nexis), and Condoleezza Rice to be secretary of state, before the Senate Foreign Relations Committee (available from Lexis-Nexis). Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004); Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004); and Rasul v. Bush, 124 S. Ct. 2686 (2004). Rasul v. Bush, 124 S. Ct. 2686 (2004). In re Guantanamo Detainees Cases, 02-CV10299 et al., U.S. District Court, District of Columbia, decided January 31, 2005, and Khalid v. Bush, CV No. 1:04–1142 and CV No. 1:04–1166, U.S. District Court, District of Columbia, decided January 19, 2005. Memorandum for the secretary of the navy, Subject: Order Establishing Combatant Status Review Tribunal, July 7, 2004, available at www.dod.gov/ releases/2004/nr20040707-0992.html. Accessed December 4, 2004. Vanessa Blum, “Guantanamo Detainee Cases Torn Between Two Judges,” Legal Times, November 30, 2004. Available at http://www.law.com/jsp/newswire article.jsp?id1101738474364. Accessed January 4, 2005. Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, 66 Fed. Reg. 57, 833 (November, 13, 2001). Khalid v. Bush, CV No. 1:04–1142 and CV No. 1:04–1166 (2004). Ibid. Authorization for the Use of Military Force, P.L.107–40 (September 18, 2001). 317 U.S. 1 (1942). In re Guantanamo Detainees Cases, 02-CV-0299 et al. (2005). Ibid. Ibid. Ibid. The administration’s legal position that the Geneva Conventions do not apply to al Qaeda or Taliban members is contained in a memo signed by the president on February 7, 2002, memorializing a decision he made on January 18, 2002. The issue engendered conflict between State Department lawyers, on the one side, and Defense Department and Justice Department (OLC) lawyers on the other. White House Counsel Alberto Gonzales resolved the conflict, and reported to the president in a memo on January 25, 2002. See list of and links to executive branch memos at http://news.findlaw.com/legalnews/us/terrorism/ index.html. January 7, 2005. See also http://lawofwar.org/Torture_ Memos_analysis. htm. January 7, 2005. See also Statement by White House Press Secretary on the Geneva Convention, May 7, 2003, available at www.whitehouse.gov/news/releases/2003/05/ 20030507-18.html. Michael J. Sniffen, “Government Asserts Broad Power to Detain Enemy Combatants at Guantanamo Bay,” Associated Press, December 12, 2004, available at http://www.law.com/jsp/article.jsp?id1101738491901. Accessed January 7, 2005. Ibid.

Constitutional Checks and Balances

91

38. Brief for Respondents-Appellants, 02–6895, Hamdi v. Rumsfeld, U.S. Court of Appeals for the Fourth Circuit, June 19, 2003, 10. 39. Hamdan v. Rumsfeld, No. 04–5393, U.S. District Court, District of Columbia, decided November 8, 2004. 40. Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, 66 Fed. Reg. 57, 833 (November 13, 2001). 41. Hamdan v. Rumsfeld, No. 04–5393, U.S. District Court, District of Columbia, decided November 8, 2004. 42. Ibid. 43. Ibid. 44. H.R. 1290 (2003). 45. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).

This page intentionally left blank

Chapter Five The Commander in Chief Power and Constitutional Invention in the Bush Administration Robert J. Spitzer

During the summer of 2004, a series of internal Bush administration memos and reports became public that detailed a variety of justifications for the administration’s detention, handling, and interrogation of various suspects and combatants captured in the war on terrorism and the war in Iraq. Most of these documents were authored or supervised by administration lawyers including White House Counsel Alberto Gonzales, William J. Haynes II, general counsel to the Department of Defense; David Addington, counsel to Vice President Dick Cheney, Assistant Attorney General Jay Bybee, head of the Department of Justice’s Office of Legal Counsel, and John Yoo, deputy assistant attorney general in the Office of Legal Counsel. The release of these documents prompted considerable criticism aimed at the Bush administration, focusing chiefly on arguments offered in these documents to justify the use of torture by the government. These revelations stood in stark contrast to longstanding American policy rejecting the use of torture. The position articulated by President George W. Bush in June 2003, for example, regarding the use of torture was this: “Freedom from Torture is an inalienable human right. . . . The United States is committed to the world-wide elimination of torture and we are leading this fight by example.”1 Within a year, however, the administration was reeling not only from release of documents seeking to justify torture, but from revelations of the use of torture by American forces in Afghanistan, at the American-controlled Guantanamo Base on the island of Cuba, and most vividly at the Abu Ghraib prison in Iraq, where videotapes and photographs of prisoners being subjected to a wide variety of “sadistic, blatant, and wanton criminal abuses”2 by American captors made worldwide news. In the aftermath of these revelations, most public attention was focused on the legal, military, strategic, political, and moral consequences of torture. Almost entirely overlooked in this important public debate, however, was

94

Robert J. Spitzer

one of the key legal props advanced in some of the Bush administration documents: the administration’s aggressive assertions regarding the scope and reach of presidential power—specifically, the commander in chief power. A digest of the Bush administration’s view of presidential power under the Constitution appears in at least two documents made public: a 50-page August 2002 memo signed by Assistant Attorney General Jay Bybee and sent to White House Counsel Alberto Gonzales;3 and an initially classified report prepared for Secretary of Defense Donald Rumsfeld, titled “Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations,” completed in April 2003.4 Buried in this report’s 87 pages of analysis is a five-page section on “Commander-in-Chief Authority.” It offers what is arguably the most sweeping claim to executive power ever penned by an administration. Since both documents make the same case and cite the same evidence, I confine myself to an analysis of the second, April 2003 Report.5 In summary, the section of the report dealing with presidential power makes two expansive claims: 1) that the president’s commander in chief (CIC) power is an ultimate and final authority, meaning that decisions made by the president pursuant to this authority are subject only to his final judgment, even asserting that the CIC power could allow the president to “render specific conduct, otherwise criminal, not unlawful”;6 and 2) actions taken by the president as CIC are unreviewable by, and beyond the reach of, the legislative and judicial branches. According to news reports, the memos were produced as the result of requests to use torture techniques that came from interrogators at Guantanamo, who were frustrated at their inability to obtain information from resistant prisoners.7 Yet, any government sanctioning of such techniques would have directly contradicted the 1994 International Convention against Torture, and the Torture Victims Protection Act passed by Congress, among other international and domestic acts. Thus, much of the text of the government memoranda and reports, including the two cited here, offered arguments as to why these legal enactments would not apply to sanctioned use of torture by American military or other personnel. In domestic law, the key sections are 18 U.S.C. sec. 2340 and 2340A, which criminalized the use of torture committed by Americans within or outside of America’s borders. In the succeeding sections of this chapter, I summarize the standard academic view regarding the definition and limits of the CIC power, examine in more detail the view of the CIC power advanced by Bush administration lawyers, and discuss the academic—as distinct from political—pedigree of the Bush administration view, focusing in particular on the role of publications appearing in law journals and reviews. In other publications, I have argued that law reviews and journals have been a uniquely fertile breeding ground for wayward constitutional theorizing. Also, I examine the distinctive traits of legal training, and the unique traits of these publications, in order to explain how they cultivate wayward constitutional theorizing.

Commander in Chief Power and Constitutional Invention

95

While political and institutional imperatives are the most important motivating factors standing behind the Bush administration’s aggressive reinterpretation of the CIC power, I argue that the law journal breeding ground, including the academic writings of one of the key administration players, has also played an unrecognized but important role.

The Constitutional Commander in Chief Unanimity is rare in any constitutional interpretation, and it is not to be found in the interpretation of the commander in chief power. Disagreement persists, for example, regarding the question of whether the commander in chief power makes the president merely the titular head of the military establishment, or extends to specific, operational decision making. Analysts also continue to disagree about the extent of the president’s discretionary powers in limited, undeclared military conflicts. There is, however, a high degree of consensus among scholars, including political scientists, historians, and legal writers, regarding this power’s constitutional genesis and construction. This understanding is first framed by an asymmetry underlying the separation of powers: that the legislative branch was to be the first, most important, and most powerful branch among the three. The three-branch system was emphatically not one of three coequal branches, but was to be legislative-centered.8 This principle applies to foreign as well as domestic powers.9 The commander in chief power that made its way into Article II dated to seventeenth century Britain, and was always understood to be a top military post placed under the command of a political superior, whether Parliament or monarch. James Madison’s view was typical of the Constitution’s authors: “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded.”10 The commander in chief power could never be divorced from one higher, final, civil authority: Congress. That is why the fulsome powers to declare war, issue letters of marque and reprisal, raise, regulate, and finance the military, regulate international commerce, and make all laws necessary and proper to carry out the preceding powers, were all vested in the national legislature. The very text of Article II, Section 2 confirms Congress’s final role: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states,” it begins, “when called into the actual Service of the United States.” As Louis Fisher has observed, “Congress, not the President, does the calling.”11 Congressional authority extended to imperfect or limited wars, as well as perfect or general wars. Presidents were understood to have the unilateral ability to use military force only to repel sudden attacks. Aside from this, however, Congress retained final and ultimate authority over warrelated decisions. And the president’s power as chief executive, mentioned in

96

Robert J. Spitzer

Section 1 of Article II, bore with it no military authority. Further, this relationship was the prevailing one in the nation’s first century. Only in the twentieth century, and especially since 1950, has the president’s war power been viewed in more expansive terms.12 Two early Supreme Court cases from 1800 and 1801 concluded that Congress could affect its control over war decisions either by formal declaration or statute. As Chief Justice John Marshall wrote in Talbot v. Seeman, “the whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides.”13 In 1804, the Court ruled that Congress-made law superseded a contrary presidential order pertaining to the military conduct of American naval vessels.14

The Bush Administration’s View of the Commander in Chief Power The 2003 “Working Group Report” presented to Defense Secretary Rumsfeld articulated a singularly broad and sweeping view of the CIC power. The evidentiary support for its executive power claims consists almost entirely of court cases. These power claims can be summarized as three sets of assertions, which I offer shortly. I then provide a detailed critique of these three in order. The primary evidence cited in the report (as in the earlier Office of Legal Counsel document) is built largely on selected quotes from court cases that misrepresent the actual expressions of the Court; contradictory conclusions from other cases are ignored, as is the vast secondary material that also reaches conclusions contrary to those of the administration. Bush’s Commander in Chief: The Report asserts that the president’s CIC power is for the president to exercise a) alone, and b) with finality, verdicts buttressed by reference to an 1874 Supreme Court case, Hamilton v. Dillin:15 “As the Supreme Court has recognized . . . the President enjoys complete discretion in the exercise of his Commander-in-Chief authority including in conducting operations against hostile forces.” Then, quoting from Hamilton, the report says that because “both ‘[t]he executive power and the command of the military and naval forces is vested in the President,’ the Supreme Court has unanimously stated that it is ‘the President alone who is constitutionally invested with the entire charge of hostile operations.’ ”16 Elsewhere in the report, it asserts that “Congress lacks authority under Article I 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.”17 To emphasize the inviolate and singular nature of the CIC power, the report asserts “the President’s constitutionally superior position [superior in relation to Congress] as Chief Executive and Commander-in-Chief in the area of military operations.”18 The report then asserts that “criminal statutes are not read as infringing on the President’s ultimate authority in these areas” because the Supreme

Commander in Chief Power and Constitutional Invention

97

Court has established “a canon of statutory construction” that says that laws should be interpreted in a way that “avoids constitutional difficulties so long as a reasonable alternative construction is available.”19 This “avoidance canon” is especially pertinent, the report asserts, in any instance when a statute might impinge on the constitutional powers of another branch of government. Therefore, since the CIC power is expressly granted in Article II to the president, the “avoidance canon” dictates that Congress not impinge on the president’s CIC authority. And when it comes to foreign affairs and the war power, where the president’s power is considered to be even greater than domestic affairs, this canon becomes even more pertinent, according to the report. Since Congress may not interfere with the CIC power through legislative enactment, 18 U.S.C. sec. 2340A, the prohibition against torture, “as well as any other potentially applicable statute must be construed as inapplicable to interrogations undertaken pursuant to his [the president’s] Commander-in-Chief authority . . . 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.”20 Similarly, subordinates within the executive branch who engaged in such interrogations pursuant to the president’s authority would also be exempt from prosecution arising from Congressmade law. The courts have concluded, according to the report, that presidential decisions under the CIC power are also beyond the reach of the courts themselves. Citing the Prize Cases21 from 1862, the report says that President Lincoln’s response to the Southern rebellion “was a question ‘to be decided by him’ and which the Court could not question, but must leave to ‘the political department of the Government to which this power was entrusted.’ ” (emphasis in the original)22 The report also cites as corroboration the courts’ traditional reluctance to interfere with executive decisions in military and national security matters. What Hamilton Says: The report’s heavy reliance on Hamilton v. Dillin obliges that it receive detailed attention here. A full reading of the case demonstrates that the report’s selective quotes from Hamilton are taken from it in a way that distorts and misrepresents the Court’s sentiment; moreover, a full reading of the case also contradicts the report’s assertions. Hamilton is an obscure case23 arising from the Civil War. Congress had granted President Lincoln the discretionary power to allow limited commerce with the Southern states during Civil War hostilities. Hamilton sued to recover fees he paid to ship cotton to the Union from Tennessee under this agreement, arguing that the fees imposed by the government were improperly levied. The Supreme Court disagreed, concluding that the fees were properly levied as part of the government’s war power. The report argues, as summarized, that Hamilton confers sole discretion on the president, and the President alone, in all matters relating to the conduct of military hostilities, exclusive of any control by Congress. Yet the phrases quoted from Hamilton by the report misrepresent the sentiment of

98

Robert J. Spitzer

the Court. Here is the full text: By the Constitution of the United States the power to declare war is confided to Congress. The executive power and the command of the military and naval forces is vested in the President. Whether, in the absence of Congressional action, the power of permitting partial intercourse with a public enemy may or may not be exercised by the President alone, who is constitutionally invested with the entire charge of hostile operations, it is not now necessary to decide, although it would seem that little doubt could be raised on the subject. In the case of Cross v. Harrison, it was held that the President, as commanderin-chief, had power to form a temporary civil government for California as a conquered country, and to impose duties on imports and tonnage for the support of the government and for aiding to sustain the burdens of the war, which were held valid until Congress saw fit to supersede them. . . . But without pursuing this inquiry, and whatever view may be taken as to the precise boundary between the legislative and executive powers in reference to the question under consideration, there is no doubt that a concurrence of both afford ample foundation for any regulations on the subject. (emphasis in the original)24

Without doubt, the Court recognizes the fulsome power of the president as CIC. The question is whether the report’s view goes beyond this to assert that the CIC power is final and beyond any control or regulation by Congress, once Congress has exercised its power to declare war or the equivalent.25 Yes, the president is “invested with the entire charge of hostile operations,” but the full text makes clear that Congress is by no means excluded from this process under the Hamilton decision. First, the Court considers the legality of presidential action in light of the fact that it occurred “in the absence of congressional action,” the obvious inference being that congressional action would have resolved the question immediately in favor of the disputed executive actions. This statement by itself is the Court’s express allegiance to Congress’s rightful and decisive power over executive actions. Second, the illustrative example cited by the Court of Cross v. Harrison is one of comparable presidential discretion, but subject to congressional intercession (“until Congress saw fit to supercede them”), should it choose to do so. Again, the Court is acknowledging here that presidential CIC decisions could indeed be subject to subsequent congressional control. Third, the Court concludes the paragraph by saying that, regardless of these particulars, the circumstances in Hamilton are best understood in the light of decisions of both Congress and the president, thus recognizing shared decision making. The Court is emphatically not saying in Hamilton, as the Report would have it, that the CIC power is unilateral and untouchable by the legislature. While Congress may grant the president, whether in law or in fact, wide latitude to prosecute a war or other military conflict that Congress has authorized or begun, Congress is hardly barred from subsequent legislative or other regulatory involvement, whether to constrain or expand the president’s actions as CIC. And as the courts have noted on many other occasions, the CIC’s actions stand on firmest footing when buttressed by legislative authorization.26

Commander in Chief Power and Constitutional Invention

99

Even more importantly, when the Hamilton case is examined as a whole, it is clear that the Court embraces a very different model of the CIC power from that espoused by the report. It is, first, a conventional shared power view, as seen for example in the Court’s repeated references to “the war power of the United States government.”27 Second, even though Hamilton’s suit was aimed at the Treasury Department, which levied and collected the disputed fees, the Court noted that Treasury’s actions, though a consequence of President Lincoln’s decisions, were ultimately the result of several prior acts of Congress. In fact, the Court began its analysis with this: “Our first inquiry, therefore, will be, whether the action of the executive was authorized, or, if not originally authorized, was confirmed by Congress.”28 That is, the Court’s first and most important question to resolve the matter before it (the legitimacy of the fees imposed by the executive branch) was whether Congress had authorized them either before or after the fact.29 This is important because Congress’s legislative enactments of 1861, 1863, and 1864 authorized the president to declare by proclamation a specific set of actions regarding what commercial trade could and could not occur between southern and northern states. It therefore represented the very kind of action that the report claims was barred by Hamilton: that is, the exercise of congressional authority over specific aspects of “hostile operations” against the South. If the president’s “entire charge of hostile operations” were beyond Congress’ control, then President Lincoln would not have needed approval from Congress for the actions, once Congress had recognized the existence of the state of hostilities between the North and South. Thus, both the facts and the conclusion of the Hamilton case contradict the report’s interpretation. Finally, the Hamilton court rests its decision in support of the government’s actions on the “concurrence of both” legislative and executive branches. This is surely the antithesis of the report’s unsubstantiated proposition that the CIC power is not only separate from, but also somehow superior to, legislative powers. I turn now to other evidence cited by the report in order to examine the veracity of the three sets of assertions that underlie the Bush administration’s document. As was true of Hamilton, the report misrepresents the conclusions of other court cases, and omits other key evidence. Other Cases: The Report also cites a few other cases in support of its view of the CIC power. It quotes the Department of Navy v. Egan, a 1988 case, as saying “unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.”30 Yet this cite undercuts the report’s premise because it expressly notes the Court’s approving nod to the existence of congressional authority to intrude (even though such intrusion might be “reluctant” on the part of Congress). Recognizing this, the report then casts aspersions on the prospect of congressional interference by referring to “the President’s constitutionally superior position as Chief Executive and Commander-in-Chief in the area of military operations”

100

Robert J. Spitzer

citing Department of Navy where it in turn cites a 1981 case, Haig v. Agee, which the report cites this way: “deference to Executive Branch is ‘especially’ appropriate ‘in the area of national security.’ ”31 This reference to deference to the executive as being especially appropriate is a far cry from an expression or endorsement by the Court of presidential “superiority” as either chief executive or CIC. Moreover, an examination of Haig reveals an approving discussion by the Court of foreign policy powers shared by “the political branches,” executive and legislative—again at odds with the report’s unilateralist view.32 Finally, the Haig case dealt with the revocation of a citizen’s passport, a diplomatic matter that, as Haig noted,33 Congress statutorily recognized as an executive power. The report’s second argument, as described above, posits a judicial “canon of statutory construction” that seeks to avoid circumstances in which one branch of government might impinge on another’s constitutional powers. Since the courts often note that executive power in foreign affairs is entitled to special deference (while also noting Congress’ right to regulate through legislation), Congress may not apply criminal statutes to actions implemented in connection with the President’s CIC power, argues the Report. Yet, early in the country’s history, the courts said otherwise. A federal circuit court in 1806 upheld the criminal prosecution of Colonel William Smith for military actions that he claimed were “begun, prepared, and set on foot with the knowledge and approbation of the executive department of our government.” Rejecting Smith’s claim that the president could authorize actions in contradiction to congressional enactments, the court said that, assuming the president had known about the actions, “it would not justify the defendant in a court of law, nor discharge him from the binding force of the act of congress.”34 Congress has long deferred to executive judgments in foreign and military policy, and that deference increased from the nineteenth to the twentieth centuries, as Congress yielded ever more discretion to the executive. None of this history means, however, that Congress may not regulate executive branch conduct, including war-related decisions.35 Congress’s foundational constitutional powers to declare war, organize, regulate, and finance the military provide Congress with every ability to apply criminal statutes to executive branch conduct in military or other matters. Indeed, Congress created the Uniform Code of Military Justice, the system of criminal law separate from the civilian criminal justice system that defines and punishes criminal activity within the military establishment, including allegations of torture.36 And throughout American history, Congress has regulated through legislation numerous aspects of executive authority during wartime, including activities carried out by presidents acting through CIC power.37 In 1942, the Supreme Court observed this about Congress’s ability to apply the legislative power to executive actions, even as CIC: The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all

Commander in Chief Power and Constitutional Invention

101

laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war.38

More recently, Congress has imposed specific statutory restrictions to constrain military actions and decisions taken or contemplated by the president as CIC in Vietnam, Angola, Nicaragua, Honduras, and Costa Rica.39 While Congress might be ill advised to micromanage operational or battlefield decisions, it does not somehow surrender its authority once hostilities have begun. In fact, Clinton Rossiter summarized court decisions pertaining to the commander in chief power as it relates to congressional authority in a very different way. In Rossiter’s view, “the Court has made it a practice never to approve a challenged presidential or military order solely on the authority of the commander-in-chief clause if it can find a more specific and less controversial basis.” The Court “will do everything in their power to avoid considering an unusual action in terms of the President’s power alone, and will seize with manifest relief on any evidence of congressional approval.”40 This was as true in 1951, the year Rossiter’s book was published, as it was in 2004, as the discussion of that year’s Hamdi case shows. The report’s third argument, as described, is that presidential decisions taken as CIC are beyond the reach of the courts, citing the Prize Cases, saying that Lincoln’s response to the Southern rebellion “was a question ‘to be decided by him’ and which the Court could not question, but must leave to ‘the political department of the Government to which this power was entrusted.’ ” (emphasis in the original)41 Is the Prize court actually saying that the courts may play no role in matters regarding the president’s exercise of the CIC power? Here is the full paragraph from the 1862 case. Whether the President in fulfilling his duties, as Commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. ‘He must determine what degree of force the crisis demands.’ The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case. (emphasis in the original)42

The Prize Cases arose because of a naval blockade thrown up around Southern ports after the outbreak of the Civil War, at the direction of President Lincoln, but without congressional authority (Congress later gave its authorization). The owners of ships seized by Union vessels sued for their return, arguing that the seizures resulted from orders that Lincoln did not have the power to give. The Court upheld the seizures, saying that the

102

Robert J. Spitzer

president was obligated to meet the emergency as it confronted the country. In the excerpt above, the Court accepts Lincoln’s argument that military action was necessary. A court is a court, not a phantom CIC. But the Court is not saying that CIC decisions are beyond its reach. Were that so, it should and would not have agreed to hear the case, or if to hear it, to say that Lincoln’s actions as CIC could not be reviewed by the Court on their merits. And the circumstances giving rise to the Prize Cases were those when, in the absence of congressional approval, the CIC power is greatest: responding to an attack on the United States.43 More importantly, the Court has ruled on the merits of the CIC power in other cases, including Little v. Barreme (1804), Ex Parte Quirin (1942), Korematsu v. U.S. (1944), and Youngstown Sheet and Tube v. Sawyer (1952).44 Most of these cases are not cited in the Report, a fact that yielded fierce criticisms from the legal community when the report was made public. Various legal writers called the research in the report “extreme, one-sided and poorly supported by the legal authority relied on,” “embarrassingly weak, just short of reckless,” and noting the failure to mention the keystone Youngstown case, “[i]t is not legitimate to produce a legal opinion that fails even to cite the most relevant landmark Supreme Court precedent.”45 In the recent case of Hamdi v. Rumsfeld (2004), the Court squarely confronted and rejected the Bush administration’s contentions that decisions made by and under the CIC power were unreviewable by the courts and beyond the reach of Congress. Although the report was written a year before Hamdi, its arguments were addressed by the Court in its decision. Regarding the role of Congress, the Bush administration argued before the Court that no authorization from Congress was required as a basis for the president’s actions, because his Article II powers were sufficient. Yet the administration evidently lacked confidence in this view, since it also argued that congressional action supported its actions. While the Court said that it chose not to rule on whether executive authority alone was sufficient to justify the president’s actions, it did choose to accept the administration’s “alternative position” that was predicated on interbranch authority: The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government’s alternative position, that Congress has in fact authorized Hamdi’s detention, through the AUMF [Authorization for Use of Military Force, enacted immediately after the 9/11 attacks].46

On the question of whether the courts had a right to intervene, Hamdi was more emphatic: While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and

Commander in Chief Power and Constitutional Invention

103

recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here.47

The Court then expressed displeasure with an executive-only justification for military action, evincing instead a clear preference for a shared powers view for the exercise of war-related authority, consistent with the view found in Hamilton, the Prize Cases, and twentieth century cases: [W]e necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. 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. Youngstown Sheet & Tube, 343 U.S., at 587, 96 L. Ed. 1153, 72 S. Ct. 863. 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. (emphasis in the original)48

Although Hamdi was a significant rebuke to Bush administration positions, it would be a mistake to view this case, or past Court rulings, as a defeat for strong executive authority in foreign policy or military matters. The repeated, almost slavish devotion to broad executive authority in foreign affairs found almost uniformly in court cases dealing with such matters grants the executive branch enormous leeway—far more than exists in domestic affairs.49 Nevertheless, extant court rulings on the subject reject the extremist view of unilateral executive control advanced by the Bush administration in the report.

A Political Document or a Legal One? Leaving aside the numerous problems with the research, arguments, and conclusions found in the “Working Group Report,” the document can be minimized, or even dismissed, for a number of seemingly plausible reasons. First, the document was the product of an internal, executive branch review intended to be kept confidential for a decade, suggesting a deliberate preference to keep the views expressed therein out of the public (and legal) debate. Second, the report can be viewed as lawyers’ mental gymnastics—an onpaper vetting of arguments and ideas to defend a policy position for the sake of examining the boundaries of an idea. The existence of the report in and of itself does not necessarily mean that it was, or would have become, Bush

104

Robert J. Spitzer

administration policy. This was, in fact, the public explanation for this and other memos made public in 2004 that justified the American use of torture. According to White House Counsel Alberto Gonzales, this and other memoranda were “unnecessary, over-broad discussions” that were “not relied upon” by the administration. “In reality, they do not reflect the policies that the administration ultimately adopted.”50 Yet the reasons in support of taking this and other, similar documents seriously are considerable. First, the fact that the report is a lawyer’s brief on behalf of the unilateral executive position, and not a balanced scholarly examination, does not render it irrelevant to policymaking—quite the contrary. If anything, the report’s one-sidedness reveals an administration that has already decided the direction in which it wishes to proceed. Second, the administration’s quoted repudiation of these positions does not actually disavow the views expressed. And when the administration reversed itself in December 2004 and publicly disavowed its previous permissive arguments on behalf of torture, it remained silent on its prior views related to CIC powers. Further, during his confirmation hearings before the U.S. Senate in January 2005, attorney general nominee Gonzales said, when asked if he believed that the president had the power to ignore a congressional ban on torture if he felt it to be unconstitutional, “I guess I would have to say that hypothetically that authority may exist.”51 Third, the positions set out in the report are consistent with the Bush administration’s “expansive view of presidential power,” seen particularly in its approach to national security matters, with White House Counsel Gonzales dubbed by the New York Times as Bush’s “architect of widening executive authority.”52 More specifically, the report’s views found their way into administration briefs before the courts (referenced, for example, in the quotes from the Hamdi case) as well as in other public and official pronouncements. For example, in testimony before the U.S. Senate Judiciary Committee in 2002, Deputy Assistant Attorney General John Yoo testified that the president’s chief executive power, along with his authority as commander in chief, “make clear that the president has the constitutional authority to introduce U.S. armed forces into hostilities when appropriate, with or without specific congressional authorization.”53 Another primary architect of presidential power expansionism is Vice President Dick Cheney, who has said that presidential power needs to be increased because of its alleged decline in recent years. According to Cheney, “I have repeatedly seen an erosion of the powers and ability of the president of the United States to do his job . . . .We are weaker today as an institution because of the unwise compromises that have been made over the last 30 to 35 years.”54 Cheney’s chief architect and point man for this view, David Addington, is a wellknown proponent of this “unitary executive” view that considers presidential power as both too little, and in need of expansion.55 The idea that presidential power has receded in the last three decades is at odds with most scholarly assessments of the institution,56 and met with widespread condemnation from the legal community, human rights groups, and even

Commander in Chief Power and Constitutional Invention

105

military lawyers.57 Even conservatives otherwise sympathetic to the Bush administration, like lawyer Bruce Fein, find fault with the administration view. Speaking of Addington and others in the administration, Fein said: “They’re in a time warp. If you look at the facts, presidential powers have never been higher.”58 In a speech before the Federalist Society in November 2004, Attorney General John Ashcroft fired a broadside directed at the courts for their decisions against Bush administration actions abroad, saying that “judicial activists” “threaten the president’s constitutional responsibility to defend American lives and liberties . . . . The danger I see here,” Ashcroft continued, “is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war.”59 In the face of the Court’s rebuke in Hamdi and other cases, Ashcroft’s response was that the Court’s rulings are harmful to national security. One may reasonably conclude that the aggressive advancement of presidential power is a publicly articulated and continuing Bush administration priority, including, but not limited to, the CIC power.

Passing off Legal Briefs as Scholarship The Bush administration’s views regarding the commander in chief power are significant for the obvious reason that they may be drawn on by future administrations to justify subsequent actions and theories not otherwise supported by past arguments or precedent. In addition, however, the significance of these views extends in two other directions. One occurs when the policy’s architects become decision makers and law school faculty. Jay Bybee, for example, a chief author of several of the internal Bush administration documents when he served as head of the DOJ’s Office of Legal Counsel, is now a federal judge on the U.S. Court of Appeals for the Ninth Circuit, a vantage point from which he may well have the opportunity to apply the views he helped construct. Lawyers joining law school faculty will also be well positioned to advance these arguments in the classroom and in publications. A second manifestation is found in the connection between legal training and writing, and constitutional interpretation. In other writings, I have argued that law reviews are a uniquely fertile breeding ground for wayward constitutional theorizing.60 In the case of the unilateral view of executive authority as applied to the CIC power discussed here, a similar link to law journal writing also exists. One of the important authors of the Bush administration documents discussed here is John C. Yoo. Yoo is a faculty member at the University of California at Berkeley Law School. He went on leave to serve as general counsel to the U.S. Senate Judiciary Committee from 1995 to 1996, and to serve in the Bush administration from 2001 to 2003. Of particular note, however, is his authorship of an article that appeared in the California Law

106

Robert J. Spitzer

Review in 1996,61 in which he examined the historical and legal background of the war power. In this article, Yoo made several startling arguments that also emerge in the Bush administration documents discussed here. Rejecting the vast majority of scholarship on the subject, Yoo asserted that the constitutional war powers were designed to “encourage presidential initiative in war,” that is, presidents were to have the leading role in initiating war, that Congress’s role in war making was not based on its power to declare war, instead on its funding and impeachment powers, and that “[t]he courts were to have no role at all” in war-related matters.62 Yoo’s article is significant for three reasons: first, it stakes out a new and unprecedentedly aggressive view of the CIC power—a view that goes beyond past writings that argue for a strong executive;63 second, it seeks to ground the view that the presidential CIC power is essentially beyond the reach of the other branches of government (in the process all but abandoning the separation of powers paradigm) in constitutional interpretation—or more properly, reinterpretation—instead of historical evolution, political preference, or policy necessity; and third, it provided a, if not the, key intellectual underpinning for the Bush administration memos discussed here.64 In an article published in 2000, Louis Fisher examines, and thoroughly refutes, Yoo’s primary arguments.65 Most important for the purpose of this essay is the fact that Yoo’s arguments from 1996 made their way into Bush administration policy documents. This fact, in and of itself, is no startling revelation. What is significant is the effort to elevate the status of the arguments found in the Bush documents from a lawyer’s brief to the realm of academic scholarship. Indeed, a Defense Department spokesman referred to the Bush administration report analyzed here as “a scholarly effort to define the perimeters of the law.”66 If we take Yoo’s law review article and other, similar writings67 as part of the construction of a scholarly, as distinct from political, provenance for the unilateral executive view, then it suggests another constitutional subject that has acquired a scholarly aura because of law review publications. The effort, through law review articles or by other means, to construct a constitutional provenance for a political argument is not a little matter. In a nation built on the longest surviving Constitution in the world, any political position that can claim constitutional roots acquires not only added cache in the courts, but a uniquely powerful political currency. In America, our Constitution is the first, and most important, political talisman.68 Yet, why should law reviews and legal writing be considered any different from the scholarly publications of any other academic discipline?

The “Lewis Carroll” Quality of Law Law reviews and legal writing differ in two key respects from the professional and scholarly writing of other disciplines: first, the discipline of law itself rests on principles and training that differ in fundamental ways from

Commander in Chief Power and Constitutional Invention

107

the intellectual training of other disciplines; and second, the professional publications of the discipline of law, law reviews, function in ways starkly, even shockingly different from the scholarly writings of every other academic discipline. I offer these arguments not to bash lawyers, legal education, or the legal profession, but to explicate traits little known outside of the legal profession that, I believe, have demonstrably adverse effects on the study and understanding of constitutional meaning.

Thinking Like a Lawyer The discipline of law, as it is taught in American law schools, emanates from the nature of the legal profession. According to a widely used text on the nature of law, the teaching of “legal reasoning” lies at the heart of a law school education. It is “a kind of reasoning which is adapted to the reaching of decisions for action. . . . it is like the kind of reasoning characteristic of . . . any other applied, or practical, art or science. It is a quite different kind of reasoning from that which is adapted solely to the establishment of general principles . . . . The pure scientist seeks—primarily—truth; the applied scientist seeks—primarily—right action.”69 As stated more bluntly by another author, “the objective of law school education is to indoctrinate students into the legal profession.”70 Thus, by its nature, law school education is designed to train future lawyers to qualify for a specific vocation. Central to legal reasoning is the principle and practice of adopting a point of view, otherwise referred to as the adversarial system that typifies American law. As another standard law school text notes, “Taking sides is the root notion of the Adversary System (the clash of mad dogs) as opposed to the Inquisitorial System (one very nice dog, sniffing). The idea is that truth is more likely to emerge from conflicting positions than from the most well-meaning of neutral investigations.”71 Moreover, the adversary system means that a lawyer’s only obligation is to the lawyer’s particular position or client. They “have no obligation to parties or interests other than their own clients . . . . Consequently, justice, or the right result, is not the responsibility of either lawyer.”72 The justification for the adversary system is that the clash of opposing lawyers supporting opposing interests will lead to a just result. I have no quibble with the logic or value of the adversary system, or legal training, when played out between lawyers in the context of a functioning legal system. Yet its consequences for academic inquiry are not only very different from but also squarely at odds with the goals of academic inquiry. In a recent essay on the relationship between law, legal analysis, and the study of presidential power, Kenneth Mayer observed that “the legal literature . . . often incorporates simplistic or highly stylized conceptions of politics and government, and legal analyses often do not meet the standards of good social science research.”73 Mayer’s verdict has found empirical confirmation in the work of political scientists Lee Epstein and Gary King, who

108

Robert J. Spitzer

authored a landmark article (published in a prominent law journal) in which they examine the methodological soundness of empirically based law review articles. Their study included a reading of every article published in law journals from 1990 to 2000 in which the word “empirical” appeared in the title—231 articles in all. They found that “serious problems of inference and methodology abound everywhere we find empirical research in the law reviews and in articles written by members of the legal community.”74 Epstein and King argue, too, that at least part of the problem arises from the nature of legal education and training. They note “the markedly different goals” of lawyers as compared with academics of other disciplines. “While a Ph.D. is taught to subject his or her favored hypothesis to every conceivable test and data source, seeking out all possible evidence against his or her theory, an attorney is taught to amass all the evidence for his or her hypothesis and distract attention from anything that might be seen as contradictory information.”75 They further note that “lawyers and judges, and hence law professors, specialize in persuasion. Lawyers need to persuade judges and juries to favor their clients, and the rules of persuasion in the adversary system are different from the rules of empirical inquiry.” (emphasis in the original)76 Thus, the core intellectual norm of legal training is advocacy, not inquiry, and Epstein and King alone provide ample evidence to support the proposition that this norm has direct and deleterious effects on the reliability and objectivity of at least some law journal writing. This does not mean that lawyers are not capable of engaging in dispassionate inquiry, any more than it means that Ph.D.s are somehow insulated from advocacy. But the law’s unique guiding principles place it on a very different intellectual footing. And these principles are found in law schools with an exceptionally high degree of uniformity. According to Lawrence Friedman, curricula, teaching methods, and subject matter are highly consistent across all manner of law schools; indeed, there is “an almost numbing sameness about law schools.”77

The Law Journal Breeding Ground The discipline of law is unique among academic disciplines in that its professional journals are governed mostly by student-run law review boards, and with a few exceptions, submissions are not subject to the process of blind peer review, or even faculty oversight.78 That is, law students alone review, edit, accept, and reject the articles published in their journals, most of which come from law school faculty who, like faculty in other disciplines, seek and obtain promotion, tenure, and status within their institutions and discipline in part through their records of publication. Even though this process “turns the academic hierarchy upside down,”79 it is firmly entrenched in the world of law schools. The consequences of this pivotal fact for law review content have been extensively discussed and debated within the law school community, but are little known outside of it.

Commander in Chief Power and Constitutional Invention

109

Student control has at least two particular effects pertinent to this analysis. First, while the peer review process found in every other discipline is subject to legitimate criticisms, including cronyism and institutional conservatism, law review student editors simply do not possess, and cannot be expected to possess, the knowledge and expertise of those who have researched and published in a field. That is, they are unable to judge an article’s merit or significance based on its place in the larger scholarly debate to which the article seeks to contribute. Aside from the absence of outside expert review or other review by subject matter specialists, student editors are also reportedly influenced in their editorial judgments by the reputations and academic pedigrees of those who submit articles, an obvious problem when no blind review occurs.80 Thus, articles that would not normally pass muster in the journals of other disciplines based on the standard criteria for review might well find their way into print in law journals. Second, law reviews seek and reward through publication articles that are, by the field’s own admission, highly duplicative, voluminously long, and unnecessarily packed with footnotes. This occurs in a contemporary atmosphere in which there is a proliferation, even glut of law reviews— more than 800 by one count.81 Given such a huge publishing field (surely no other discipline has such a vast publishing hole), these characteristics have increasingly produced a contrary editorial drive to publish articles for their distinctiveness rather than their scholarly soundness. These and other criticisms emerge from the legal profession itself.82 In the words of one member of the legal community, law reviews are “dominated by rather exotic offerings.”83 Another critic notes the simultaneous drives that produce both duplication and distinctiveness: “Student editors prefer pieces that recite prior developments at great length, contain voluminous and largely meaningless citations for every proposition, and deal with topics that are either safe and standard on the one hand, or currently faddish on the other.”84 The matter of redundancy also sets legal publications apart from the scholarly literature of every other discipline. It is almost unimaginable that so many repetitive publications would find their way into print in political science or other disciplines, because redundancy is an obvious and typical ground for rejection. In addition, the sheer volume of publishing possibilities provides a uniquely wide opportunity for the cultivation and propagation of particular legal theories, since even a tiny percentage of law review articles devoted to a particular argument could easily amount to dozens of published articles. The tradition of student control over law journals dates to the nineteenth century, coinciding with the professionalization of the legal profession, when a handful of law schools began to publish journals whose purpose was to help judges and lawyers by providing articles that offered “careful doctrinal analysis” that was “primarily a professional rather than an academic product.”85 Top law students, trained from the outset of a law school education to explicate such doctrine, were logical choices to assume this task, which became for them the reward of “making law review” a singular

110

Robert J. Spitzer

honor. In 1900, out of roughly 100 law schools, only seven published journals. Yet the number of law schools grew rapidly, and publication of one or more law journals became an indispensable mark of a law school’s prestige. Law school faculty, many of whom served on law reviews as students, mostly embraced a publishing system in a discipline that had no other tradition. As Friedman notes sardonically, “There was no academic equivalent of a birth control pill for law reviews.”86 As the web of law journals grew, their orientation gradually changed. No longer content to publish articles focused solely on expounding the law by analyzing the content of judicial decisions and explicating legal doctrine, articles increasingly expressed “a bewildering kaleidoscope of every form and mutation of scholarship.”87 Article subjects also increasingly focused on constitutional law, and topical subjects like affirmative action, abortion, gay rights, and capital punishment. According to federal judge and law school faculty member Richard A. Posner, this trend has been disastrous for the system of scholarly publication in law. Part of the problem, according to Posner, is that law journal writing now gives far too much attention to the roughly 80 Supreme Court cases handed down yearly, to the neglect of the thousands of lower federal court decisions issued annually. The glut of too many journal articles produce writings not only irrelevant to the legal community, but that result in publications that are “too long, too dull, and too heavily annotated”; indeed, too many “have no merit at all.”88 To be sure, the student-run system has had long its critics, from Oliver Wendell Holmes in the nineteenth century, who dismissed law reviews as the “work of boys”89 to Judge Posner. Yet the system not only persists, but also flourishes, a fact that has particular import given the scope and influence of legal analysts, commentators, and pundits who are typically sought out as a logical source for expertise on all manner of legal questions in intellectual, political, and popular realms. Having laid out the significant structural and intellectual problems of law reviews,90 one must also note that law reviews certainly publish a great deal of important and valuable scholarship. Nevertheless, the primary traits of law review publication support my argument that these publications possess traits that have made them a uniquely fertile breeding ground for wayward and suspect constitutional theorizing. As Garry Wills noted in his analysis of the recent individualist school of law journal writing on the Second Amendment’s right to bear arms, “It seems as if our law journals were being composed by Lewis Carroll using various other pseudonyms.”91

Conclusion: Reinventing Commander in Chief Powers The central concern of this essay—the struggle to define and apply the president’s commander in chief powers—is hardly reducible to, much less resolved by, a memorandum of a single presidential administration, or law

Commander in Chief Power and Constitutional Invention

111

journal article. Nor is this debate ended by the scholarly consensus that the Constitution’s founders intended to draw the commander in chief power narrowly. Strong arguments can and have been made that the president should exercise CIC powers more broadly, based on some combination of prerogative powers, strategic necessity, political consensus, and historical evolution of an office that has undergone dramatic growth and change in two hundred years. One of the most vigorous proponents of the strong presidency in recent decades, Clinton Rossiter, epitomized the combination of a realistic view of founders’ intentions with unabashed preference for the modern strong presidency. “The framers of the Constitution,” Rossiter observed, “to be sure, took a narrow view of the [commander-in-chief] authority they had granted.”92 He also understood, and approved of, presidential efforts to enlarge the CIC power: “We have placed a shocking amount of military power in the President’s keeping, but where else, we may ask, could it possibly have been placed?”93 It is beyond dispute that both the United States, and the office of the presidency, are profoundly different in the twenty-first century than in the eighteenth, and that the demands of the former necessitate a considerably expanded executive power. The modern separation of powers system, for example, is not the legislative-centered system it was in the late eighteenth and early nineteenth centuries. It is also a truism that the constitutional system has survived a span of four centuries largely because it has been flexible enough to adapt to changes that no one could have anticipated in 1787. Yet none of these arguments for a strong executive justify the construction of a fictionalized constitutional past. The desire to mold constitutional, originalist understandings to fit contemporary political needs is understandable, but reprehensible. The first job of academic scholars is to make every effort to get it right. The abiding concern of this chapter is that law journals make it far too easy for writing that possesses the trappings of scholarship to get it wrong.

Notes 1. Quoted in James P. Pfiffner, “Torture as Public Policy,” Working Paper of the School of Public Policy, George Mason University, 2004, 1. 2. From Antonio M. Taguba, “Article 15–6 Investigation of the 800th Military Policy Brigade,” February 26, 2004, Part I, Sec. 2, No. 5; quoted in Pfiffner, “Torture as Public Policy,” 2. 3. Jay S. Bybee, assistant attorney general, U.S. Department of Justice, “Memorandum for Alberto R. Gonzales,” August 1, 2002. Available at http://www.washington post.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf. Accessed on January 10, 2005. On December 30, 2004, the Justice Department issued a new memorandum, authored by Acting Assistant Attorney General Daniel Levin, that repudiated the administration’s August 2002 memorandum, specifically rejecting the earlier, narrow view of torture that attempted to defend some acts otherwise considered under the rubric of torture. News reports

112

4.

5.

6. 7. 8.

9. 10 11. 12.

Robert J. Spitzer attributed the change at least in part to Alberto Gonzales’s impending confirmation hearings for attorney general. There was, however, no refutation or reconsideration of the administration’s views on presidential power in the 17page memo. R. Jeffrey Smith and Dan Eggen, “Justice Expands ‘Torture’ Definition,” Washington Post, December 31, 2004, A1. “Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations,” April 4, 2003. Accessed at http://www.defenselink.mil/ news/Jun2004/d20040622doc8.pdf. on January 15, 2005. The Report (hereafter “Working Group Report”) was to be declassified in 2013, but was declassified on June 21, 2004, after an earlier draft of the report, dated March 6, 2003, had been leaked to the Wall Street Journal. DOD General Counsel William J. Haynes II appointed the working group organized to write the report. It was headed by Air Force General Counsel Mary Walker, and included “top civilian and uniformed lawyers” from the military branches, who in turn consulted with the Justice Department, the Joint Chiefs of Staff, and intelligence agencies. Jess Bravin, “Pentagon Report Sought to Justify Use of Torture,” Wall Street Journal, June 7, 2004, A1. Even though the earlier document is the product of the OLC, therefore suggesting greater legal import, I focus on the second document because it was produced later and involved not only the same arguments, but at least some of the same people. “Working Group Report,” 50 (emphasis in the original). Bravin, “Pentagon Report,” A1. See Garry Wills’s brilliant demolition of the myth of three coequal branches in A Necessary Evil (New York: Simon & Schuster, 1999), Chap. 5. See also Robert J. Spitzer, President and Congress (New York: McGraw-Hill, 1993), 13–6. Harold Hongju Koh, The National Security Constitution (New Haven, CT: Yale University Press, 1990), 75–6. Gaillard Hunt, ed., The Writings of James Madison, 9 vols. (New York: G.P. Putnam’s Sons, 1900–1910) 6: 248. Louis Fisher, Presidential War Power (Lawrence, KS: University Press of Kansas, 1995), 9. The prodigious literature confirming this understanding includes Clinton Rossiter, The Supreme Court and the Commander in Chief (Ithaca, NY: Cornell University Press, 1976; first published, 1951); Edward S. Corwin, The President: Office and Powers (New York: New York University Press, 1957), Chap. 6; Clinton Rossiter, The American Presidency (New York: New American Library, 1960), 22; Louis Henkin, Foreign Affairs and the Constitution (Mineola, NY: Foundation Press, 1972); Charles A. Lofgren, “War-Making Under the Constitution,” Yale Law Journal 81 (March 1972): 672–702; W. Taylor Reveley, War Powers of the President and Congress (Charlottesville, VA: University of Virginia Press, 1981); Edward Keynes, Undeclared War (University Park, PA: Pennsylvania State University Press, 1982); Jules Lobel, “Covert War and Congressional Authority,” University of Pennsylvania Law Review 134 (June 1986): 1035–1045; Donald L. Robinson, “To the Best of My Ability” (New York: W.W. Norton, 1987); David Gray Adler, “The Constitution and Presidential Warmaking,” Political Science Quarterly 103 (Spring 1988): 1–36; Francis D. Wormuth and Edwin B. Firmage, To Chain the Dog of War

Commander in Chief Power and Constitutional Invention

13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23.

24. 25.

26.

27. 28. 29.

30. 31. 32.

33. 34. 35. 36.

113

(Urbana, IL: University of Illinois Press, 1989); Michael J. Glennon, Constitutional Diplomacy (Princeton, NJ: Princeton University Press, 1990); Koh, The National Security Constitution; Spitzer, President and Congress; Fisher, Presidential War Power; Louis Fisher, Congressional Abdication on War and Spending (College Station, TX: Texas A & M University Press, 2000). Some of these writers disagree about the legality or propriety of modern expansive executive war making, but all broadly agree in their view of what the founders intended. Talbot v. Seeman, 5 U.S. 1, 28 (1801). See also Bas v. Tingy, 4 U.S. 37 (1800). Little v. Barreme, 6 U.S. 170 (1804). 88 U.S. 73 (1874). “Working Group Report,” 20. The quoted material is from Hamilton v. Dillin at 87 (emphasis in the original). Ibid, 21. Ibid. Ibid, 20. Ibid, 21. 67 U.S. 635 (1862). “Working Group Report,” 24. Hamilton is not cited or mentioned in the most extensive and detailed book on cases related to presidential power, Peter M. Shane and Harold H. Bruff, Separation of Powers Law (Durham, NC: Carolina Academic Press, 1996). Hamilton v. Dillin, 87–8. No actual declaration of war was enacted for the Civil War, given the government’s assumption that the conflict was a domestic insurrection, not a conflict with a separate sovereign entity. Congress did, however enact various legislative measures to, in effect, authorize federal action against the South. Fisher, Presidential War Power, 38–40. The most well-known, though hardly only, statement of this principle is Justice Robert Jackson’s famous concurring opinion in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952). See Hamilton v. Dillin, 87, 97. Ibid, 88. In the early months of the Civil War, Lincoln acted unilaterally, without congressional authority, to meet the military crisis posed by the secession of the southern states. Once Congress convened in July 1861, he sought and received retroactive legislative authority for the actions he had taken. “Working Group Report,” 20; quoted from Department of Navy v. Egan, 484 U.S. 518, 530 (1988). Ibid, 21; Haig v. Agee, 453 U.S. 280, 291 (1981). The quote-within-a-quote wording is from Haig. Haig, 291–2 cites Chicago & Southern Air Lines v. Waterman S.S. Corp, 333 U.S. 103 (1948); Harisiades v. Shaughnessy, 342 U.S. 580 (1952); and Zemel v. Rusk, 381 U.S. 1 (1965). Haig, 293–4. U.S. v. Smith, 27 Fed. Cas. 1192, 1229 (C.C.N.Y. 1806). Quoted in Fisher, Congressional Abdication, 19–20. See, for example, Rossiter, The Supreme Court and the Commander in Chief, 89–92. The Uniform Code of Military Justice of 1950, 64 Stat. 107. Prior congressional enactments regarding military justice were adopted in 1863 and 1916.

114

Robert J. Spitzer

37. For a list of congressional legislation pertinent to presidential CIC actions in wartime, see Corwin, The President, Chap. 6; Johnny H. Killian, ed., The Constitution of the United States of America (Washington, DC: GPO, 1987), 349–51. 38. Ex parte Quirin, 317 U.S. 1, 26 (1942). 39. Louis Fisher, “Congressional Checks on Military Initiatives,” Political Science Quarterly 109 (Winter 1994–1995): 756–8. 40. Rossiter, The Supreme Court and the Commander in Chief, 6. 41. “Working Group Report,” 24. 42. Prize Cases, 67 U.S. 635, 670 (1862). 43. Oddly, the “Working Group Report” does not use this argument of CIC powers as greatest when the country is subject to a sudden attack to good effect. 44. Rossiter describes how “the Supreme Court, in deciding several hundred cases involving the scope of the national war powers, has interpreted the President’s status and authority as commander in chief.” The Supreme Court and the Commander in Chief, v. 45. Adam Liptak, “Legal Scholars Criticize Torture Memos,” New York Times, June 25, 2004, A14. 46. Hamdi v. Rumsfeld, 159 L. Ed. 2d 578, 591. 47. Ibid, 602–3. 48. Ibid, 603. The Court goes on to say that allowing the executive the right to deny a citizen the right of the writ of habeas corpus “would turn our system of checks and balances on its head”; only Congress could suspend the writ for a citizen detained as an enemy combatant (at 604). 49. The Court’s repetitively expressed deference to the executive in foreign policy matters is found not only in foreign policy cases, but those dealing with domestic policy as well. See Michael A. Genovese and Robert J. Spitzer, The Presidency and the Constitution: Cases and Controversies (New York: Palgrave Macmillan, 2005). 50. Quoted in Dana Milbank, “The Administration vs. the Administration,” Washington Post, June 29, 2004, A21. 51. Daniel Levin, acting assistant attorney general, Office of Legal Counsel, U.S. Department of Justice, “Memorandum for James B. Comey, deputy attorney general,” December 30, 2004; accessed at http://www.usdoj.gov/olc/ dagmemo.pdf. on January 17, 2005; Eric Lichtblau, “Gonzales Speaks against Torture at Senate Confirmation Hearing,” New York Times, January 7, 2005, A18. 52. Eric Lichtblau, “Broad Influence for Justice Dept. Choice,” New York Times, November 21, 2004, 30. 53. John Yoo, deputy assistant attorney general, Office of Legal Counsel, U.S. Department of Justice, “Applying the War Powers Resolution to the War on Terrorism,” testimony before the Subcommittee on the Constitution, Committee on the Judiciary, U.S. Senate, April 17, 2002. 54. Dana Milbank, “In Cheney’s Shadow, Counsel Pushes the Conservative Cause,” Washington Post, October 11, 2004, A21. 55. According to the Washington Post, “Addington’s influence—like Cheney’s overall—extends throughout the government in his bid to expand executive power. He goes through every page of the federal budget in search of riders that could restrict executive authority. He meets daily with White House Counsel Alberto R. Gonzales and often raises objections to requests for information from Congress

Commander in Chief Power and Constitutional Invention

56.

57.

58. 59.

60.

61.

62. 63.

64.

65. 66. 67.

115

or the public, officials say. He also routinely works to defeat proposals from the State Department, where the pervasive internationalist philosophy is at odds with Cheney’s neoconservatism.” Milbank, “In Cheney’s Shadow,” A21. See Spitzer, President and Congress; Kenneth R. Mayer, With the Stroke of a Pen (Princeton, NJ: Princeton University Press, 2001); Phillip J. Cooper, By Order of the President (Lawrence, KS: University Press of Kansas, 2002); William G. Howell, Power without Persuasion (Princeton, NJ: Princeton University Press, 2003). Liptak, “Legal Scholars Criticize Torture Memos”; Adam Liptak, “How Far Can a Government Lawyer Go?” New York Times, June 27, 2004, 4–3; Dana Priest and R. Jeffrey Smith, “Memo Offered Justification for Use of Torture,” Washington Post, June 8, 2004, A1. Milbank, “In Cheney’s Shadow,” A21. “Prepared Remarks of Attorney General John Ashcroft,” delivered before the Federalist Society, November 12, 2004. Accessed at http://www.usdoj.gov/ ag/speeches/2004/111204federalist.htm on February 1, 2005. Robert J. Spitzer, “The Constitutionality of the Presidential Line-Item Veto,” Political Science Quarterly 112 (Summer 1997): 261–84; “Lost and Found: Researching the Second Amendment,” Chicago-Kent Law Review 76 (2000): 349–401; “Saving the Constitution from Lawyers,” in Politics and Constitutionalism, ed., Spitzer (Albany, NY: SUNY Press, 2000), 185–225. In these writings, I argue that law reviews have cultivated two wayward constitutional theories: that the president possesses a constitutionally based item veto, and that the Second Amendment protects an individual right to bear arms. Both of these theories originated and were cultivated in the pages of law reviews, and later found their way into political and legal debates. John C. Yoo, “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” California Law Review 84 (March 1996): 170–305. Yoo’s arguments from his 1996 article also appear in a subsequent article (with an unintentionally ironic subtitle): “CLIO at War: The Misuse of History in the War Powers Debate,” University of Colorado Law Review 70 (Fall 1999): 1169–222. Yoo, “The Continuation of Politics,” 170. Among the most aggressive statements of the modern strong presidency argument are: Gordon S. Jones and John A. Marini, eds., The Imperial Congress (New York: Pharos Books, 1988); L. Gordon Crovitz and Jeremy A. Rabkin, eds., The Fettered Presidency (Washington, DC: American Enterprise Institute, 1989); Terry Eastland, Energy in the Executive (New York: Free Press, 1992). None of these sources offers arguments about the CIC power on the scale of Yoo. The broader contours of the debate over competing views of presidential power are analyzed in Spitzer, President and Congress, Chap. 7; Raymond Tatalovich and Thomas S. Engeman, The Presidency and Political Science (Baltimore, MD: Johns Hopkins University Press, 2003). Neither Yoo’s article nor any other secondary source is cited in the Report, but his arguments are distinctive, and because they are repeated in the Report’s arguments, and because of Yoo’s key role, I assume a connection. Louis Fisher, “Unchecked Presidential Wars,” University of Pennsylvania Law Review 148 (May 2000): 1637–72. See 1658–68 for the discussion on Yoo. Priest and Smith, “Memo Offered Justification,” A1. See John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (Chicago: University of Chicago Press, 2005).

116

Robert J. Spitzer

68. See Mary Ann Glendon, Rights Talk (New York: Free Press, 1991); Robert J. Spitzer, The Right to Bear Arms (Santa Barbara, CA: ABC-CLIO, 2001), 82–3. 69. Harold J. Berman, William R. Greiner, and Samir N. Saliba, The Nature and Functions of Law, 6th ed. (New York: Foundation Press, 2004), 13. See also Chap. 6 on legal reasoning. 70. Steven Vago, Law and Society (Englewood Cliffs, NJ: Prentice-Hall, 1991), 279. See also Ruggero J. Aldisert, Logic for Lawyers (New York: Clark Boardman Co., 1989). 71. Kenney Hegland, Introduction to the Study and Practice of Law, 3rd ed. (St. Paul, MN: West Publishing, 2000), 16. 72. Stephen Gillers, “The American Legal Profession,” in Fundamentals of American Law (New York: Oxford University Press, 1996), 166–7. The adversary system has its limits; lawyers are not supposed to lie to clients, or encourage clients to lie, for example. Prosecutors in criminal cases who uncover evidence that would help the defendant are obligated to make that information available. 73. Kenneth Mayer, “The Return of the King? Presidential Power and the Law,” PRG Report, 26(Spring 2004): 13. 74. Epstein and King, “The Rules of Inference,” 15. 75. Ibid, 9. 76. Ibid, 9 and note 23. 77. Lawrence M. Friedman, American Law in the 20th Century (New Haven, CT: Yale University Press, 2002), 486. 78. Rosa Ehrenreich, “Look Who’s Editing,” Lingua Franca (January/February 1996): 58–63; Bernard J. Hibbitts, “Last Writes? Reassessing the Law Review in the Age of Cyberspace,” New York University Law Review 71 (June 1996): 615–88; Christopher Shea, “Students v. Professors,” The Chronicle of Higher Education, June 2, 1995, A33–4. Faculty oversight has actually declined since 1970, although there has been a recent revival of the call for greater faculty control. Roger C. Cramton, “ ‘The Most Remarkable Institution’: The American Law Review,” Journal of Legal Education 35 (1986): 6. 79. Friedman, American Law, 497. 80. Lee Epstein and Gary King, “The Rules of Inference,” University of Chicago Law School 69 (Winter 2002): 48, 125–7. 81. Ehrenreich, “Look Who’s Editing,” 60. 82. The law school community has engaged in much soul-searching and self-criticism on this matter, going back many decades. See “Special Issue,” Akron Law Review 30 (Winter 1996); “Special Issue,” Stanford Law Review 47 (Summer 1995); “Symposium on Law Review Editing: The Struggle between Author and Editor over Control of the Text,” Chicago-Kent Law Review 70 (1994); Carl T. Bogus, “The Death of an Honorable Profession,” Indiana Law Journal 71 (Fall 1996): 911–47. 83. Hibbitts, “Last Writes?” 647–8. Despite continued, even growing criticism of student control of law reviews, students continue to control an ever-growing number of such publications. 84. Cramton, “ ‘The Most Remarkable Institution,’ ” 8. 85. Richard A. Posner, “Against the Law Reviews,” Legal Affairs (November/December 2004), accessed at http://www.legalaffairs.org/issues/ November-December-2004/toc.html. on January 14, 2005. 86. Friedman, American Law, 498; Kermit L. Hall, The Magic Mirror (New York: Oxford University Press, 1989), 218.

Commander in Chief Power and Constitutional Invention 87. 88. 89. 90.

117

Friedman, American Law, 499. Posner, “Against the Law Reviews.” Quoted in Hibbitts, “Last Writes?” 631. For the sake of full disclosure, I note that I have published five articles in five different law journals. My personal experiences are consistent with the traits of these publications discussed here. In my study of law journal writings on the Second Amendment, I examined over 300 law journal articles on the subject, published between 1874 and 1999. Among other things, I was stunned by the degree of repetition across articles, and by the extent to which many of these authors ignored, or misrepresented the nature of, their own past literature. See Spitzer, “Lost and Found,” 349–401. 91. Garry Wills, “To Keep and Bear Arms,” New York Review of Books, September 21, 1995, 71. 92. Rossiter, The American Presidency, 22. 93. Ibid, 23.

This page intentionally left blank

Chapter Six The President Over the Public: The Plebiscitary Presidency at Center Stage Lori Cox Han

This chapter begins with a narrower version of the question posed throughout this book—does the public presidency pose a threat to constitutional democracy in America? While the framers may have been somewhat ambivalent about how strong the president should be, with James Madison arguing for a government that limited itself through checks and balances to diffuse power in Federalist 51 while Alexander Hamilton argued for a powerful and energetic executive in Federalist 70, the public arena has certainly provided some presidents with broader powers than perhaps intended. As with other powers of the office, the public aspects of the presidency have had important historical developments, particularly during the twentieth century. The proliferation of daily newspapers at the turn of the twentieth century, followed by the advent of radio, then television, and then the expansion of newer technologies like the Internet and satellite transmissions, have created myriad opportunities for presidents to communicate. Along with the opportunities came the expectation that the president would be an effective communicator, using the bully pulpit to rally for public policies and to share his vision for America with his fellow citizens. But, since Theodore Roosevelt kicked off what most scholars refer to as the start of the “rhetorical presidency,” several presidents have received less than stellar marks for their public speaking skills and their ability to lead and inspire the public as the ultimate symbol of American political power. And in recent years, scholars have begun to point out that while communication strategies have become a permanent part of the day-to-day operation within the White House, perhaps presidents’ attempts to shift public opinion through public activities are limited. In this chapter, I address the question of the usefulness of the public presidency in the current political environment (that is, can a president’s communication strategy make a difference in terms of what he achieves), as well as the constitutional danger, if any, posed by a president’s attempt at public leadership. Has the public presidency, and its focus on the public

120

Lori Cox Han

aspects of the office, thrown the constitutional balance of power between the three branches out of balance? Does the president really gain political power within the constitutional framework of our government if he is a skilled and effective communicator? Or have we just been duped into thinking that an image of strong presidential leadership on our television screens equates success in the arenas of domestic and foreign policy making? Finally, I offer a brief assessment of Bill Clinton and George W. Bush and their respective efforts at public leadership, and argue that our definition of what constitutes a “good communicator” may be permanently altered due to Bush’s reelection in 2004.

What is Public Leadership? The notion of leadership—what it is and who has been a good leader, is much debated within several academic disciplines, including political science. No clear definition has yet to emerge, though many scholars have provided useful insights as to what makes a leader successful, as well as which leaders have failed and why. Understanding one particular aspect of leadership—communication, or what some refer to as public leadership— and how it fits within our general understanding of presidential leadership, can provide a useful insight to how several recent presidents have been judged, both while in office and in their post-presidential years. First, what exactly do we mean by “leadership,” particularly in regard to presidents? Several presidents come to mind when one is asked about presidential greatness—George Washington, Thomas Jefferson, Abraham Lincoln, Theodore Roosevelt, Franklin D. Roosevelt, and even Ronald Reagan and Bill Clinton in recent polls (perhaps the latter two presidents because they were both reelected and served two full terms, which is not an easy feat, and/or the fact that the public likes skilled communicators).1 Americans expect their presidents to be the epitome of political leadership. They are, after all, the steward of the people, the commander-in-chief, and the embodiment of American strength and national unity both at home and abroad. Some presidents have moments of great leadership, but few are great leaders. We do have, after all, several constitutional restraints that tend to limit unilateral actions from the Oval Office, although some presidents have worked around those features. Often, like Supreme Court Justice Potter Stewart’s definition of obscenity, Americans know good leadership when they see it. But, how to define such a malleable term like leadership, and apply it to such a complex and paradoxical job as the American presidency, is not an easy task. Leadership theories abound that discuss specific traits, skills, styles, or personality characteristics that leaders possess, or certain situations that emerge to allow leaders to act accordingly.2 Perhaps one of the most widely recognized theories of leadership would be the work of James MacGregor

The President Over the Public

121

Burns, who introduced us to the idea of transformational leadership in the late 1970s.3 For Burns, leadership is more than just the act of wielding power; it involves the relationship between leaders and followers. Burns states that transactional leadership refers to what most leaders are able to accomplish—the day-to-day exchanges between leaders and followers that have come to be expected. For example, a presidential candidate may promise to cut taxes, and once elected, he or she follows through with that plan. Transformational leadership, on the other hand, provides more than just a simple change in the political process. A transformational leader provides broader changes to the entire political system that raises the level of motivation and morality in both the leader and the follower. As Burns states, “transforming leaders define public values that embrace the supreme and enduring principles of a people.”4 Bruce Miroff’s work, which focuses on the types of American leaders that have fostered the American democratic ideal, as well as those prominent leaders that have undermined it, is also useful in understanding presidential leadership.5 Democratic leaders respect their followers, are committed to the notion of self-government, and nurture the possibilities of civic engagement through a public dialogue. Miroff refers to five presidents as “icons of democracy,” including John Adams, Abraham Lincoln, Theodore Roosevelt, Franklin Roosevelt, and John F. Kennedy. However, two of these men—Roosevelt and Kennedy—represent a type of heroic leadership based on imagery, in which each pursued a kind of self-aggrandizement that jeopardized democratic public life. Adams, Lincoln, and FDR, on the other hand, sought to educate the American public and challenged “the American democracy to fulfill its deeper promise.”6 According to Miroff, true political leadership must come from an honest dialogue between citizens and their leader, and the public cannot continue to be viewed through a cynical lens as “an ignorant, emotional force to be managed and manipulated.”7 The mention of imagery and an honest dialogue between leaders and followers ties in to the role that communication plays in presidential leadership. While most, if not all, theories of leadership discuss communication on some level, I argue that it is one of the most important features of distinguishing a good leader from a great one. For presidents, this is a particularly salient issue given the dominance of the mass media within our current political environment. And from the start of the television age, a medium that really took hold of the political process in 1960, we have seen nine presidents in the Oval Office, and only three of those (Kennedy, Reagan, and Clinton) have been considered good communicators. These three men knew how to use the mass media, and particularly television, to their advantage, while the others (Johnson, Nixon, Ford, Carter, and Bush I) could never quite find their public voices (the ability to positively connect with the American public through public activities) within our media-saturated political culture. (I address George W. Bush and his skills as a communicator later in this chapter).

122

Lori Cox Han

However, it takes more than just good communication skills, or charisma, to be a great leader. Getting back to Burns’s notion of transformational leadership, charisma can be confusing, undemocratic, and at its worst, a type of tyranny. On the positive side, however, charismatic leaders can empower their followers by providing them a clear vision, and by energizing and enabling them to achieve a greater public good. David Gergen, former presidential advisor to Nixon, Ford, Reagan, and Clinton, speaks to this issue as well. In his book Eyewitness to Power, he lists seven lessons of leadership. The first three, that leadership starts from within, that a president must have a central, compelling purpose, and that a president must have a capacity to persuade, point out that a president has much to gain from strong communication skills (for example, legislative success and reelection). However, presidents can over-utilize the public aspects of the office and talk too much, thereby “dulling the impact” of their message.8

The Rhetorical Presidency and White House Communication Strategies Why, then, is presidential public leadership important? By all accounts, at least theoretically, we live in a deliberative democracy. The framers certainly set up a constitutional system that encouraged a spirited public debate, and those citizens participating in the debate have increased since the framers’ time through the enfranchisement of nearly all citizens. First Amendment case law throughout the twentieth century has also supported the importance of protecting political speech in order to encourage the deliberative aspects and responsibilities of American citizenship (a prominent example would be the Supreme Court’s 1964 ruling in New York Times v. Sullivan, a landmark decision that gave political speech higher protection in libel cases by creating a higher burden of proof for public officials trying to prove that they had been defamed). Through the unique access that a president has to the bully pulpit, as well as the status as the only elected government official (along with the vice president) that represents all of the people, he has a special responsibility to lead a good portion of the public debate. What a president says publicly is so important in determining how the press will portray a president’s actions and policy directives that presidential rhetoric tends to define much of our political reality.9 Some have argued, however, that the rhetorical presidency is a danger to our constitutional democracy. As Jeffrey Tulis reminds us in his book, The Rhetorical Presidency, the founders were quite suspicious of a popular leader and/or demagogue in the office of the presidency, since such a person might rely on tyrannical means of governing.10 Tulis argues that the presidency experienced a fundamental transformation by becoming a “rhetorical presidency” during the early part of the twentieth century, causing an institutional dilemma. By fulfilling popular functions and serving the nation

The President Over the Public

123

through mass appeal, the presidency has now greatly deviated from the original constitutional intentions of the framers, removing the buffer between citizens and their representatives that the framers established. The current political culture now demands the president to be a popular leader, with “a duty constantly to defend themselves publicly, to promote policy initiatives nationwide, and to inspirit the population.”11 Roderick Hart also believes that the rhetorical presidency is a twentieth century creation and a constitutional aberration. The president is not merely a popular leader vested with unconstitutional powers, but also uses rhetoric as a “tool of barter rather than a means of informing or challenging a citizenry.”12 Written during the end of the Reagan era, Hart’s observations on presidential rhetoric as a tool of leadership still ring true today: To speak is to be a power monger . . . .All speech is not created equal. The speech of presidents is more powerful than most. This power derives in part from the office of the presidency, but it also derives from the attitudes presidents have toward the speech act itself. Most presidents, certainly most modern presidents, use speech aggressively. The position they hold and the information at their command give them the tremendous advantages of saying a thing first and saying it best.13

In contrast, other scholars view presidential rhetoric as a positive institutional and constitutional feature, as well as one imagined by the framers as a necessary element of a properly functioning republic that allows presidents to speak directly to the public. Rhetoric also plays an important role in the institutional setting of the presidency by enabling different presidents to shape the presidency in a stable and constant manner.14 Regardless of which side prevails in this debate on constitutional interpretation and the framers’ intent as to how much power they wished the president to have, there is no denying the importance of skilled communication to the contemporary presidency. As I have argued in previous writings, a White House communication strategy consists of various components, including the leadership style of the president, presidential rhetoric and speechwriting, presidential public activities, the presidential policy agenda, and the presidential/press relationship. Communication strategies have become an important and permanent part of the everyday operation of the White House. An effective presidential communication strategy can be a critical factor, at least for presidents since the emergence of the television age, in developing and implementing the administration’s policy goals. To understand how a president communicates is to understand an important base of power for the modern presidency.15 Mary Stuckey has also aptly labeled the president an “interpreter-in-chief” and the “nation’s chief storyteller.” Presidential rhetoric has changed over time as media technologies have continued to expand, providing citizens with more in-depth coverage of the president. Due especially to television coverage, presidential advisers now develop communication strategies that seek more support for the

124

Lori Cox Han

president as a person or leader and less support for specific policy proposals. This has led to an emphasis on symbolic and ceremonial, rather than deliberative, speech.16 But what happens when a president is not a skilled communicator, or even if he is, when he happens to have an off day? With so much attention paid to every presidential public moment each day, the president has virtually no room for rhetorical error. As a result, given the tremendous pressure that presidents now face in this mediated political reality, a president poses a strategic risk each time he appears in public to give a major address, to be interviewed by the news media, to take part in a formal or informal press conference, to hold a bill signing in the Rose Garden, or a photo opportunity in the Oval Office. There is hardly a moment when the president is not on center stage. Presidents continue to go public more often and in a growing number of venues than their predecessors. With an ever-increasing number of news outlets, there are even more opportunities for the press to catch a presidential gaffe or misquote on some specific policy, or to get the president to respond to a question best left unanswered (at least from the strategic standpoint of White House advisors). Even skilled communicators like Reagan and Clinton were known to have an occasional off day. And the risk for a media misstep is especially great for a president as he seeks reelection. The incumbent wants voters to see an image of strong leadership, and hopes that it is his version of political reality, and not his opponent’s, that will shape the public debate during the campaign. Given this political environment, in which a president is expected to show mastery of the bully pulpit, can a president use his rhetorical skill to go beyond his constitutional powers to grab power away from the other branches through leading the public? Our two most recent occupants of the Oval Office—Bill Clinton and George W. Bush—provide fascinating yet contrasting case studies as to how each attempted to use public leadership to achieve their policy objectives and, perhaps more importantly, to gain high public approval ratings. While perhaps no president can compare to Clinton’s overall political skill, which included a speaking style that was both polished and substantive, he had no real opportunity for grand, or to use Burn’s definition, transformative, leadership. The economic prosperity and lack of a serious threat to national security during the 1990s provided Clinton many policy opportunities on the domestic front (some of which he was able to capitalize on), but the nation experienced no real “rally-roundthe-flag” moment for Clinton to display bold presidential leadership. Bush, on the other hand, had a tremendous opportunity to provide strong and transforming public leadership following the terrorist attacks of 9/11, yet Bush failed, in part, due to his lack of rhetorical skill (at least in the traditional sense). And, as I discuss further, both presidents were hampered in their attempts to lead and govern in their respective political environments, which were and continue to be dominated by media saturation, a partisan divide, and a public dialogue that places greater emphasis on personal style over policy substance.

The President Over the Public

125

Bill Clinton’s Public Presidency: Setting the Stage for George W. Bush While president, Bill Clinton’s relationship with the news media and the American public was nothing if not complex. Negative and tabloid-style news coverage, particularly of Clinton’s personal life, began in the weeks leading up to the 1992 New Hampshire presidential primary and continued even after he left the White House in January 2001. Yet despite many of the personal and political problems that Clinton endured while in office, his approval ratings remained high when he left office and were certainly not negatively impacted during the investigation and resulting impeachment of 1998 and early 1999 (the public’s disapproval of Clinton on a personal level, however, was quite high). While most of Clinton’s presidential legacy will take years to fully develop, much has already been written about Clinton’s success as a communicator in the media-driven age of the 1990s. Clinton’s presidential leadership style was often defined by the ability of his media advisors—as well as his own skills at public persuasion—to perpetually spin out of trouble with both the press and the public. An important aspect of Clinton’s communication strategy included the use of “new media” outlets—often sidestepping traditional news outlets (including the White House press corps) to speak more directly to the American people through cable news talk shows, regional news conferences with local television and radio stations, and various other forms of electronic town hall meetings. By most accounts, Clinton was a complex president during a “turbulent” political era in American history; during the 1990s, Americans witnessed both tremendous economic growth and partisan polarization in Washington while trying to sort out the complexities of where America fit into the post–Cold War “New World Order.”17 The Clinton years have also been described as a paradox and a time of missed opportunities—a skilled politician governing at a time of economic prosperity yet whose personal scandals diminished his ability to command leadership over the national agenda. Clinton is viewed as “a politician of extraordinary talent [who] missed the opportunity to be an extraordinary president.”18 In spite of the economic growth during the 1990s (what Clinton referred to as achieving “peace and prosperity”), the achievement of producing a balanced budget, and policy victories like welfare reform, the impeachment in 1998 will forever cast a dark cloud over the Clinton presidency as it “continued the long-term loss of presidential prestige” that began during the imperial presidencies of Johnson and Nixon.19 The economic boom of the 1990s may have also worked against the ultimate legacy of the Clinton years, since facing a crisis provides a better opportunity for strong leadership: “Except for the scarlet letter of impeachment, Clinton’s presidency is not particularly likely to stand out because the times in which he governed denied much opportunity to make a bold mark.”20

126

Lori Cox Han

Clinton also faced a difficult political environment in which to govern at the start of his first term in 1993. Successful presidential leadership comes from “understanding the constraints and possibilities in the environment so as to exploit them most effectively,” and Clinton faced several constraints, including the lack of an electoral mandate with only 43 percent of the popular vote in 1992, a policy agenda that included complex and wide-ranging changes to existing policies (i.e., health care), and a lack of resources for his policy initiatives.21 That same complex policy agenda did not change for Clinton throughout his eight years in office, and this often posed serious limitations in his ability to properly frame his goals and provide the nation with a clear rhetorical definition of his presidential vision. Clinton often acknowledged the problem as a lack of clear communication with the American people, yet by 1995, when the Republicans had taken control of both houses of Congress, his rhetorical message was often a defensive one in the sense that he was forced to provide policy alternatives from the opposing party. As George C. Edwards points out, while Clinton may have benefited in terms of approval ratings by opposing Republican initiatives, it shifted his public strategy and diminished his opportunities for strong public leadership: “campaigning, posturing, and pronouncing, although it may have been Clinton’s strength, is not governance—certainly not in the usual sense of precipitating great national debates on important questions of public policy or of driving legislation through Congress.”22

George W. Bush’s Public Presidency George W. Bush is a fascinating study of a mediocre communicator who has nonetheless found his public voice. Since the start of the television age, four presidents have won reelection—two that were excellent communicators (Reagan and Clinton) and two that were not known for their polished and inspiring public performances (Nixon and Bush II). Obviously, having strong communication skills does not automatically grant nor preclude a second term to any president, but for Reagan and Clinton, this certainly added to their overall popularity and success on the campaign trail. What, then, accounts for the reelection of Nixon and Bush? For a president who is not a strong communicator, at least in the traditional sense, other factors must come into play in order to first govern successfully and then get reelected. For Nixon, despite his long and tumultuous relationship with the press throughout his political career and his obvious discomfort in various public appearances (in spite of his vast knowledge of issues), the news media did not yet dominate the political landscape with 24-hour news coverage as it would in the coming decades. (Of course, numerous other factors played a role in his reelection as well, including Vietnam, Nixon’s 1972 historic trip to China, the relaxing of tensions with the Soviet Union, and a weak Democratic opponent in George McGovern. But Nixon’s public image did not harm him as much as it might have in later presidential elections). Bush,

The President Over the Public

127

on the other hand, does face a media-dominated political environment driven by instant access to news from an ever-expanding list of both channels and medium options. He also faced many political obstacles from his first day in office stemming from a disputed election outcome in 2000 and nearly an evenly divided electorate. Yet as a man “whose syntax and ability at public speaking [has] been the subject of considerable ridicule,”23 Bush and his advisors have discovered how to capitalize on the president’s lack of strong public speaking skills and still succeed in a political environment in which the president is expected to adopt the “permanent campaign” strategy of governing. Bush has become the “unrhetorical president” operating successfully in the age of the rhetorical presidency.24 The traditional definition of strong presidential communication, which includes elegant and often poetic political prose delivered flawlessly to a national or international audience by the likes of FDR, Kennedy, Reagan, or Clinton, has been turned on its head by this administration. Bush’s communication style may not resonate with those traditional political pundits making such observations and rating presidential speeches (particularly those among the media elite and those within academic circles), but he certainly resonates with a core section of the population that appreciates his simplistic message. So, dismissing Bush as a poor communicator would be, ironically, too simplistic, since it misses the connection he has with many of the voters who appreciate him for other reasons, like his sincerity and religious convictions. As Gary L. Gregg calls it, Bush brings a “dignified authenticity” to the office of the presidency, toning down the symbolic trappings of the office emphasized by many of his predecessors while emphasizing himself as an “honest and solid” leader.25 During his ascension to the national stage during the 2000 presidential campaign, Bush’s message was simple and consistent in differentiating himself from Bill Clinton, challenging Al Gore’s credibility, and promising to change the partisan tone in Washington (to be a “uniter, not a divider”). Throughout the campaign, Bush was not big on details in his calls for a more “compassionate conservative” agenda, something that did not change once he became president. (Unlike Clinton, who liked to think extensively about decisions before making them, Bush’s leadership style has shown a confidence in his own ability to firmly make decisions without worrying too much about evidence or details).26 Bush was elected without the popular vote, without a mandate, and prior to 9/11, he focused on a fairly limited policy agenda (tax cuts, faith-based initiatives, education reform, and curbing stem cell research). Americans knew that Bush was not a skilled communicator, and with the close partisan divide in Washington, the expectations for Bush were initially quite low. Bush’s first eight months in office, forever to be referred to as the pre–9/11 Bush presidency, was as Fred Greenstein calls a “bland beginning.” In his 14-minute inauguration address, the shortest on record in modern history, much of the “moving imagery” about bringing compassion to public issues such as education, medicare, social security, tax reduction, and

128

Lori Cox Han

strengthening the nation’s military in the text of the speech was lost in the lackluster delivery. Bush’s inaugural address was “weakened by his propensity to stumble over words and pause mid-phrase instead of at logical breaking points. By the time Bush arrived at the address’s peroration, his halting presentation made it obvious that he was reading a script rather than speaking in his own voice.”27 Also during the early months, Bush took a low-key approach to the symbolic aspects of the public presidency while employing a targeted news coverage strategy on specific policy topics.28 He did not address the nation, nor did he hold a primetime press conference, until after 9/11. However, he did continue in the footsteps of Reagan and Clinton in his use of the weekly radio address to push his policy agenda, and he embarked on an extremely busy travel schedule as part of a “massive public relations campaign on behalf of his priority initiatives” that took him to 29 states between January and May 2001 (which included more travel than any other new president in such a short period).29 Then came the terrorist attacks of 9/11, a time when the nation looked to the president for words of wisdom and comfort. Bush, at least temporarily, became in the eyes of some political pundits a rhetorical president capable of leading the nation through his use of the bully pulpit. Prior to 9/11, Bush was viewed as a “flawed public speaker” who did not recognize the potential of the bully pulpit, and after 9/11, Bush began “presiding over a teaching and preaching presidency, addressing the public regularly and with force, effectiveness, and even eloquence.”30 Since then, Bush’s strengths as a communicator have been his ability to stay on message in his public remarks, and doing so through direct and concise statements. Bush is also known for being a steadfast and resolved leader (although the flipside to that is the fact that the Bush administration never admits to making a mistake). Bush has had several defining rhetorical moments since 9/11. He was given high marks for his address to the nation in the days following the attack, as well as his 2002 state of the union address in which he provided a strong response to terrorism (the axis-of-evil speech, while given high marks for its rhetorical components, was considered controversial for its policy content). Other strong performances were his address to the UN General Assembly in the fall of 2003 in making the case to disarm Iraq, and the 2003 state of the union address in which he readied the nation for war. The Bush administration has also used the president’s personality to his advantage with certain groups, given his ability to connect with those Americans who like to see the president act more like a “regular guy.” This has often been accomplished through his use of simple phrases (like “wanted, dead or alive”)that not only make perfect sound bytes, but also seem to resonate with his core supporters (the middle-America, rural, and exurban voters). However, Bush’s public leadership throughout his first term is, at best, a mixed record. He did not emerge as a strong communicator in the traditional sense during his first four years in office, including his reelection campaign, and he is still awkward and uncomfortable at times while trying to

The President Over the Public

129

articulate certain points about policy specifics (one of Clinton’s strongest communication skills). He has, however, been quite divisive at times in both his policies and rhetoric. While he gave one of his best public performances in his acceptance speech at the 2004 Republican National Convention, the year was marked by several poor public performances as well. The 2004 state of the union address, almost Clintonesque in its listing of policy priorities, was roundly panned, followed by a lackluster appearance on Meet the Press in February in which he repeatedly labeled himself a “war president.” His primetime press conference in the spring of 2004 was an uncomfortable exchange between the president and the White House press corps, and even most Republicans agreed that Bush performed badly during the first presidential debate against Democratic challenger John Kerry in October 2004, and by all accounts “lost” the next two even though he was better prepared. The lesson learned here seems to center on the issue of venue and audience—Bush’s speaking style of staying on message through short, pithy statements plays well with some groups and not so much with others. Although Bush’s clear message about being a strong war leader and sharing core American values worked well on the campaign stump in several swing states, most Americans tend to look for more details in events such as prime-time press conferences or presidential debates.

Bush’s Reelection and Beyond: Redefining the Public Presidency? Nonetheless, image still matters in presidential campaigns as candidates— whether the incumbent or challenger—attempt to portray strong leadership qualities. And communication skills, or lack thereof, certainly play a large role in crafting an image of strong presidential leadership. During 2004, the centerpiece of Bush’s campaign was his post–9/11 leadership and the war on terror. Bush received consistent high marks in public opinion polls for his handling of the 9/11 attacks, although his numbers regarding Iraq were more volatile due to the failure to find weapons of mass destruction, the rising casualties, and the ongoing instability due to insurgent fighting. For Bush’s supporters, his regular verbal gaffes and misstatements, or his shifting rationale as to why American troops were in Iraq, did not seem to matter as much as the resolute brand of leadership he displayed in protecting Americans from further terrorist attacks. He and Kerry also seemed locked in a competition over who could display the most presidential machismo out on the campaign trail, an attempt by both candidates to provide voters (particularly male voters in swing states) with an image of strong, tough-guy leadership in the face of international uncertainty (a battle that Bush presumably won with his reelection victory).31 To go back to what Burns and Miroff have to say about leadership, especially about defining public values, embracing self-government, and engaging in an honest dialogue with citizens to achieve the democratic ideal, how has

130

Lori Cox Han

Bush fared? Crises give presidents unique opportunities to display leadership. Bush has probably done better in the public arena during his first four years in office due to not only the low expectations when he arrived, but also the desire for Americans to hear a strong message of leadership from their president in a time of national crisis. Presidential communication is an important aspect of leadership and governance, and there does not seem to be much of a learning curve in this area (presidents may become more comfortable in the public arena, but do not tend to improve their overall speaking skills once in office—what Americans see in the presidential election is basically what they get). Bush has had moments that played well in the press and with the public (for example, his impromptu comments with the aid of a bullhorn at “Ground Zero” in New York three days after 9/11), but his administration has not taken advantage of or redefined the rhetorical presidency nor set the standard for strong public leadership. Or has it? Americans still yearn for a transformational leader, especially in troubled, uncertain times, and every four years we hope to find one during the presidential election. Bush has been a consequential but not a transformational leader, in spite of the many challenges he has faced while in office. A troubled economy, a less-than-perfect strategy for the war in Iraq, and an incredibly divided electorate presented a formidable obstacle to overcome during the 2004 campaign (yet he did win reelection), and presents a difficult terrain for Bush to maneuver in terms of successful leadership during his second term. But can anyone really lead in this political environment, which is an environment imposed on Bush by 9/11 yet shaped by his divisive actions? Is there a leader out there who can possess the right mixture of public style and policy substance? Is there a transformational leader among us who can reshape the current public debate, to move away from the emphasis on personality, image, and money in American politics and instead engage citizens on those issues in the best interest of the public good? There may be, but we did not find that leader in 2004, and Bush (or John Kerry, for that matter) may not really be to blame. If we try to judge Bush’s skills as a communicator based on past presidents, we come up with a record that pales in comparison to those of FDR, Kennedy, Reagan, and even Clinton. But we have to assume that something in Bush’s message resonated with enough voters to deliver his narrow reelection victory. While 9/11 changed everything for the Bush presidency, perhaps Bush’s style of communication has also changed a lot about how we should view presidential communication. Placing presidents into the categories of “good” versus “bad” communicators has always been too simplistic, but it is even more so now in this complicated political environment driven by a news industry that becomes more competitive with each passing year. By traditional standards, Bush is not a skilled communicator. But by looking at a new demographic of voters that seemed to appreciate the president’s simple style, particularly given the bitterness of the current partisan divide that plagues the nation, Bush’s performance can and should be viewed in a different light.

The President Over the Public

131

The presidential campaign in 2004 may be one of the toughest political environments that any incumbent president or challenger has faced in decades; there really is no previous presidential election to which it can be compared. The role of money, and the ability of special interests to shape the political debate, has surpassed nearly every other factor that comes into play in a presidential contest. We seem to have moved from party-centered politics during the early and mid-twentieth century to candidate-centered politics during the late twentieth century, to the money-centered politics of the 2004 presidential campaign (as witnessed by the impact of 527 groups). The partisan divide has caused both parties to focus on energizing their base as opposed to going after the moderate, undecided, middle-of-the-road voters. And that shaped the message from both the Bush and Kerry campaigns, leading to more negativity and character bashing as opposed to more detailed policy discussions. In the final weeks of the campaign, David Gergen chastised both candidates for “ducking and dodging tough questions” on the war in Iraq as well as domestic troubles, urging both to get specific about issues, engage in plain talk, and to level with the American people on how to solve the many policy problems facing the nation. While Bush’s direct and resolute campaign message about national security and values certainly contrasted with Kerry’s more thoughtful and nuanced discussion of foreign and domestic issues, Gergen points out one of the most pressing problems in our current electoral process—this political environment just does not provide a strong enough incentive for candidates, even if one happens to be the incumbent president, to talk frank with the American people about the issues that matter.32 Presidential campaigns, as well as the permanent-campaign style of governing, “invites smash-mouth politics [and] involves large doses of mealy-mouthed politics and a strong propensity to adopt slogans and address issues in abstract ways that offend nobody save, perhaps, detail-oriented public policy wonks and results-oriented public administration experts.”33

Conclusion: Is the Public Presidency Unconstitutional? In an update to his work, The Rhetorical Presidency, Tulis wrote in 1996, “in an important sense, all presidents are rhetorical presidents. All presidents exercise their office through the medium of language, written and spoken. Even brute power is expressed in words, through orders, through commands.” Tulis also outlined a new rhetorical strategy for presidents, one that encompasses public education and in which the president uses his rhetorical powers not to promote his own policy agenda per se, but holds other political actors within the constitutional order (particularly Congress, the deliberative body responsible for passing laws and best suited for developing the policy agenda) accountable.34 Encouraging more deliberative debate about important policy issues is certainly a laudable goal, and one to

132

Lori Cox Han

which all politicians, particularly presidents, should aspire. Then why has the public presidency in recent years moved us so far away from the ideals of the framers and a true deliberative democracy? And is this a threat to our constitutional government? The public presidency, as it currently operates in this mediated age of politics, is at odds with a deliberative democracy and keeps the president from playing a key role in leading the public to be more informed about important policy issues. Style matters more than substance, so there is not much incentive for a president to speak regularly about important public debates since mostly only those in attendance at the event, or perhaps a handful of political elites, will actually be listening. The current media environment also encourages negative news about politicians and the governing process, which alienates many citizens from wanting to take part in the deliberations. As Thomas Patterson has pointed out, the shift of a descriptive reporting style in recent decades to one that is more interpretive (which gives journalists, and not the political actors being covered, more control over the content of news) has contributed to the public’s dissatisfaction with our leaders and institutions, thereby making effective governance more difficult to achieve.35 Another impediment to a more effective deliberate democracy comes from the current divided electorate in that the voters are firmly grounded in their beliefs and cannot be persuaded through presidential rhetoric. As George C. Edwards points out, even those presidents who are charismatic face many obstacles and are frustrated in their attempts to lead the public, even though the “American political system provides presidents with strong incentives to increase their persuasive resources by seeking public support.” Rarely are presidents capable of changing public opinion on an issue—their attempts to lead the public fall on “deaf ears”—yet they persist in pursuing public strategies due to the routines of politics (going public is a presidential act, therefore presidents continue with the tradition); the need to preach to the converted (maintaining preexisting support in the face of opposition to policy changes); and influencing elites (while voters themselves may not change their attitudes through presidential rhetoric, the elite debate among journalists and other policymakers may be influenced).36 All of this, of course, shifts the debate of “going public,” a term first coined by Sam Kernell as a style of presidential leadership that includes “a class of activities that presidents engage in as they promote themselves and their policies before the American public.” The technological developments of the mass media in recent years have allowed presidents to go public more often, and with much greater ease. Recent trends also show that “the more recent the president, the more often he goes public.”37 Going public, however, is contradictory to some views of democratic theory, but is now practiced by presidents as a result of a weakened party system, split ticket voting, divided government, increased power of interest groups, and the growth of mass communication systems.38 But as Edwards suggests, one possible solution to bridging the current political divide is by “staying

The President Over the Public

133

private” as opposed to “going public”: When political leaders take their cases directly to the public, they often frustrate rather than facilitate building coalitions. Such positions are difficult to compromise, and there is less emphasis on providing benefits for both sides, allowing many to share in a coalition’s success and to declare victory . . . . Staying private is likely to contribute to reducing gridlock, incivility, and, thus, public cynicism and deserves a more prominent role in the president’s strategic arsenal.39

However, given the desire for most recent presidents to go public, whether or not they happen to be good at it, it is not now likely for a president to back away from that strategy given the institutional and political expectations for it to occur. A president, through the bully pulpit, can manipulate the American public through demagoguery and harm the delicate constitutional balance in our system of government. An excellent communicator, coupled with a time of crisis, can go beyond educating the public to dominate the political environment in a way that overshadows the importance of other political actors in the policymaking process. So, to return to the original question, yes, the public presidency can be dangerous to democracy. But, having said that, the mere possibility does not make it certain, and at least for contemporary American presidents, the current political environment makes it difficult and unlikely. While the bad news may be that we are far from the framers’ ideal of a deliberative democracy, the good news, if one can view it as such, is that this current political environment makes it nearly impossible for a president to run roughshod over the public as an out-of-control demagogue. Our two most recent presidents certainly illustrate that point. Instead of using his strong communication skills to educate and lead the public on issues that mattered, Clinton was most often forced to defend himself against not only a Republican agenda but also against political attacks for his personal misdeeds. Bush, on the other hand, has governed more like a parliamentary leader with stricter control over his party’s agenda, but has not used the bully pulpit to educate Americans and promote public discourse on important policy issues or change public attitudes. Instead, his rhetoric has only hardened voters’ opinions on most issues. While presidents may not have the power to lead the American public off the proverbial cliff with their spellbinding rhetoric, the lack of substance within the current political debate is nonetheless dangerous. As Frank Rich of the New York Times pointed out in the last week of the 2004 presidential campaign, “it’s possible for America to overdose on entertainment. No president has worked harder than George W. Bush to tell his story as a spectacle, much of it fictional, to rivet his constituents while casting himself in an unfailingly heroic light. Yet this particular movie may have gone on too long and have too many plot holes. It may have been too clever by half.”40 For at least 51 percent of the electorate in 2004, Bush was able to provide a strong image of leadership based on the need to protect Americans from further terrorist attacks.

134

Lori Cox Han

Though winning an election may signal one kind of success, Bush has failed in the most important role that a president must play—educating and leading the public for the good of the nation, and not the good of his or her party. This treacherous political environment, which Bush has contributed to during his first four years in office, makes it difficult to cross party lines, compromise, or make bipartisan coalitions, which is required absent a conclusive majority. Bush may have displayed agility as a leader to pass certain items on his agenda in this environment, but he has not been successful at educating the nation. To quote Bert Rockman, Bush must be reckoned a successful party leader but a failed national leader. In view of the unusual opportunities he was given to do what he said he would do—reduce the partisan distemper in Washington, create conditions of political civility, and promote national cohesion—his failure on these matters has been profound, but apparently also intended. The conditions of his accession and those of national crises created openings that were ignored. Bush did not come to office, as Reagan had, with an overt agenda and a reasonably clear victory. He came to office promising that he would be one kind of president, and he has very much been another.41

Bush’s communication strategy has also contributed to the divisiveness of the current political environment. His leadership style may differ greatly from Clinton, which some Americans view as a positive change for the presidency, but there have been negative consequences as well. According to Greenstein, Bush’s rhetorical manner, coupled with the content of those of his messages in which he asserts his determination to take such controversial actions as the intervention in Iraq, has produced a visceral aversion toward him for many American liberals, an antipathy that is widely shared elsewhere in the world. In a sense, Bush has proved to be a mirror image of Bill Clinton, who was as passionately disliked by some of Bush’s most fervent supporters and viewed very favorably by many of his opponents.42

The role of television and the 24-hour news cycle has certainly altered our view of presidential leadership in that we tend to expect more in terms of performance and entertainment, but we do not seem to have the patience to listen to a substantive message that informs and educates us as voters about important policy issues. The over-saturation of the mass media within our culture has shortened the American attention span, which is not good news for the political process or for our notion of a deliberative democracy. Even a skilled communicator like Bill Clinton had to compete with all of the other messengers through a variety of mediums, which often leaves the president looking like just another talking head. Perhaps our best safeguard against a president using the bully pulpit for unconstitutional means is the very nature of the complex political environment that our Constitution has created and allowed to develop and flourish for the past two hundred-plus

The President Over the Public

135

years. But informing and educating the American public, and engaging citizens in a substantive dialogue that contributes to the best that our democratic process has to offer, may be the toughest leadership challenge yet that future presidents will and must face.

Notes 1. For example, see Thomas E. Cronin and Michael A. Genovese, The Paradoxes of the American Presidency, 2nd ed. (New York: Oxford University Press, 2004), 62–3. See also Robert K. Murray and Tim H. Blessing, Greatness in the White House: Rating the Presidents from George Washington through Ronald Reagan, 2nd ed. (University Park, PA: Pennsylvania State University Press, 1994), and Arthur M. Schlesinger, Jr., “The Ultimate Approval Rating,” New York Times Magazine, December 15, 1996, 46–51. 2. See Peter G. Northouse, Leadership: Theory and Practice, 3rd ed. (Thousand Oaks: Sage Publications, 2004). Northouse outlines a variety of leadership theories that are applicable to understanding presidential leadership, including approaches that focus on traits, skills, styles, situations, and personality. 3. James MacGregor Burns, Leadership (New York: Harper & Row, 1978). 4. James MacGregor Burns, Transforming Leadership (New York: Atlantic Monthly Press, 2003), 29. 5. Bruce Miroff, Icons of Democracy: American Leaders as Heroes, Aristocrats, Dissenters, & Democrats (Lawrence: University Press of Kansas, 2000). 6. Ibid., 358. 7. Ibid. 8. David Gergen, Eyewitness to Power: The Essence of Leadership (New York: Simon & Schuster, 2000), 345–9. 9. David Zarefsky, “Presidential Rhetoric and the Power of Definition,” Presidential Studies Quarterly 34, no. 3 (September 2004): 607–19. 10. Jeffrey K. Tulis, The Rhetorical Presidency (Princeton, NJ: Princeton University Press, 1987), 28. 11. Ibid., 4–23. 12. Roderick P. Hart, The Sound of Leadership: Presidential Communication in the Modern Age (Chicago: University of Chicago Press, 1987), 212. 13. Ibid., 110. 14. Karlyn Kohrs Campbell and Kathleen Hall Jamieson, Deeds Done in Words: Presidential Rhetoric and the Genres of Governance (Chicago: University of Chicago Press, 1990), 1, 213–9. 15. Lori Cox Han, Governing From Center Stage: White House Communication Strategies during the Television Age of Politics (Cresskill, NJ: Hampton Press, 2001), 2. 16. Mary E. Stuckey, The President as Interpreter-in-Chief (Chatham, NJ: Chatham House, 1991), 1–3. 17. Steven E. Schier, “A Unique Presidency,” in The Postmodern Presidency: Bill Clinton’s Legacy in U.S. Politics, ed., Steven E. Schier (Pittsburgh: University of Pittsburgh Press, 2000). 18. E.J. Dionne, “The Clinton Enigma: Seeking Consensus, Breeding Discord,” in The Election of 2000, ed., Gerald Pomper (New York: Chatham House Publishers, 2001), 1–11.

136

Lori Cox Han

19. William C. Berman, From the Center to the Edge: The Politics and Policies of the Clinton Presidency (Lanham, MD: Rowman & Littlefield, 2001), 123. 20. Colin Campbell and Bert A. Rockman, “Introduction” to The Clinton Legacy (New York: Chatham House Publishers, 2001), ix. 21. George C. Edwards III, “Campaigning Is Not Governing: Bill Clinton’s Rhetorical Presidency,” in The Clinton Legacy, Colin Campbell and Bert A. Rockman, eds. (New York: Chatham House, 2000), 34–5. 22. Ibid., 44. 23. Gary L. Gregg II, “Dignified Authenticity: George W. Bush and the Symbolic Presidency,” in Considering the Bush Presidency, Gary L. Gregg II and Mark J. Rozell, eds. (New York: Oxford University Press, 2004), 88. 24. See David A. Crockett, “George W. Bush and the Unrhetorical Rhetorical Presidency,” Rhetoric & Public Affairs 6, no. 3 (2003): 465–86. 25. Gregg, Dignified Authenticity, 105. 26. Bert A. Rockman, “Presidential Leadership in an Era of Party Polarization— The George W. Bush Presidency,” in The George W. Bush Presidency: Appraisals and Prospects, Colin Campbell and Bert A. Rockman, eds. (Washington: CQ Press, 2004), 351. 27. Fred I. Greenstein, “The Leadership Style of George W. Bush,” in The George W. Bush Presidency: An Early Assessment, ed., Fred I. Greenstein (Baltimore: Johns Hopkins University Press, 2003), 7. 28. While Bush received some initial negative coverage from the press and battled with former president Bill Clinton for headlines in his first several weeks in office, the continuing coverage of Clinton’s problems (controversial pardons, missing items from the White House, etc.) provided a positive contrast for Bush in highlighting the differences in their leadership styles and personalities. See Lori Cox Han and Matthew J. Krov, “Life after the White House: The Public Post-Presidency and the Development of Presidential Legacies,” in In the Public Domain: Presidents and the Challenge of Public Leadership, Lori Cox Han and Diane J. Heith, eds. (Albany: State University of New York Press, 2005). 29. George C. Edwards III, On Deaf Ears: The Limits of the Bully Pulpit (New Haven: Yale University Press, 2003), ix. 30. Greenstein, “The Leadership Style of George W. Bush,” 15. 31. See Jill Lawrence and Judy Keen, “Election Is Turning into a Duel of the Manly Men,” USA Today, September 23, 2004, 1A; and “Lexington: It’s a Man’s World,” The Economist, August 7, 2004, 28. 32. David Gergen, “Questions without Answers,” U.S. News and World Report, October 4, 2004, 64. 33. John J. Dilulio, Jr., “A View from Within,” in The George W. Bush Presidency: An Early Assessment, ed., Fred I. Greenstein (Baltimore: Johns Hopkins University Press, 2003), 257. 34. Jeffrey K. Tulis, “Revising the Rhetorical Presidency,” in Beyond the Rhetorical Presidency, ed., Martin J. Medhurst (College Station, TX: Texas A&M University Press, 1996), 3, 10–14. 35. Thomas E. Patterson, “Bad News, Bad Governance,” Annals of the American Academy of Political and Social Science 546 (July 1996): 97–108. 36. Edwards, On Deaf Ears, 241–6. 37. Samuel Kernell, Going Public: New Strategies of Presidential Leadership, 3rd ed. (Washington, DC: CQ Press, 1997), ix.

The President Over the Public

137

38. See both Kernell and Richard Rose, The Postmodern President (Chatham, NJ: Chatham House Publishers, 1991), 132. 39. Edwards, On Deaf Ears, 253–4. 40. Frank Rich, “Decision 2004: Fear Fatigue v. Sheer Fatigue,” New York Times, October 31, 2004, Sec. 2, 1. 41. Rockman, “Presidential Leadership in an Era of Party Polarization,” 353. 42 Fred I. Greenstein, The Presidential Difference: Leadership Style from FDR to George W. Bush, 2nd ed. (Princeton: Princeton University Press, 2004), 207.

This page intentionally left blank

Chapter Seven Who Makes U.S. Foreign Policy? Presidential Leadership in Gulf Wars I and II Meena Bose

One year after the terrorist attacks of September 11, 2001, President George W. Bush addressed the General Assembly of the United Nations (UN), and declared that the relevance of the international organization in the twentyfirst century would depend on how it responded to the repeated failure of Iraq to comply with arms inspections. A few weeks later, the Bush administration secured a congressional resolution authorizing the use of force to institute “regime change” in Iraq. The UN Security Council followed in November with a fully unanimous resolution authorizing “serious consequences”1 in Iraq if it did not permit inspections for weapons of mass destruction (WMD). Yet when the United States invaded Iraq in March 2003, UN support had disappeared, with several Security Council members criticizing the United States for taking military action without a second resolution explicitly authorizing force. Both the war and the ongoing reconstruction in Iraq thus represent largely unilateral policy making by the Bush administration. In contrast, the George H.W. Bush administration waged the first Gulf War in 1991 with multilateral support, both internationally and domestically. In November 1990, the United States secured a near-unanimous resolution from the UN Security Council to support the use of force to remove Iraqi forces from Kuwait if Saddam Hussein did not withdraw them by midJanuary 1991. Days before the invasion, Congress followed suit with a joint resolution authorizing the use of force against Iraq. Although President Bush (41) asserted that he did not require congressional or international approval before taking action, he nevertheless instructed his advisory team to seek such support. This chapter compares the efforts of the two Bush administrations to secure multilateral support for war against Iraq. It specifically addresses the question of why the United States succeeded in building an international coalition authorizing the use of force in 1990, but was unable to do so through the UN Security Council in 2003. In so doing, the chapter examines the president’s power to make foreign policy independent of international

140

Meena Bose

support and the consequences of that power for American democracy. It also considers how effectively the constitutional system of checks and balances serves to circumscribe the president’s power in foreign policy, concentrating especially on the role of Congress. Finally, the chapter analyzes the UN’s role in American foreign policy, particularly with respect to matters of international peace and security. In the twenty-first century, as the United States works with other nations to advance its foreign policy interests, scholars and policy makers alike need to understand how the United States can build international coalitions most effectively. The debates preceding the two Gulf Wars provide promising case studies for several reasons. First, in both cases the United States clearly sought legitimacy multilateral through support for its proposals, despite statements by U.S. officials that such approval was not constitutionally necessary for action. Second, top policy makers in both cases played the leading role in building a coalition, with Secretaries of State James A. Baker III in 1990 and Colin Powell in 2002–2003 representing the U.S. delegation at the UN. Finally, the two cases focus on a strategically important U.S. and international interest, namely, the need to maintain stability in the Middle East. During the Cold War, conflict between the United States and the Soviet Union largely blocked international cooperation through the UN. But with the end of the cold war, U.S.-Soviet cooperation in the first Gulf War appeared to mark a new era for the UN in international security. Evaluating the potential effectiveness of the UN in conflict resolution is especially timely today, given the 2002 query of President Bush (43), “Will the United Nations serve the purpose of its founding, or will it be irrelevant?”2 In 1990–1991, the combination of presidential commitment to a multilateral effort, as well as sustained policy negotiations by the president’s advisory team at the UN, fostered Security Council endorsement of U.S. proposals. But in 2002–2003, presidential support for UN authorization was less firm, and the president’s advisory team was more divided about the desirability of such support. The second Bush administration was more inclined to act unilaterally, which increased the difficulty of building an international coalition through the UN. The Bush (43) administration did succeed more quickly in gaining congressional support for its actions, thus engaging in cooperative decision making domestically, if not internationally. Even here, though, the congressional resolution seemed to result more from legislative deference to the executive in the global war on terror rather than from presidential cultivation of Congress’s concerns. The chapter begins by examining the scholarly literature on the American presidency that evaluates presidential power in foreign policy making. In so doing, it concentrates on Richard E. Neustadt’s classic analysis of a president’s constituencies as well as Aaron Wildavsky’s “two presidencies” thesis. We then turn to the Iraq negotiations in 1990–1991, evaluating the United States’ success in gaining passage of UN and congressional resolutions supporting the use of force against Iraq. Next we evaluate the

Who Makes U.S. Foreign Policy?

141

contrasting case of initial congressional and Security Council support for action against Iraq in 2002, followed by the Council’s refusal in 2003 to support a second resolution authorizing the use of force. We conclude by discussing the conditions that permit for effective presidential cooperation with domestic and international actors to promote international peace and security.

Presidential Power in Foreign Policy Making The American political system is described as having a separation of powers, but Richard E. Neustadt aptly writes that in fact the Framers “created a government of separated institutions sharing powers.”3 From making Cabinet appointments to passing legislation, the Constitution requires the president and Congress to work together in policy making. In addition to Congress, the president also must consider other constituencies: executive officials, political party members, public opinion, and foreign audiences.4 Although the last constituency does not elect the president, it plays a significant role in U.S. foreign policy making, particularly in building alliances with other nations. Neustadt argues that to exercise power, a president must be able to persuade these constituencies—though, of course, not all of them in every case—of the merits of the issue under consideration. Persuasion is a critical challenge for presidents because “no one else sits where he sits or sees quite as he sees; no one else feels the full weight of his obligations.”5 The structure of American politics thus is supposed to ensure that a president cannot act unilaterally. Even with the development of the modern presidency, which instituted more resources and opportunities to exercise authority, the president must be steadfast in pursuing a policy agenda from initiation to implementation. Fred I. Greenstein describes the powers of the modern presidency as “double-edged,” because each presents new expectations for presidential leadership.6 In foreign policy, however, presidents typically enjoy more freedom of action, or at least political deference, than in domestic policy. Aaron B. Wildavsky’s classic “two presidencies” thesis holds that the president is more successful in directing foreign policy than domestic policy because Congress and the public expect executive leadership in international affairs. While Wildavsky’s thesis raises many questions about measuring political support and identifying domestic versus foreign policy issues, it nevertheless remains at least broadly persuasive. Both in the Cold War era and in the aftermath of the September 11, 2001 terrorist attacks, the need for presidential initiative in foreign policy seems evident from a security, if not a constitutional, perspective.7 In examining presidential leadership for the two Gulf Wars, this chapter evaluates the relevance of these two models of presidential power in the

142

Meena Bose

twenty-first century. Both analyses were published during the Cold War, a time when presidential leadership in foreign policy was largely unchallenged, especially before the escalation of the Vietnam War. The post–9/11 world raises similar expectations, but the passage of the War Powers Resolution over President Richard M. Nixon’s veto in 1973 resurfaced Congress’s role in foreign policy by restricting the president’s ability to send troops abroad for extended periods without legislative approval. Although every president from Nixon onward has disagreed with the limitations of the War Powers Resolution, they nevertheless have been more attentive to cultivating their constituencies before taking controversial action in foreign affairs. Studying presidential decision making on the two Gulf Wars can illustrate the persuasiveness of Wildavsky’s “two presidencies” thesis today as well as the applicability of Neustadt’s argument about persuading a president’s constituencies.

U.S.–U.N. Negotiations Pre–Gulf War I In examining the debates in the fall of 1990 about how to respond to Iraq’s invasion of Kuwait, President Bush’s (41) professional background and approach to foreign policy, help explain the administration’s decision to secure a Security Council resolution authorizing the use of force against Iraq. President Bush supported the passage of such a resolution, and Secretary of State James A. Baker III led the effort to procure this resolution. With such strong administration support, the United States developed sufficient leverage to make a strong case with other Security Council member states for the resolution. The passage of the resolution in November 1990 marked the first example of post–Cold War coalition building between the United States and Soviet Union, as well as their respective allies, to promote international security. On August 2, 1990, Iraqi forces invaded Kuwait and soon took control of the small nation. The Bush administration issued a statement calling for “the immediate and unconditional withdrawal of Iraqi forces,” though the president told reporters the morning after the invasion that “we’re not considering intervention.”8 As a former U.S. Ambassador to the UN in the Nixon administration, Bush was sharply sensitive to how the international organization would respond to the invasion. As he recalls in his memoirs, While I was prepared to deal with this crisis unilaterally if necessary, I wanted the United Nations involved as part of our first response, starting with a strong condemnation of Iraq’s attack on a fellow member. Decisive U.N. action would be important in rallying international opposition to the invasion and reversing it.9

Upon learning that the Security Council had condemned the invasion and called for Iraq’s withdrawal in Resolution 660, Bush advised his ambassador

Who Makes U.S. Foreign Policy?

143

to the UN, Thomas W. Pickering, to make sure the Council followed through with stronger action. Three days later, the president himself established the U.S. position on the invasion, famously stating to reporters, “This will not stand, this aggression against Kuwait.”10 With strong endorsement from the United States, the Security Council subsequently voted unanimously (with two abstentions from Cuba and Yemen) in Resolution 661 to issue economic sanctions against Iraq.11 Secretary of State Baker and U.S. Ambassador Pickering worked carefully to build support among Security Council members for this resolution, thus illustrating the administration’s commitment to building multilateral support for condemning, and seeking to reverse, the Iraqi invasion. As Baker recalls in his memoirs, The resolution effectively ordered a total embargo on all commercial dealings with Saddam and his puppet government in Kuwait. It was the first step in our strategy not only to isolate Iraq diplomatically but also to apply a stranglehold to its economy.12

From the beginning, the Bush administration maintained that the United States had the right to take action, economic or military, against Iraq under Article 51 of the UN Charter, which explicitly permits retaliation if a UN member state is attacked. As Article 51 states, Nothing in the present Charter shall impair the inherent right of individual or collective self-defence [sic] if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.13

British Prime Minister Margaret Thatcher in particular urged Bush to bypass the Security Council, insisting that seeking UN approval for sanctions would set a precedent for UN approval of military force, if needed. But while the Bush administration maintained that under international law it could proceed unilaterally, it decided that politically, a coalition was needed to defeat Saddam Hussein effectively. As Baker put it, “Otherwise we’d never attract the breadth of support to convince Saddam he was confronting the entire civilized world, not just a single power he might be able to demonize. . . . The credibility of our cause would be suspect.”14 In the following weeks, the United States continued to build a coalition in favor of removing Iraq from Kuwait, working through the Security Council as well as with individual allies. The president himself led the effort, personally calling more than 120 heads of state in the days after the Iraqi invasion. Because of Bush’s extensive prepresidential foreign policy experience—U.S. ambassador to the United Nations in the Nixon administration, chief U.S. liaison to China and director of the Central Intelligence Agency in the Ford administration—he knew many of his counterparts well. As one White House aide says, “These were extraordinary relationships that he had

144

Meena Bose

carefully built and cultivated and that I think many of his foreign policy successes were based on.”15 Bush himself stresses the importance of personal diplomacy, writing that “I was fortunate; I had known many of the current leaders for years, often before they took office, and that would help strengthen trust.”16 By early September, the Security Council had passed several resolutions on Iraq, calling for economic sanctions, freeing of hostages, and restoration of Kuwait’s rulers, among other objectives. The United States supported all of these resolutions, but administration officials became increasingly convinced that military force would be required to force Iraq’s withdrawal from Kuwait. The president’s resolve to do so with international support remained steadfast. On September 11, 1990, Bush addressed a joint session of Congress to discuss the situation in Iraq. In discussing U.S. objectives in the region, he stated the following: We stand today at a unique and extraordinary moment. The crisis in the Persian Gulf, as grave as it is, also offers a rare opportunity to move toward an historic period of cooperation. Out of these troubled times, our fifth objective—a new world order—can emerge: a new era—freer from the threat of terror, stronger in the pursuit of justice, and more secure in the quest for peace . . . .A world where the rule of law supplants the rule of the jungle. A world in which nations recognize the shared responsibility for freedom and justice. A world where the strong respect the rights of the weak.17

The “new world order” represented the end of the bipolar conflict of the Cold War and a commitment to an international alliance that included the Soviet Union to achieve U.S. goals for international peace and security in the post–Cold War era. As Bush later recalled, “The Gulf crisis was the first test of this new world we sought, and the stakes were high.”18 In his speech, Bush also credited the UN for contributing to this new world order through the five resolutions it had passed opposing Iraqi aggression, saying, “We’re now in sight of a United Nations that performs as envisioned by its founders.”19 Although Bush reiterated that “we will not let this aggression stand,”20 he did not focus in this speech on using military force against Iraq. By early October, however, several of Bush’s advisers were arguing for the need to prepare for military action, and the president himself appeared to share that view. At a private Oval Office meeting with National Security Adviser Brent Scowcroft, Secretary of Defense Dick Cheney, and Chairman of the Joint Chiefs of Staff Colin Powell, Bush questioned whether containment of Saddam Hussein through sanctions would work.21 Scowcroft recalls that “somewhere in early to mid-October, President Bush came to the conclusion, consciously or unconsciously, that he had to do whatever was necessary to liberate Kuwait and the reality was that that meant using force.”22 Bush agrees in his joint memoirs with Scowcroft that “Brent is probably correct.”23

Who Makes U.S. Foreign Policy?

145

Upon making his decision, Bush sought to gain both congressional and UN support for the policy change, facing challenges on both fronts. He met with congressional leaders on October 30, who strongly urged him to give sanctions time to work. But on that very same day, Bush met with Baker, Cheney, Scowcroft, and Powell, and approved the request of General Norman H. Schwarzkopf, commander of U.S. forces in the Middle East, to double those forces. On November 8, Bush announced that the United States would increase troops in the region (amounting to 200,000 more soldiers, though Bush did not use specific figures in his announcement) “to ensure that the coalition has an adequate offensive military option should that be necessary to achieve our common goals.”24 Because of strong opposition within Congress, the Bush administration decided not to seek a special session calling for a resolution of support at the time, and Bush assured congressional leaders that he had not made a decision on using force: “I have not crossed any Rubicon.”25 In the international arena, Bush remained steadfast in his desire for having the UN endorse the use of force against Iraq, despite opposition from close allies such as British Prime Minister Thatcher, who was concerned that the time needed for gaining a resolution might weaken the international coalition. But Bush maintained that “it was better politically to work through the UN rather than to act on our own,” even though he believed the United States “certainly had the authority under the existing resolutions to act.”26 Bush charged Secretary of State Baker with the responsibility of gaining support from Security Council members for a UN resolution explicitly authorizing the use of force, if necessary, in Iraq. Although Baker, like Powell, initially had seemed more supportive of containment than military engagement of Iraq, he moved rapidly to implement the president’s policy in the Security Council. As he writes in his memoirs, “The President agreed it [a UN resolution] was a risk worth pursuing. It was my task to sell that resolution—to the Security Council as well as to our coalition partners.”27 To do so, Baker pursued “shuttle diplomacy” in early November, visiting twelve countries on three continents in 18 days. During this time, he met personally with each of his 14 counterparts on the Security Council, as well as with other members of the military coalition that the United States had developed over the past few months. The Bush administration faced a strict timetable, as the United States chaired the Security Council in November, but then the chairmanship which rotated monthly among members, would pass to Yemen, a country that had long declared its support of Iraq. Thus, Baker’s diplomacy needed to achieve a tangible result by November 30, 1990.28 In the Middle East, Baker traveled to Bahrain, Saudi Arabia, and Egypt, garnering support from each nation, including Saudi permission to deploy 200,000 additional U.S. troops in the country immediately. Among Security Council permanent members, Baker faced the most difficulty with China, which supported continuation of sanctions, but indicated that it would not veto a resolution authorizing force against Iraq. Soviet General Secretary

146

Meena Bose

Mikhail Gorbachev also was noncommittal on the resolution, but appeared more supportive than the Chinese. France and Great Britain had some reservations about the necessity of the resolution, but agreed to support the United States. Other Security Council members, including Ivory Coast, Ethiopia, Zaire, Romania, and Malaysia, ultimately promised their endorsement as well.29 On November 29, 1990, 12 of the Security Council’s 15 members voted to pass Resolution 678, which called for Iraq to withdraw its troops from Kuwait by January 15, 1991. If Iraq did not do so, then the Security Council granted member states the right to “use all necessary means . . . to endorse international peace and security in the area.”30 This resolution marked the first post–Cold War authorization of war by the Security Council; the only previous such resolution passed with the onset of the Korean War in 1950, when the Soviet Union was boycotting the Security Council to protest its failure to recognize communist China. Forty years later, the Soviet Union voted with the United States, and only two countries, Cuba and Yemen, opposed the Iraq resolution. China abstained from the vote but did not use its veto. Bush credited Baker and Pickering for passage of the resolution, writing, “I felt a huge burden had been lifted from my shoulders. [The resolution] eased some of the problems of coalition maintenance and resolved the debate about the need for provocation before we could act.”31 The Bush administration’s success in gaining a Security Council resolution authorizing the use of force against Iraq represented the highest achievement of Bush’s aims for a “new world order.” As noted earlier, the administration had insisted that it did not legally require a UN resolution to take military action against Iraq—Scowcroft later wrote that “The UN provided an added cloak of political cover . . . .We sought that resolution in order to settle doubts and to keep the Soviets on board.”32 Still, the passage of the resolution illustrated the administration’s commitment to working through the UN to achieve its goals. With the unwavering support of the president, the U.S. team at the UN, led by Secretary of State Baker, was able to build consensus among the overwhelming majority of Security Council members. Even after the Gulf War, Bush continued to recognize the legitimacy that the UN resolution had conferred. Asked in 1994 why he did not order the removal of Saddam Hussein in 1991, Bush replied, “Let me tell you, if we’d gone beyond the UN resolution, the coalition would have instantly fallen apart.”33 In addition to the UN resolution, the Bush administration also succeeded in gaining congressional support for using force against Iraq, though it came much later, on January 12, 1991, just four days before the war began. The president requested the resolution, but he did not consider it necessary for him to take action; as he later wrote, “Even had Congress not passed the resolutions I would have acted and ordered our troops into combat. . . . I was comfortable in my own mind that I had the constitutional authority.”34 The resolution passed largely along party lines in both chambers, as the Democratic leadership in Congress opposed it. The final Senate vote

Who Makes U.S. Foreign Policy?

147

of 52–47 included ten Democrats who supported the resolution and two Republicans who opposed it. In the House, the final vote of 250–183 included 86 Democrats in support and three Republicans (plus one Independent) opposed.35 Public opinion was more consistently supportive of the president from the time Iraq invaded Kuwait in the summer of 1990 through the war in 1991. In fact, after the war ended, President Bush (41) experienced the highest job approval ratings ever recorded for a president up to that time, 89 percent—a figure surpassed only by President George W. Bush (43) in September 2001.36 In his speech to the nation on February 27, 1991 the president credited U.S. troops and the international coalition, stating “This is a victory for the United Nations, for all mankind, and for what is right.”37 Privately, he declared, “We’ve kicked the Vietnam syndrome.”38 Victory in six short weeks suggested that the American public’s post–Vietnam aversion to sending troops abroad might be dissipating, at least for conflicts of limited duration. The first Bush administration, then, largely succeeded in persuading the president’s many constituencies to support the first Gulf War. The international community united behind the goal of forcing Saddam Hussein to withdraw from Kuwait, and Congress, public opinion, the president’s party, and executive officials endorsed action as well. Despite the narrow margin of victory in the Senate, the “two presidencies” thesis also is plausible, as the administration did succeed in getting a congressional resolution authorizing military action before the war began. The international coalition and domestic approval illustrate the president’s multilateral leadership.

U.S.-U.N. Negotiations Pre–Gulf War II Twelve years after Bush (41) left office, the George W. Bush administration led a second war against Iraq. Yet the two events were quite different in their objectives and the pursuit thereof. In 1991, the United States responded to a blatant violation of international law; in 2003, the United States initiated war in anticipation of future aggression. In the months leading up to the first Gulf War, the United States succeeded in building an international coalition through the Security Council, which, in turn, ultimately prompted domestic support from Congress. In the months preceding the second Gulf War, the United States won congressional support first and initially secured a unanimous Security Council resolution supporting its objectives, but then failed to garner support for a second resolution explicitly authorizing the use of force. U.S. policy making on Iraq in 2002–2003 reveals a president less engaged in international diplomacy than his father, and an advisory team that seemed largely decided on taking military action with or without multilateral support. In the period between the first and second Gulf Wars, the UN Security Council passed 17 resolutions that sought the removal of WMD in Iraq.39

148

Meena Bose

Time after time, Saddam Hussein initially promised compliance but then failed to cooperate with inspectors. The Iraqi leader also continued to seek retaliation against the United States for its Gulf War victory, even attempting to assassinate former president Bush in 1993.40 The Clinton administration launched air strikes in retaliation, but the Iraqi regime still flouted UN resolutions. Consequently, in September 1998, Congress passed the Iraq Liberation Act, which called for removing Saddam Hussein and instituting democracy in Iraq but did not authorize the use of military force.41 Three months later, Saddam Hussein forced UN inspectors to leave the country, and the Clinton administration again responded with air strikes in Operation Desert Fox. Yet the UN inspections regime was unable to reenter Iraq.42 When the Bush administration entered office in 2001, it did not focus on Iraq, or indeed on foreign policy, as a top priority. Bush had campaigned on a platform of restricting U.S. involvement in world affairs, famously stating in a debate with then vice president Al Gore that “I don’t think our troops ought to be used for what’s called nation-building.”43 In the same debate, Bush pointed out that Saddam Hussein was “a danger” in the Middle East, but he did not offer a policy proposal beyond “It’s going to be important to rebuild that coalition [that united against Hussein in the 1991 Gulf War] to keep the pressure on him.”44 Condoleezza Rice, who would become Bush’s national security adviser, wrote in Foreign Affairs during the 2000 campaign that U.S. troops should not become the “world’s 911.”45 While Rice stated that Saddam Hussein must step down before the situation in Iraq could change, she, too, did not offer a specific recommendation beyond the need for the United States to “mobilize whatever resources it can, including support from his opposition, to remove him.”46 Bush’s inaugural address devoted only a few sentences to foreign policy, noting that “we will confront weapons of mass destruction,”47 but not explaining how this goal would be achieved. The administration’s attention to foreign policy pivoted sharply after the terrorist attacks of September 11, 2001. Some observers suggested that the president’s guiding principles in global politics crystallized in response to the attacks, albeit consistently with Bush’s instincts in the area.48 While the administration initially concentrated on routing terrorist cells in Afghanistan, its focus soon expanded to include Iraq, a nation that several officials, including the president, considered at least partly responsible for the terrorist attacks.49 Of course, many of the president’s top advisers had called for stronger U.S. action against Iraq well before the administration took office. Paul Wolfowitz, who served as an undersecretary of defense in the Bush (41) administration and became deputy secretary of defense in the Bush (43) administration, wrote in 1996 that “Iraq is not a sideshow; it’s about vital American interests,” and “Saddam is a convicted killer still in possession of a loaded gun—and it’s pointed at us.”50 Wolfowitz also wrote in 1997 that “a willingness to act unilaterally can be the most effective way of

Who Makes U.S. Foreign Policy?

149

securing effective collective action. In the present [Iraq] crisis we may have to act alone at first, or almost alone, because the international consensus is weak.”51 One year later, Wolfowitz and other Bush supporters—including Richard Armitage, Dick Cheney, Dov S. Zakheim, Richard Perle, and Donald Rumsfeld— wrote to then president Bill Clinton calling for the overthrow of Saddam Hussein.52 All of these advisers would go on to hold prominent posts in the second Bush administration, and after 9/11, the president began to consider their proposals more fully.53 The president publicly discussed his concerns about the Iraqi regime in his 2002 state of the union message, which immediately became known worldwide as the “axis of evil” speech. In this speech, Bush declared that North Korea, Iran, and Iraq “constitute an axis of evil, arming to threaten the peace of the world.” He identified Iraq in particular as “continu[ing] to flaunt its hostility toward America and to support terror.” Providing more specifics on Iraq’s actions than those of either of the other two countries, Bush elaborated thus: The Iraqi regime has plotted to develop anthrax, and nerve gas, and nuclear weapons for over a decade. This is a regime that has already used poison gas to murder thousands of its own citizens—leaving the bodies of mothers huddled over their dead children. This is a regime that agreed to international inspections—then kicked out the inspectors. This is a regime that has something to hide from the civilized world.

Although the president did not elucidate a specific plan for addressing the threat that Iraq posed, he did state that “all nations should know: America will do what is necessary to ensure our nation’s security.”54 In June 2002, Bush outlined more comprehensively the strategy he would pursue to ensure U.S. security against perceived threats from states like Iraq. At the United States Military Academy’s graduation ceremony, Bush announced that if necessary, the United States would initiate military action before an adversary acted, to preempt attacks on U.S. interests. As the president explained, “our security will require all Americans to be forwardlooking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives.”55 Three months later, the administration released its National Security Strategy, which further explained the role that preemption would play in the administration’s security arsenal.56 Together, Bush’s speeches and the 2002 National Security Strategy laid the groundwork for war against Iraq. On September 12, 2002, Bush addressed the UN General Assembly and called for the UN to support the use of force, if necessary, to secure “regime change” in Iraq. The president’s decision to seek UN support for military action in Iraq appeared to mark a shift in the administration’s view of international alliances; in its first two years, the Bush administration had pursued a policy of “assertive unilateralism” by withdrawing from several international agreements, such as the Kyoto treaty on environmental

150

Meena Bose

regulations, the International Criminal Court treaty, and the longstanding Anti-Ballistic Missile Treaty with the former Soviet Union.57 Yet on September 12, Bush declared that “my nation will work with the UN Security Council to meet our common challenge . . . . The Security Council resolutions will be enforced—the just demands of peace and security will be met—or action will be unavoidable. And a regime that has lost its legitimacy will also lose its power.”58 Much like his father, Bush recognized the role of the UN in building an international alliance to support U.S. military action.59 Over the next two months, Secretary of State Colin Powell led the effort to secure a UN resolution authorizing action against Iraq if Saddam Hussein did not cooperate with arms inspectors. On November 8, 2002, the Security Council unanimously passed Resolution 1441, which demanded once more that Iraq comply with the previous 16 resolutions calling for arms inspections to verify that Iraq had destroyed its WMD. The Security Council declared that Iraq was in “material breach of its obligations” and stated that this resolution marked “a final opportunity [for Iraq] to comply with its disarmament obligations.”60 The resolution granted Iraq 30 days to provide a full accounting of its programs to develop biological, chemical, and nuclear weapons, and UN inspection teams would have to enter Iraq to verify all information. Finally, if Iraq failed to comply with these demands, then it would “face serious consequences as a result of its continued violations of its obligations.”61 On the surface, then, the United States appeared to have accomplished its goal of securing an international coalition to depose Saddam Hussein. In fact, the 2002 coalition was much less secure than the 1990 alliance, even though the 2002 resolution passed without a single dissenting vote. First, in 1990 Security Council members agreed that Iraq had blatantly violated international law by invading Kuwait. In 2002, Security Council members were not uniformly convinced that the international community should take the initiative to remove Saddam Hussein from power—several states thought the UN’s focus should be foremost on reinstating the arms inspections. Second, the 1990 resolution explicitly authorized the use of force (“all necessary means . . . to endorse international peace and security”), while the 2002 resolution promised only “serious consequences” if Saddam Hussein refused to comply with inspectors. Finally, the first Bush administration sought UN support before requesting a congressional resolution authorizing the use of force against Iraq, while the second Bush administration actually secured a congressional resolution in October 2002, before the Security Council’s action.62 Thus, the Bush (43) administration did not place the same importance on the UN resolution as the Bush (41) administration, a distinction that would become highly significant in evaluating Iraq’s actions following the 2002 resolution. The unanimity following the November 2002 UN resolution on Iraq dissipated quickly. Former Clinton administration official James P. Rubin notes that “the unanimous passage of Resolution 1441 . . . had masked a number of major differences among key members of the UN Security Council.”63

Who Makes U.S. Foreign Policy?

151

Most importantly, the resolution did not address “the possibility that Saddam would partially comply with Resolution 1441.”64 In fact, Iraq did just that, submitting a grievously flawed report of its weapons program to the UN, but also permitting inspectors to enter the country and examine possible WMD sites. Consequently, the Bush administration could declare that Iraq had violated part of Resolution 1441, but it also needed to address the inspections undertaken by the UN, which many Security Council members viewed more optimistically than the United States. On January 28, 2003, Bush announced in his state of the union message that Iraq was in flagrant violation of Resolution 1441. As the president put it, “Almost three months ago, the United Nations Security Council gave Saddam Hussein his final chance to disarm. He has shown instead utter contempt for the United Nations, and for the opinion of the world.”65 Bush went on to detail Iraq’s failure to comply with the resolution, focusing on evidence about Iraq’s WMD programs that contradicted the nation’s December report to the UN. In particular, Bush noted that Iraq was seeking to develop a nuclear weapons program.66 Consequently, Bush said, “If Saddam Hussein does not fully disarm, for the safety of our people and for the peace of the world, we will lead a coalition to disarm him.”67 To secure this coalition, Bush declared that Secretary of State Powell would present evidence of Iraq’s WMD programs and failures to comply fully with inspectors to the Security Council the following week. Powell’s February 5, 2003 presentation to the Security Council marked a final effort by the Bush administration to have the UN authorize military action against Iraq.68 This time, however, agreement, let alone unanimity, was not possible. Two members of the Security Council, France and Germany, insisted that inspectors should have more time to examine weapons facilities in Iraq. On February 14, inspectors reported that they had found no evidence of WMD to date. Three Security Council members, the United States, Great Britain, and Spain, still introduced a resolution declaring that “Iraq has failed to take the final opportunity afforded to it in Resolution 1441.”69 But other Security Council members, including U.S. allies such as Mexico and Chile, either were reluctant to voice their support, or rejected the resolution entirely. In particular, three of the five permanent members—France, China, and Russia—opposed the new resolution, and their veto power meant that even if the United States secured the required nine votes to pass the resolution, it still would be rejected. Consequently, the United States withdrew the resolution and proceeded to wage war in Iraq the following month without express UN sanction. The Bush administration was more successful in gaining domestic support for its Iraq policy. Just one month after Bush addressed the UN General Assembly in September 2002, Congress passed a resolution authorizing the president to use force against Iraq. The resolution declared that the president could “defend U.S. national security against the continuing threat posed by Iraq,” if he determined that “reliance on further diplomatic or peaceful means alone will not achieve the above purposes.”70 The bill

152

Meena Bose

passed by 296–133 in the House, with 215 Republicans and 81 Democrats supporting the resolution. In the Senate, 77 members voted for the resolution, including 48 Republicans and 29 Democrats. Congress thus gave the president much stronger bipartisan support than his father had received in 1991, perhaps in part because of the upcoming midterm elections, but also because of the heightened attention to national security after the terrorist attacks of September 11, 2001. As Senator Hillary Rodham Clinton (D-NY) stated in endorsing the resolution: I want this President, or any future President, to be in the strongest possible position to lead our country in the United Nations or in war . . . . I come to this decision from the perspective of a Senator from New York who has seen all too closely the consequences of last year’s terrible attacks on our Nation. In balancing the risks of action versus inaction, I think New Yorkers, who have gone through the fires of hell, may be more attuned to the risk of not acting. I know I am.71

Public opinion also supported the president: Gallup polls taken from October 2002 through early March 2003, just before the war began, consistently showed 52–56 percent approval “of the way George W. Bush is handling the situation in Iraq.”72 The narrow majority, however, suggested that the window of opportunity for action was limited, a point that the Bush administration keenly recognized. In the days before the war began, Bush held a summit meeting with allied leaders who supported military action in Iraq, including British Prime Minister Tony Blair, Spanish President Jose Maria Aznar, and Portugese Prime Minister Jose Manuel Durao Barroso, who hosted the summit. Bush told the group that delaying the war to continue UN negotiations would be fruitless, and perhaps even harmful to the cause. As he put it, “Public opinion won’t get better, and it will get worse in some countries like America.”73 The Bush (43) administration thus garnered support from many of the president’s constituencies, notably Congress and the public. Furthermore, the inability of the Bush administration to garner UN authorization to remove Saddam Hussein from power did not mean that the United States acted completely on its own internationally. Great Britain was a steadfast ally from the outset, and after the United States withdrew its Security Council resolution in March 2003, administration officials focused on the “coalition of the willing” who supported military action in Iraq, including many nations in Eastern Europe and Central Asia that had recently gained independence with the ending of the Cold War.74 Still, the 2003 Iraq war was clearly unilateral in that the United States initiated the policy of “regime change” and served as the primary enforcer. While the Bush (43) administration sought to follow the precedent of the Bush (41) administration in getting UN support, it was willing to act without such endorsement. As Bob Woodward writes, “Bush said he wanted an outcome—Saddam out and the weapons of mass destruction eliminated.

Who Makes U.S. Foreign Policy?

153

That was the goal, that was the commitment. The commitment was not to the U.N. process.”75 In this case, at least, the “relevance” of the UN was of little importance to the United States once the Security Council refused to support its actions.76

Conclusion The two Gulf War case studies illustrate significant differences in presidential foreign policy leadership. In the first Bush administration, the president was committed from the outset to working through the UN, if possible, to provide international legitimacy for forcing Saddam Hussein to withdraw his forces from Kuwait. Because of his own service as U.S. Ambassador to the UN as well as his wide-ranging foreign policy expertise, Bush (41) dedicated time and resources to building a coalition within the Security Council. His foreign policy team made the same investment because the president placed such high priority on this matter. In the second Bush administration, in contrast, the president did not have the same history of working with the UN as his father, and therefore was less determined to have UN authorization for U.S. actions in Iraq. Bush (43) attempted to garner UN support, but when a second resolution faltered, he did not hesitate to have the United States act independently of the UN in deposing Saddam Hussein.77 Domestically, however, Bush (43) was more committed to having a congressional resolution of support than his father, who publicly stated that such a resolution would be desirable but not necessary. The precedent of the 1991 congressional resolution may have factored into the decision-making calculus in 2002, just as the likelihood of getting such a resolution just one month before the midterm elections may have. Vice President Cheney, who also served as President of the Senate, advised Bush (43) to call for Congress to pass a resolution “so voters would know before the election where every congressman and senator stood on Saddam Hussein and his dangerous regime.”78 Bush himself told congressional leaders they had to act quickly: “The issue isn’t going away, you can’t let it linger.”79 Congressional and public support for both presidents suggests that Wildavsky’s “two presidencies” thesis continues to be plausible today. While the president’s constituencies may be reluctant to give their approval to the use of force, they are even more hesitant to forbid executive leadership, perhaps because of an underlying concern that the president may act anyway. In the first Gulf War, for example, “the public became increasingly convinced not that war was particularly wise, but that it was inevitable.”80 A president’s international constituencies, that is, foreign leaders, are important as well, but not always through the rubric of the UN, as the 2003 war led by the United States and the “coalition of the willing” indicates. Even with political support from domestic or international constituencies, then, the president’s role in making foreign policy remains paramount. Despite Neustadt’s pithy observation that the Constitution requires the

154

Meena Bose

executive branch to share power, in matters of war and peace, those who share power with the president typically grant the chief executive broad latitude of action. In foreign affairs at least, whether the president is dangerous to democracy may depend less on the structure of the American political system and more on the effectiveness of the president’s policy choices. Ultimately, a president’s political legacy will be most important in evaluating how appropriately he or she employed political power.

Notes 1. See “Text of UN Security Council Resolution on Iraq,” November 8, 2002, available at http://www.state.gov/p/nea/rls/15016.htm. Accessed January 28 , 2004. 2. George W. Bush, “President’s Remarks at the United Nations General Assembly,” September 12, 2002. Available at http://www.whitehouse.gov/ news/releases/2002/09/20020912–1.html. Accessed January 28, 2004. 3. Richard E. Neustadt, Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan (New York: Free Press, 1990), 29. Neustadt’s book originally was published as Presidential Power: The Politics of Leadership (New York: John Wiley & Sons, 1960). 4. Ibid., 8. 5. Ibid. 6. Fred I. Greenstein, “Toward a Modern Presidency,” in Leadership in the Modern Presidency, ed., Greenstein (Cambridge: Harvard University Press, 1988), 3. 7. Wildavsky’s article “The Two Presidencies” originally appeared in Trans-Action 4 (December 1966): 7–14. It is reprinted in Stephen A. Shull, ed., The Two Presidencies: A Quarter Century Reassessment (Chicago: Nelson-Hall Publishers, 1991). 8. Both quotations are from Bob Woodward, The Commanders (New York: Pocket Star Books, 1991), 203, 205. 9. George Bush and Brent Scowcroft, A World Transformed (New York: Vintage Books, 1998), 303. 10. Woodward, The Commanders, 206, 242. 11. Bush and Scowcroft, A World Transformed, 336. 12. James A. Baker III and Thomas M. DeFrank, The Politics of Diplomacy: Revolution, War, and Peace, 1989–1992 (New York: G.P. Putnam’s Sons, 1995), 283. 13. Charter of the United Nations, Chapter VII, Article 51. Available at http://www.un.org/aboutun/charter/. Accessed February 16, 2004. 14. Baker, The Politics of Diplomacy, 279. 15. Bobbie Greene Kilberg, quoted in Meena Bose and Rosanna Perotti, eds., From Cold War to New World Order: The Foreign Policy of George H.W. Bush (Westport, CT: Greenwood Press, 2002), 157. 16. Bush and Scowcroft, A World Transformed, 61.

Who Makes U.S. Foreign Policy?

155

17. George H.W. Bush, “Address before a Joint Session of Congress on the Persian Gulf and the Federal Budget Deficit,” September 11, 1990, in Public Papers of the Presidents: George H.W. Bush, 1990. Available at http://bushlibrary.tamu.edu/ papers/. Accessed February 16, 2004. 18. Bush and Scowcroft, A World Transformed, 370. 19. Bush, “Address before a Joint Session of Congress on the Persian Gulf and the Federal Budget Deficit,” September 11, 1990. Available at http://bushlibrary. tamu.edu/papers/. Accessed February 16, 2004. 20. Ibid. 21. Woodward, The Commanders, 8. 22. Bush and Scowcroft, A World Transformed, 382. 23. Ibid. 24. Woodward, The Commanders, 310. 25. Ibid., 312. 26. Both quotations are in Bush and Scowcroft, A World Transformed, 385. 27. Baker, The Politics of Diplomacy, 304. 28. Ibid., 304–5. 29. Ibid., 305–20. 30. Ibid., 327. 31. Bush and Scowcroft, A World Transformed, 415. 32. Ibid., 416. 33. Victor Gold, “George Bush Speaks Out,” The Washingtonian, February 1994, 40. 34. Bush and Scowcroft, A World Transformed, 446. 35. Ibid. Details of the House and Senate votes are available on the websites of the respective chambers, http://www.house.gov., and http://www.senate.gov. January 28, 2004. 36. See Appendix in Fred I. Greenstein, The Presidential Difference: Leadership Style from FDR to George W. Bush, 2nd ed. (Princeton: Princeton University Press, 2004), 264. Also see John Mueller, Policy and Opinion in the Gulf War (Chicago: University of Chicago Press, 1994) and Lawrence Freedman and Efraim Karsh, The Gulf Conflict 1990–1991 (Princeton: Princeton University Press, 1993). 37. Bush and Scowcroft, A World Transformed, 486. 38. The quotation is in Stanley Karnow, “Vietnam’s Shadow Lies across Iraq,” Los Angeles Times, September 26, 2003, B15. 39. Department of State Fact Sheet, “Security Council Resolutions Concerning Iraq,” November 8, 2002. [Excerpt from White House background paper “A Decade of Deception and Defiance.”] Available at http://www.state.gov/p/ nea/rls/01fs/14906.htm. Accessed March 8, 2004. 40. Richard N. Haass, Intervention: The Use of American Military Force in the Post—Cold War World, rev. ed. (Washington, DC: Brookings Institution Press, 1994), 37. 41. See Louis Fisher, “Deciding on War against Iraq: Institutional Failures,” Political Science Quarterly 118 (Fall 2003): 395. 42. Bob Woodward, Bush at War (New York: Simon & Schuster, 2002), 328; Philip Gourevitch, “The Optimist: Kofi Annan,” The New Yorker, March 3, 2003, 56. 43. Commission on Presidential Debates, Transcript of “The Second 2000 GoreBush Presidential Debate,” Wake Forest University, Winston-Salem, NC,

156

44. 45. 46. 47.

48.

49. 50. 51. 52.

53. 54.

55.

56.

57.

Meena Bose October 11, 2000. Available at http://www.debates.org/pages/ trans2000b. html. Accessed March 8, 2004. Ibid. Condoleezza Rice, “Promoting the National Interest,” Foreign Affairs (January/February 2000): 45. Ibid. George W. Bush, “Inaugural Address,” January 20, 2001. Available at http://www.whitehouse.gov/news/inaugural-address.html. Accessed March 8, 2004. Frank Bruni, “For President, a Mission and a Role in History,” New York Times, September 22, 2001, A1; Ivo H. Daalder and James M. Lindsay, “Bush’s Foreign Policy Revolution,” in The George W. Bush Presidency: An Early Assessment, ed., Fred I. Greenstein (Baltimore: Johns Hopkins University Press, 2003), 118–21. Also see Daalder and Lindsay, America Unbound: The Bush Revolution in Foreign Policy (Washington, DC: Brookings Institution Press, 2003). Daalder and Lindsay, “Bush’s Foreign Policy Revolution,” 127–8. Paul Wolfowitz, “Clinton’s Bay of Pigs,” Wall Street Journal, September 27, 1996, A18. Paul Wolfowitz, “Rebuilding the Anti-Saddam Coalition,” Wall Street Journal, November 18, 1997, A1. John Lancaster, “In Saddam’s Future, A Harder U.S. Line; Bush, Gore Depart from Clinton Policy,” Washington Post, June 3, 2000, A1. Also see Steven Mufson, “A World View of His Own; On Foreign Policy, Bush Parts Ways With Father,” Washington Post, August 11, 2000, A1. The letter was written by the Washington think tank The Project for a New American Century (PNAC), and is available at http://www.bushpresident2004.com/pnac.htm. Accessed January 4, 2005. Woodward, Bush at War, 83–5. All quotations in this paragraph are from George W. Bush, “State of the Union Address,” January 29, 2002. Available at http://www.whitehouse.gov/ news/releases/2002/01/20020129-11.html. Accessed March 8, 2004. For the drafting of this speech, see David Frum, The Right Man: The Surprise Presidency of George W. Bush (New York: Random House, 2003). George W. Bush, “Remarks by the President at 2002 Graduation Exercise of the United States Military Academy,” June 1, 2002. Available at http://www.whitehouse.gov/news/releases/2002/06/20020601–3.html. A ccessed March 8, 2004. George W. Bush, “The National Security Strategy of the United States of America,” September 17, 2002. Available at http://www.whitehouse.gov/nsc/ nss.html. Accessed March 8, 2004. For a comparison of the preemption doctrine with the UN Charter, see Madeleine Albright, “Misunderstood: Why the United Nations is Indispensable,” Foreign Policy (September/October 2003), 16. Graham Wilson, “Bush II and the World,” in The George W. Bush Presidency: Appraisals and Prospects, ed., Colin Campbell and Bert A. Rockman (Washington, DC: CQ Press, 2004), 303–4.

Who Makes U.S. Foreign Policy?

157

58. George W. Bush, “President’s Remarks at the United Nations General Assembly,” September 12, 2002. Available at http://www.whitehouse.gov/ news/releases/2002/09/20020912–1.html. Accessed March 9, 2004. 59. Bush’s decision to seek a UN resolution authorizing the use of force, if necessary, to remove Saddam Hussein from power may have been influenced partly by the views of his father’s top foreign policy officials, who published opinion pieces supporting U.S. diplomacy at the UN. See Brent Scowcroft, “Don’t Attack Saddam,” Wall Street Journal, August 15, 2002, A12; and James A. Baker III, “The Right Way to Change a Regime,” New York Times, August 25, 2002, Sec. 4 9. 60. The text of UNSC Resolution 1441 is available at http://www.un.int/usa/ sres-iraq.htm. Accessed March 9, 2004. 61. Ibid. 62. Fisher, “Deciding on War against Iraq: Institutional Failures,” 407–8. 63. James P. Rubin, “Stumbling Into War,” Foreign Affairs (September/October 2003), 51. 64. Ibid. 65. George W. Bush, “State of the Union Address,” January 28, 2003. Available at http://www.whitehouse.gov/news/releases/2003/01/20030128–19.html. Accessed March 10, 2004. 66. Although this chapter does not examine whether the Bush administration misled the American public about Iraq’s nuclear weapons program, that topic has been hotly debated for the past several months. For a skillful analysis of the Bush administration’s review and discussion of competing intelligence reports on Iraq’s WMD program, see James P. Pfiffner, “Did President Bush Mislead the Country in His Arguments for War with Iraq?” Presidential Studies Quarterly 34 (March 2004): 4–25. 67. Ibid. 68. One year later, Powell admitted that some of the arguments that he made before the Security Council about Saddam Hussein’s possession of WMD were based on faulty intelligence. See “Powell: Some Iraq Testimony Not ‘Solid,’ ” CNN, April 3, 2004. Available at http://edition.cnn.com/2004/US/04/03/ powell.iraq/. Accessed January 4, 2005. 69. Michael J. Glennon, “Why the Security Council Failed,” Foreign Affairs (May/June 2003), 18. 70. See summary of H.J. Res. 114, which becomes Public Law 107–243, at http://thomas.loc.gov/cgi-bin/bdquery/z?d107: HJ00114:@@@L&summ2m&. Breakdown of party votes also available through this website. Accessed January 11, 2005. 71. Congressional Record, “Authorization of the Use of United States Armed Forces Against Iraq,” October 10, 2002, S10289–90. Available at http://thomas.loc.gov/ cgi-bin/query/F?r107:1:./temp/~r107cisRc6:e529536. Accessed January 11, 2005. 72. Data is available at http://www.gallup.com/poll/content/?ci14566. Accessed January 11, 2005. 73. Bob Woodward, Plan of Attack: The Definitive Account of the Decision to Invade Iraq (New York: Simon & Schuster, 2004), 357. 74. Just days before the 2003 Gulf War began, Secretary of State Colin Powell used the phrase “coalition of the willing” in reference to the 30 or so nations that sup-

158

75. 76.

77.

78. 79. 80.

Meena Bose ported the United States on Iraq. See Steve Schifferes, “U.S. Names ‘Coalition of the Willing,’ ” BBC News Online in Washington, March 18, 2003. Available at http://news.bbc.co.uk/1/hi/world/americas/2862343.stm. Accessed January 11, 2005. Woodward, Plan of Attack, 180. For an optimistic assessment of the UN’s role in future military operations, despite the dissension on Iraq, see “The United Nations and Iraq: Irrelevant, Illegitimate, or Indispensable?” The Economist, February 22, 2003, 24–6. Two articles that discuss how the United States can recover from its 2003 dispute at the UN are Madeleine Albright, “Fighting the Wrong War,” Foreign Affairs (September/October 2003): 2–19; and Ronald Asmus, “Rebuilding the Atlantic Alliance,” Foreign Affairs (September/October 2003): 20–31. The continuing importance of the UN to the United States is discussed in Shashi Tharoor, “Why the U.S. Needs the UN,” Foreign Affairs (September/October 2003): 67–80. Woodward, Plan of Attack, 168. Ibid., 170. Mueller, Policy and Opinion in the Gulf War, xv.

Chapter Eight The President as King: The Usurpation of War and Foreign Affairs Powers in the Modern Age David Gray Adler

Monarchical conceptions of power in seventeenth-century England, anchored in the theory of High Prerogative, were characterized by sweeping claims to illimitable authority in matters of foreign and domestic affairs. Stuart kings, principally James I and Charles I, also adduced the Divine Right of Kingship as justification for, among other things, unilateral authority to commence war, to formulate and conduct the nation’s foreign affairs, to withhold information from Parliament involving national security concerns, as well as the power to detain subjects and deny them the benefit of a judicial hearing. English kings also contended that the courts could not review their judgments and decisions in matters of state. America’s backward march toward monarchism, characterized by presidential usurpation of warmaking and foreign affairs authority, and sweeping assertions of executive privilege, secrecy, immunity and prerogative powers, represents contempt for constitutionalism, republicanism, and the rule of law. Tocqueville glimpsed this state of affairs: “It is chiefly in its foreign relations, that the executive power of a nation finds occasion to exert its skill and strength. If the existence of the American Union were perpetually threatened, if its chief interests were in daily connection with those of other powerful nations, the executive would assume an increased importance.” But America in the 1830s belonged to a more tranquil age, far removed from the conflicts that colored Old Europe. Thus, “the President of the United States possesses almost royal prerogatives which he has no opportunity of exercising.”1 Although Tocqueville exaggerated the foreign affairs powers vested in the president by the Constitution, there seems little doubt in the premise that the Cold War, characterized by international crises and perpetual threats—real or imagined—unleashed the formidable executive powers foreshadowed in his commentary, powers which transformed the chief executive into what Arthur Schlesinger, Jr. aptly termed the “Imperial Presidency.”2

160

David Gray Adler

Although the imperial presidency emerged from a complex of aggressive claims of presidential authority, broad congressional delegations of power, friendly judicial opinions dating from the New Deal period, as well as scholarly promotions of a powerful executive, its most essential, most prominent, and most notorious characteristic was the presidential capture and control of powers that belong to Congress, including the usurpation of the war power. The cluster of foreign policy powers granted by the Constitution to Congress and, it may be usefully added, thus denied to the president, was nevertheless aggrandized by the executive. The treaty power and the critical role of the Senate in foreign policy were overwhelmed by presidential resort to executive agreements. Presidents increasingly claimed authority to withhold information from Congress on diplomatic, military and national security grounds. Covert actions became the norm; secrecy was triumphant, and publicity and openness—critical values in a constitutional democracy— were in a state of eclipse. The United States, it seemed, was marching backward—toward the personalization, magic and myth of a kingship. The imperial presidency took flight during the administrations of Lyndon Johnson and Richard Nixon, and it remains in full flight under the pilotage of George W. Bush. It never has been grounded. It remained aloft under Gerald Ford and Jimmy Carter, two presidents whose terms often are derided as disappointments or failures, and whose actions, even on their best days in office, it seemed, led to their characterization as “caretaker” presidents. Yet both abused the war power—Ford in the Mayaquez incident and Carter in the aborted effort to rescue American hostages in Iran.3 And Carter, it will be recalled, did not shrink from claiming unilateral authority to terminate treaties, a claim hardly consistent with the constitutional blueprint for foreign affairs.4 In the hands of more aggressive executives— Ronald Reagan, George H.W. Bush, and Bill Clinton—the embrace of unilateralism and the cacophony of capacious claims of presidential power were undeterred by constitutional restraints. There is, moreover, no evidence whatsoever that this trend will be curtailed. In President George W. Bush’s first term, the nation witnessed sweeping claims of unilateral executive powers that defied constitutional metes and bounds. Among other assertions, President Bush adduced a capacious and, indeed, a nearly illimitable unilateral presidential power to wage war, unilateral authority to terminate treaties and, in general, broad authority to formulate, shape, and govern American foreign policy and national security interests in his capacity as the nation’s “sole organ” of foreign affairs.5 In these claims, President Bush has predecessors; indeed, in spite of the fact that they are constitutionally indefensible, they have become a commonplace among occupants of the White House in the past half-century.6 Despite the relative banality of those claims, however, President Bush has retained a capacity for outrage. He has laid waste to the doctrines of separation of powers and checks and balances through his advocacy of an executive power to wage preemptive war. Moreover, in a claim reminiscent of the Stuarts’s absolutist pretensions, President Bush laid claim to an inherent executive power broad enough not

The President as King

161

only to detain American citizens indefinitely and to deny them rights guaranteed by the Bill of Rights, but one that is so far-reaching that it precludes judicial review of executive action.7 It should be recalled as well that Bush usurped congressional lawmaking powers and the Senate’s role in the appointment power,8 and that his administration pushed and cajoled Congress into passing the USA PATRIOT Act, a legislative package that represents a dramatic assault on First and Fourth Amendment rights as well as the right to privacy.9 With little sensitivity toward either constitutional or policy implications, the administration maintained, in a series of notorious memos, that President Bush was not bound by the Geneva Convention and its strictures on the treatment of detainees held at Guantanamo Bay. The president declared that he retained the authority to suspend the Geneva provisions.10 And the administration, it bears reminder, has not brooked criticism; indeed, various officials have sought to intimidate critics and characterize dissidents as “unpatriotic.” Criticism, it has been said, has served the cause of terrorism. Like its monarchical incarnation, the American presidency, it seems clear, represents a permanent threat to the Republic.11 Its frequent constitutional transgressions invite Chief Justice John Marshall’s rejoinder in Marbury v. Madison: “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?”12 Of course, we labor under no illusions that mere parchment will constitute an effective barrier against presidents determined to pursue policy and political goals at the expense of constitutional principles. Nevertheless, the arrogance and contempt for the Constitution and the rule of law exhibited by presidents have driven scholars to seek remedies; alas, solutions are yet unavailing. As a consequence, the scholarly fraternity has come to appreciate King Canute’s sense of futility. Still, there remains a fundamental need—one critical to the maintenance of the Republic—to ascertain a means by which we might halt the tides of power from washing away the moorings of the Constitution. Such an undertaking begins with understanding, particularly an informed understanding about the broad nature of presidential aggrandizement and usurpation of power.

Constitution and Foreign Affairs: A New Design The framers of the Constitution, it is familiar, rejected the monarchical model for the conduct of foreign policy, a design that emphasized executive unilateralism. James Wilson, second in importance to James Madison as an architect of the Constitution, supplied the rationale when he told delegates in Philadelphia that he “did not consider the prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war and

162

David Gray Adler

peace and c.” Wilson explained that the British model “was inapplicable to the situation of this country,” the “manners” of which were “so republican that nothing but a great confederated Republic would do for it.”13 The framers’ rejection of unilateral executive authority over foreign affairs reflected not only their deep-seated fear of presidential unilateralism, but also their commitment to collective decisionmaking and republicanism, the cardinal principle of which trumpeted the belief that the conjoined wisdom of the many is superior to that of one. The framers’ preference for collective decision making runs throughout those provisions of the Constitution that govern foreign policy. Thus, the Constitution assigns to Congress senior status in a partnership with the president for the purpose of conducting foreign policy. Article I vests in Congress broad, explicit, and exclusive powers to regulate foreign commerce, raise, and maintain military forces, grant letters of marque and reprisal, provide for the common defense, and initiate all hostilities on behalf of the United States, including full-blown war. As Article II indicates, the president shares with the Senate the treaty-making power and the authority to appoint ambassadors. The Constitution assigns only two foreign affairs powers to the president. He is designated commander in chief of the nation’s armed forces, although, as we will see, he acts in this capacity by and under the authority of Congress. The president also has the power to receive ambassadors, but the framers viewed this as a routine, administrative function, devoid of discretionary authority. This list exhausts the textual grant of foreign affairs authority to the president. The president’s constitutional powers are few and modest, and they pale in comparison to those of Congress. Of course some foreign affairs powers are not mentioned in the Constitution. For example, the Constitution is silent on the repository of authority to negotiate treaties, terminate treaties, recognize foreign governments and states, and make or declare peace. I have elsewhere argued that these powers are subsumed under enumerated grants of power or fairly inferred from the framers’ intentions or other constitutional provisions.14 This approach is faithful to the principle articulated by the Supreme Court in Reid v. Covert that the government is “a creature of the Constitution. Its powers and authority have no other source.”15 Behind the framers’ emphatic rejection of the British model, rooted, as we have seen, in a deep aversion to an unrestrained, unilateral, executive power, lay an equally emphatic commitment to the republican principle of collective decision making, grounded in the belief that the combined wisdom of the many is superior to that of one. The framers perceived a broad equatorial divide between the hemispheres of monarchism and republicanism, between the values of the Old World and those of the New World. The convention’s deliberate fragmentation of powers relating to diplomacy, treaties, and war and peace, and the allocation of the various foreign affairs powers to different departments and agencies of government, reflected the framers’ determination to apply the doctrines of separation of powers and checks and balances, the principle of the rule of law and constitutionalism

The President as King

163

to the realm of foreign relations as rigorously as they had been applied to the domestic domain. This critical decision represented a bold departure from the prevailing wisdom of the day, which urged the unification and centralization of foreign relations powers in the executive and warned that the separation of those powers would invite chaos, disorder, and even disaster. However, the framers brought a fresh outlook, a new vision, to foreign policy, one that recognized that the conduct of foreign policy includes some elements that are primarily legislative in nature, others that are essentially executive, and still others that are characteristically judicial. In Federalist No. 47, Madison observed that “treaties with foreign sovereigns” assume, once they are made, “the force of legislative acts.”16 The Constitution, moreover, characterizes the power to declare war as legislative and the power to conduct it as executive. The supremacy clause imposes upon judges the duty to enforce treaties as the law of the land.17 The constitutional convention thus studiously discarded the British model as obsolete and inapplicable to the republican manners of the United States.18 The purpose of this new constitutional arrangement for foreign affairs, a distinctively American contribution to politics and political science was to require and implement collective decisionmaking—joint participation, consultation, and concurrence—by the political branches in the formulation, conduct, and management of the nation’s foreign policy. The framers supposed that the infusion into the foreign policy process of checks and balances would maintain the constitutional allocation of powers and, therefore, prevent executive unilateralism, aggrandizement, and usurpation. They believed, moreover, that the structure of shared powers in the conduct of international affairs, bottomed on the premise and promise of legislative deliberation, would produce wise policies and, in the words of James Wilson, “a security to the people,” for it would afford in Congress an airing of the various political, economic, and military interests that were bound up in the nation’s external relations.19 In sum, there is, contrary to President Bush’s claim, no unilateral presidential authority to conduct the foreign relations of the United States. The framers of the Constitution sought to place that power beyond the reach of the president. As Alexander Hamilton, the darling of executive power enthusiasts, explained it in Federalist No. 75, “The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.”20 The constitutional blueprint for foreign affairs has been all but buried by an avalanche of executive branch missives that adduce an untenable theory of presidential monopoly of foreign relations powers. Over the past halfcentury, Democratic and Republican presidents from Harry S. Truman to George W. Bush, have laid claim to sweeping executive powers—monarchical

164

David Gray Adler

in their scope—in an unrelenting assault on the constitutional norms that govern American foreign policy. Of course, presidential dominance in foreign affairs has become a commonplace, and it rests on familiar, if flimsy, scaffolding, comprising of both legal and policy planks. However, limitations of space largely constrain our discussion to consideration of legal and constitutional claims of unilateral executive authority in foreign affairs. President George W. Bush has embraced the claims of his predecessors on matters of war and peace. We shall examine, among other claims, his assertion of a unilateral executive war-making power, including the authority to wage preemptive war, within the context of legislation—the Use of Force Act of 2001 and the Iraqi Resolution of 2002—that purported to “authorize” the wars in Afghanistan and Iraq, in the wake of the attack on America on September 11, 2001. It is argued here that the Constitution grants to Congress the sole and exclusive authority to initiate military hostilities on behalf of the American people; the president is given the authority to repel invasions and to conduct war when authorized or begun. Accordingly, the claim of an executive authority to wage preemptive war finds no support in our constitutional system. As we shall see, moreover, the legislation that purported to authorize the wars in Afghanistan and Iraq represented an exercise in an unconstitutional delegation of the war power. President Bush has offered little in the way of explanation about his understanding of how the Constitution governs the decision to go to war, but he has said more than can be defended. On September 13, he declared that the terrorist attacks were “acts of war.”21 On September 14, at the urging of the White House, Congress passed “the Use of Force Act,” which purported to authorize the use of military force against the terrorists. The measure authorized the president to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided” the attacks on September 11. (emphasis added)22 The Bush administration sought more authority than it received. It sought authorization for the president “to deter and pre-empt any future acts of terrorism or aggression against the United States,” but Congress refused to include that language, although it did provide, at the outset of the statute, that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” The U.S. intelligence community determined that the 9/11 outrage was the work of al Qaeda, a terrorist organization led by Osama bin Laden. Furthermore, bin Laden had been assisted by the Taliban regime in Afghanistan. On September 20, President Bush issued an ultimatum to the Taliban: “Deliver to United States authorities all the leaders of al Qaeda who hide in your land. Release all foreign nationals, including the American citizens, you have unjustly imprisoned.”23 The Taliban rejected President Bush’s ultimatum, and combat activities, including air strikes and ground troops, ensued. On October 9, 2001, President Bush reported to congressional leaders on the status of the war effort in Afghanistan. His report offered a curious legal

The President as King

165

rationale. He ignored the statutory authorization provided in the Use of Force Act. That measure, he said, was “support,” not authorization. Rather, he had acted “pursuant to my constitutional authority to conduct U.S. foreign relations as Commander in Chief and Chief Executive.”24 Of course, there is no such authority to be found in the Constitution. President Bush is not the first president to make such an indefensible claim; he is merely the most recent. The claim has been reviewed and discredited elsewhere; here the barest account must suffice.25 Let us consider the relevant constitutional provisions and issues.

The War Power President Bush’s claim to a unilateral presidential power to wage war finds no support in the text of the Constitution or in the debates in the convention. The debate on the proper repository of the authority to commence war occurred at the outset of the Constitutional Convention. On May 29, 1787, Governor Edmund Randolph of Virginia proposed a constitution that included a provision “that a National Executive be instituted.” The seventh paragraph stated that the executive “ought to enjoy the Executive rights vested in Congress by the Confederation.”26 The Randolph Plan was taken up by the convention on June 1. In considering the proposal to give to the national executive the executive powers of the Continental Congress, Charles Pinckney objected that “the Executive powers of [the existing Congress] might extend to peace and war which would render the Executive a Monarchy, of the worst kind, to wit an elective one.” Fellow South Carolinian, John Rutledge, said “he was for vesting the Executive power in a single person, tho’ he was not for giving him the power of war and peace.” James Wilson sought to reassure them: “making peace and war are generally determined by writers on the Laws of nations to be legislative powers.” Wilson added that “the prerogatives of the British Monarchy” are not a “proper guide in defining the executive powers. Some of these prerogatives were of a legislative nature. Among others that of war & peace.” James Madison agreed that the war power was legislative in character. Rufus King noted: “[Madison] agrees [with] Wilson in his [definition] of executive powers—executive powers ex vi termini, do not include the Rights of War [and] Peace but the powers [should] be confined and defined—if large we shall have the Evils of elective Monarchies.” Randolph did not defend his proposal but pressed for a plural executive: “A unity of the Executive he observed would savor too much of a monarchy. We had he said no motive to be governed by the British Government as our prototype.”27 There was no vote on Randolph’s resolution, but the discussion reflects an understanding that the power of “war and peace”—the power to initiate war— did not belong to the executive but to the legislature. On August 6, the Committee of Detail circulated a draft Constitution that undoubtedly reflected the convention’s discussion in June. The proposal

166

David Gray Adler

provided: “The legislature of the United States shall have the power . . . to make war.”28 This bore sharp resemblance to the Articles of Confederation, which vested the “sole and exclusive rights and power of determining on peace and war” in the Continental Congress.29 When the war clause was considered in debate on August 17, Charles Pinckney opposed placing the power in Congress. “Its proceedings were too slow . . . . The Senate would be best depository, being more acquainted with foreign affairs, and most capable of proper resolutions.”30 Pierce Butler was for vesting the power in the president, who will “have all the requisite qualities, and will not make war but when the nations will support it.” However Butler’s opinion surprised Elbridge Gerry, who said that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.”31 Butler stood alone in the convention; there was no support for his opinion and no second to his motion. The lack of support for Butler’s motion, moreover, should not surprise anyone because several framers, in the course of discussion on June 1, had emphasized their opposition to any thought of vesting the president with the power of war and peace. The very notion, it seems, smacked of monarchism and the royal prerogative and, as a consequence, engendered fear and resentment. The proposal of the Commitment of Detail to vest the legislature with the power to “make war” proved unsatisfactory to Madison and Gerry. In a joint resolution, they moved to substitute “declare” for “make,” “leaving to the Executive the power to repel sudden attacks.”32 The meaning of the motion is clear. Congress was granted the power to make, that is, initiate war; the president, for obvious reasons, could act immediately to repel sudden attacks with authorization from Congress. There was no quarrel whatever with respect to the sudden attack provision, but there was some question as to whether the substitution of “declare” for “make” would effectuate the intention of Madison and Gerry. Roger Sherman of Connecticut thought the joint motion “stood very well. The Executive should [b]e able to repel and not to commence war. ‘Make’ better than ‘declare’ the latter narrowing the power too between the cases of making war, and making peace. It should [b]e more easy to get out of war, than into it. War also is a simple and overt declaration.”(emphasis added)33 Virginia’s George Mason “was [against] giving the power of war to the Executive, because not [safely] to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred ‘declare’ to ‘make.’ ”34 The Madison–Gerry proposal was adopted by a vote of seven to two. When Rufus King explained that the word “make” might be understood to authorize Congress to initiate as well as to conduct war, Connecticut changed its vote so that the word “declare” was approved, eight states to one.35 The debates and the vote on the war clause make it clear that Congress alone possesses the authority to initiate war. The war-making power was specifically withheld from the president; he was given only the authority to repel sudden attacks. Only one delegate—Pierce

The President as King

167

Butler—advanced the notion of a presidential power to initiate war. However, by the end of the August 17 debate on the war clause, he clearly understood the framers’ decision to place the war power under legislative control, as evidenced by his motion “to give the Legislature power of peace, as they were to have that of war.”36 The motion, which represented a volteface on Butler’s part, drew no discussion, and it failed by a vote of 10 to 0. In all likelihood, it was viewed by delegates as utterly superfluous given the understanding that the war power encompassed authority to determine both war and peace.37 With the exception of Pierce Butler’s remarks, there is nothing in the framers’ comments, arguments, or train of discussion to suggest even a vigorous flirtation with the proposition of vesting the war power in the executive. The various conventions, moreover, included delegates in Philadelphia who informed and assisted their deliberations. Wilson told the Pennsylvania Ratifying Convention: This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring was is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representative: from this circumstance we may draw a certain conclusion that nothing but our national interest can draw us into war.38

Similar assurance was provided in other state conventions. In North Carolina, James Iredell, who was destined to be a member of U.S. Supreme Court, stated: “The President has not the power of declaring war by his own authority . . . . These powers are vested in other hands. The power of declaring war is expressly given to Congress.”39 Furthermore, Charles Pinckney, a delegate in Philadelphia, told the South Carolina Ratifying Convention that “the President’s powers did not permit him to declare war.”40 Likewise, in New York, Chancellor R.K. Livingston responded to objections that the Continental Congress did not have “the same powers” as the proposed Congress.41 He explained that if the two bodies shared “the very same” power, including the power “of making war and peace[,] . . . they may involve us in a war at their pleasure.”42 The debates on the war clause afforded no support for the assertion of a unilateral presidential power to initiate the use of military force; nor is it the case, as President Bush has contended, that this authority can be squeezed from either the vesting Clause or the commander in chief clause.43

Commander in Chief As Francis D. Wormuth observed, “the office of commander in chief has never carried the power of war and peace, nor was it invented by the framers of the Constitution.”44 In fact, the office was introduced by

168

David Gray Adler

King Charles I in 1639, when he named the Earl of Arundel commander in chief of an army to battle the Scots in the First Bishops War. In historical usage, the title of commander in chief has been a generic term referring to the highest officer in a particular chain of command. In the English experience, the ranking commander in chief always was under the command of a political superior. This long practice was transplanted to American soil by the English and implemented during the Revolutionary War. The Continental Congress continued the usage of the title when on June 15, 1775, it unanimously decided to appoint George Washington as general. On June 17, his commission named him “General and Commander in Chief, of the Army of the United Colonies.” The instruction of the Congress drafted by John Adams, Richard Henry Lee, and Edward Rutledge kept President Washington on a short leash. He was ordered “punctually to observe and follow such orders and directions, from time to time, as [he] shall receive from this, or a future Congress of these United Colonies, or Committee of Congress.”45 Congress did not hesitate to instruct the commander in chief on military and policy matters. The practice of entitling the office at the apex of the military hierarchy as commander in chief and of subordinating the office to a political superior, whether a king, parliament, or Congress, was thus firmly established for a century and a half and was thoroughly familiar to the framers when they met in Philadelphia. Perhaps this settled understanding and the consequent absence of concerns about the nature of the post accounts for the fact that there was no debate on the commander in chief clause at the convention. Any interest on the part of the delegates in reversing this familiar practice and vesting the president with a substantive power to initiate military hostilities surely would have been accompanied by some comment, some appeal, or some argument to that effect. The record, however, reveals no such interest. In the plan he read to the convention on May 29, 1787, South Carolinian Charles Pinckney introduced the title of president and proposed: “He shall, by Virtue of his Office, be commander in chief of the land forces of U.S. and Admiral of their Navy.”46 Presumably, Pinckney had drawn on the traditional usage of the title employed in the South Carolina Constitution of 1776, which provided for a president and commander in chief, and that of 1778, which included a provision for a “governor and commander in chief.”47 There was no such provision in the Randolph or Virginia Plan, which was read to the convention on the same day.48 On June 15, William Paterson submitted the New Jersey Plan, which called for a plural executive.49 It provided that “the Executives . . . ought . . . to direct all military operations; provided that none of the persons composing the Federal Executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as General, or in any other capacity.”50 The qualifying clause was meant to discourage a military takeover of the government. When Alexander Hamilton submitted a plan to the convention on June 18, he probably did not propose the title commander in chief, but he undoubtedly

The President as King

169

had it in mind when he said the president was “to have the direction of war when authorized or begun.”51 It was Hamilton’s speech, then, that summarized the essence of the president’s power as commander in chief: When war is “authorized or begun,” the president is to command the military operations of American forces. There was no fear of the legal authority granted by the commander in chief clause, and in fact, the clause seemed to excite little dispute. The lone concern was that conveyed by the New Jersey Plan that a president who personally assumed command of army and navy forces might use them to institute a military coup.52 However, these concerns were allayed in the North Carolina Ratifying Convention. Richard Spaight, who had been a delegate to the constitutional convention, said that Congress could control the commander in chief because it had the exclusive authority to raise and support armies, which the founders understood as including the power to deploy troops.53 James Iredell offered similar assurance, laying bare the authority of the commander in chief and drawing a sharp distinction between the powers of the office and those of the king of England: I believe most of the governors of the different states have powers similar to these of the President. In almost every country, the executive has command of the military forces. From the nature of the thing, the command of armies ought to be delegated to one person only[.] The secrecy, [dispatch], and decision, which are necessary in military operations, can only be expected from one person. The president, therefore, is to command the military forces of the United States, and this power I think a proper one; at the same time it will be found to be sufficiently guarded. A very material difference may be observed between this power, and the authority of the king of Great Britain under similar circumstances. The king of Great Britain is not only the commander-inchief of the land and naval forces, but has the power, in the time of war, to raise fleets and armies. He also has the power to declare war. The President has not the power of declaring war by his own authority, nor that of raising fleets and armies. These powers are vested in other hands. The power of declaring war is expressly given to Congress, that is, to the two branches of the legislature . . . . They have also expressly delegated to them the powers of raising and supporting armies, and of providing and maintaining a navy.54

Iredell’s speech echoed The Federalist No. 69, in which Hamilton sought to ease fears surrounding the commander in chief clause. He claimed for the president no authority to use military force: The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and

170

David Gray Adler

regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the Legislature.55

In short, the president as commander in chief was to be “first General and Admiral” in “the direction of war when authorized or begun.” However, all political authority remained in Congress, as it had under the Articles of Confederation. There was no indication in the debate on the commander in chief clause of an “implied” executive power to initiate military hostilities on behalf of the American people. As Louis Henkin has observed, “generals and admirals, even when they are ‘first,’ do not determine the political proposes for which troops are to be used; they command them in execution of policy made by others.”56 The commander in chief in the tradition of a century and a half was made subordinate to a political superior. The office carried with it no power to declare or authorize war; as Hamilton and Iredell explained, that is the exclusive prerogative of Congress. While President Bush has adduced the Vesting clause as a source of warmaking authority for the president, there is certainly nothing in the records of either the constitutional convention or the various state conventions to support this assertion. As we have observed, the mere suggestion in the Randolph Plan to provide for a president who would “enjoy the executive rights vested in Congress by the Articles of Confederation” caused much alarm. Some delegates wondered whether this move would grant to the president the authority to initiate war, a move that they strongly opposed. Wilson allayed the fears: “Making peace and war are generally determined by the Writers on the Laws of Nations to be legislative powers—[e]xecutive powers . . . do not include the rights of war and peace.”57 Our review of the convention’s discussions and debates on war-making yields no support for the contention that the framers granted war-making authority to the president. It is clear that neither the commander in chief clause nor the Vesting clause may be adduced on behalf of a unilateral executive war-making power.

Bush and the Preemption Doctrine The framers’ decision to vest the war power in Congress represented a thoroughly republican response to the problems posed by executive warmaking. It was assumed that the legislature, through the process of solemn discussion and deliberation, would more readily perceive the nation’s interests, particularly on crucial matters such as those involving war and peace. They had recognized that executive war making, without constitutional constraints, was an invitation to disaster, for it placed the nation at the mercy of a president’s ambitions and passions, including, perhaps, an overweening interest in his historical reputation.58 In fact, the framers were keen students of history and understood the intoxication of power and the delirium of

The President as King

171

ambition, the utter incapacity of men to withstand the temptation of power, which they viewed as corruptive, malignant, and pernicious, a force that constitituted a persistent threat to law and liberty. They knew, too, that among the passions of men, dreams of military glory represented a crowning achievement, and that Americans were not immune to the allure of fame, honor, and power. As Madison observed, “it is in war, finally, that laurels are to be gathered; and it is the executive brow that they are to encircle. The strongest passions and most dangerous weaknesses of the human breast, ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.”59 George Logan, a well-known Quaker, echoed the sentiments of the founding generation when he observed in 1798 that “wars created by ambitious executives have been undertaken more for their own aggrandizement and power than for the protection of their country.”60 And while the framers were hopeful that future presidents would possess at least a modicum of republican virtue, they were nonetheless wary of their ability to fend off the temptations of power and avoid seduction by fame and glory. Fearful that a president might plunge the nation into carnage or distress for reasons having little to do with merit or the national interest but on other, less virtuous grounds—personal agendas, political motives, and the lure of fortune, among them—the framers granted to Congress the sole and exclusive authority to initiate military hostilities, great or small, on behalf of the American people.61 As we have seen, founding documents and materials are rife with references to the framers’ fear of unilateral executive power in warmaking and foreign affairs, a fear rooted in their doubts about the ability of the executive to perceive the national interest in matters involving war and peace. It is difficult to exaggerate the wisdom exhibited on this score. The framers’ perception of the potential for the calamity that can be inflicted through the exercise of executive warmaking is more readily appreciated in our time—the age of the imperial presidency—and all the more so when one contemplates the potential impact of President Bush’s doctrine of preemption. In September of 2002, the administration issued its National Security Strategy, a document, which, among other things, addressed the prospect of “enemies” that might seek to acquire weapons of mass destruction, and made the case for a presidential power to “act against such emerging threats before they are fully formed.” President Bush stated that history “will judge harshly those who saw this coming danger but failed to act. In the new world we have entered, the only path to peace and security is the path of action.”62 The Bush doctrine of preemption represents an attempt to supply a justification for unilateral presidential war making—which the Constitution prohibits by virtue of the fact that the power of war and peace is granted to Congress. Simply stated, the Constitution precludes the claim of a presidential power to wage war. The effectuation of the concept would require a constitutional amendment. But ideas generate policy and policy leads to

172

David Gray Adler

practice. The Bush proposal, which Louis Fisher has rightly characterized as a “broader concept: preventive war,” rings the changes on the framers’ fears about unilateral executive warmaking. From a strictly policy perspective, if there was no reason to entrust the war power to a man with the temperament, judgment, and integrity of George Washington, whom the framers, gathered in Philadelphia, envisioned as their first chief executive, what in the name of history has transpired over the past two centuries to entrust such authority to George W. Bush ? Have Americans not learned from 50 years of implicit, indeed, blind trust, in the president, that the executive may be deficient in perception, judgment and vision? U. S. presidents failed to learn from the French that Vietnam was a quagmire, a failure that confirms John Stuart Mills’s rhetorical derision of governmental infallibility. “There is nothing more fallible,” wrote James Iredell, a member of the first U.S. Supreme Court and a delegate to the North Carolina Ratifying Convention, than “human judgment,” a fundamental philosophical insight reflected in the framers’ embrace of the doctrines of separation of powers and checks and balances, and their rejection of presidential unilateralism.63 The prospect of a president wielding the authority to strike preemptively on the basis of an assumption that a nation might, someday, acquire weapons with which to threaten the United States would require the seating of a president with a perspicacity that, at least thus far, has eluded occupants of the White House. It may well be that a nation may find itself confronted with an imminent threat, grounded on rock-solid evidence, that requires a preemptive strike, but that solemn decision is better left to the collective judgment of Congress, as opposed to the individual judgment of one person.

Delegation of the War Power As we have observed, Congress, in the wake of 9/11, had passed on September 14, 2001 a statute, the Use of Force Act, that purported to authorize President Bush to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided” the attack on the United States. President Bush, it will be recalled, deigned not to cite the statute as authority for his military actions against Afghanistan but chose, rather, to invoke a unilateral constitutional authority to wage war. Those circumstances were mirrored a year later in the run up to the United States’ invasion of Iraq. On October 20, 2002, Congress, at the request of the Bush administration, passed the Iraq Resolution, which vested in the president the authority to use “the Armed Forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.” When President Bush signed the resolution, he stated: “Congress has now authorized the use of

The President as King

173

force.”64 However, in a separate statement, in a manner that paralleled the Afghan Resolution, President Bush acknowledged the Iraqi measure as a “resolution of support,” but added that his act of signing the resolution did not “constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use force to deter, prevent, or respond to aggression or other threats to U.S. interests or on the constitutionality of the War Powers Resolution.”65 And when, on March 19, 2003, he ordered troops into battle in Iraq, President Bush invoked his own claim of constitutional power to wage war. He did not cite the Iraq Resolution as legal justification for his military actions. As a consequence of presidential pronouncements and congressional action, the legal status of military acts in both Afghanistan and Iraq remain in doubt. We may say, with certainty, based on the text of the Constitution, the discussions and debates in Philadelphia and the various state ratifying conventions, and other contemporaneous documents and judicial rulings issued at the dawn of the Republic, that the president has no constitutional authority to initiate military hostilities.66 Thus, if the invasions of Afghanistan and Iraq are to be considered constitutional, it must be as a consequence of legislative measures—the Use of Force Act and the Iraq Resolution—enacted by Congress. As we shall see, however, each measure represents an exercise in an unconstitutional delegation of the war power. In each case, Congress did not, as the Constitution requires, decide for war; rather, in each, Congress decided to allow the president to decide for war. Under the Constitution, Congress may not delegate the decision to decide for war.67 Chief Justice John Marshall stated in 1825, in Wayman v. Southard: “It will not be contended that Congress can delegate to the courts, or to any tribunals, powers which are strictly and exclusively legislative.”68 As we have seen, the framers, like the writers on the Law of Nations, regarded the war power as legislative. Thus the Constitution vests in Congress the sole and exclusive power to move the nation from a state of peace to a state of war.69 In other words, when Congress declares or otherwise authorizes war, it is exercising its legislative power for the purpose of effectuating a change in the nation’s legal status. The president, who is denied the authority to exercise the lawmaking power, has no constitutional authority to effect changes in the legal status of the nation. Conversely, as an attribute of its legislative power, Congress retains jurisdiction over war from beginning to end. As Madison put it, the Constitution grants to Congress the authority to “commence, continue and conclude” military hostilities.70 In 1935, in Schecter Poultry Corp. v. United States, Chief Justice Charles Evans Hughes provided the classic explanation of the law of delegation: The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is vested. We have repeatedly recognized the necessities of adopting legislation to complex conditions involving a host of details with which the national legislature cannot deal directly. We pointed out in the Panama Refining Case that the Constitution has never regarded as

174

David Gray Adler

denying to Congress the necessary resources of flexibility and practicality, which will enable it to perform its function inlaying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. But we said that the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to observe the limitations of the authority to delegate, if our constitutional system is to be maintained.71

The law governing delegation of power thus prevents Congress from passing legislation that would authorize the president to commence a war, for the simple reason that “it is impossible for Congress to enact governing standards for launching future wars.”72 Congress cannot anticipate the unpredictable twists and turns of warfare, which means it cannot lay down standards and policies that would give the president any meaningful directions. It has been justly observed that if Congress attempts to delegate the war power to the executive, “it is not determining policy for the future, it is casting dice.”73 The principal constitutional vice of both the Afghanistan and Iraq resolutions is that they purported to give the president the option of making war on some future occasion. As we have observed, the measures allowed the president to decide for war. But, as Chief Justice Hughes noted in Schechter, Congress may not abdicate or delegate its legislative powers, and that includes not only the war power, but also the appropriations and lawmaking powers. But these measures do not represent the only occasions in which Congress has attempted to delegate the war power. It did so, for example, in its enactment in 1964 of the Gulf of Tonkin Resolution, and again in its passage in 1973 of the War Powers Resolution.74 Of course, there is no precedential value in either of those measures. In Powell v. McCormack, Chief Justice Earl Warren stated: “That an unconstitutional action has been taken before surely does not render that action any less unconstitutional at a later date.” Earlier, Justice Felix Frankfurter, writing for a unanimous court, echoed a centuries-old principle of Anglo-American jurisprudence: “Illegality cannot attain legitimacy through practice.”75 It is for Congress alone to make determinations on matters of war and peace. The willingness of Congress to surrender to the president its awesome power to decide for war, as well as its general abdication of a cluster of foreign policy powers, represents a sordid chapter in the institution’s history, and it gives rise to the question of whether Congress remains a serious partner in the conduct of war and foreign policy. No less a personage than the late Senator Sam Ervin questioned, in the course of hearings in 1973 on the unchecked executive practice of impoundment, “whether the Congress of the United States will remain a viable institution or whether the current trend toward the executive use of legislative power is to continue unabated until we have arrived at a presidential form of government.” Senator Ervin justly criticized executive aggrandizement of legislative authority, but he

The President as King

175

also found Congress culpable for the rise of presidential dominance: “The executive branch has been able to seize power so brazenly only because the Congress has lacked the courage and foresight to maintain its constitutional position.”76

The Termination and Suspension of Treaties The presidential aggrandizement of foreign affairs powers since the rise of the Cold War, so apparent in the executive capture of the war power, also has included within its grasp the practice of secrecy and executive privilege, along with the assertion of the authority to negotiate executive agreements at the expense of the treaty power. Moreover, its reach, which knows few if any limits, has claimed the unilateral authority to terminate and suspend treaties, actions that can greatly affect United States’ foreign policy and national security interests. Presidents Jimmy Carter and George W. Bush have adduced executive power to terminate treaties. In 1978, President Carter announced that he was terminating the 1954 Mutual Defense Treaty between the United States and Taiwan. The Carter administration invoked for authority the commander in chief clause and the “Sole Organ” Doctrine, as set forth in Justice George Sutherland’s opinion in 1936 in United States v. Curtiss-Wright Export Corporation.77 In the fall of 2001, in the aftermath of the 9/11 outrage, President Bush acted to terminate the 1972 ABM treaty with the former Soviet Union.78 Like Carter, Bush found legal authority in the commander in chief clause. Both actions triggered lawsuits that were dismissed as nonjusticeable political questions.79 In February 2002, President Bush also advanced a capacious understanding of his power as commander in chief as foundation for his claim that he could “suspend” the Geneva Convention’s prohibitions on torture. His assertion, and the notorious legal memos authored by attorneys in the Bush administration—in the Office of Legal Counsel, the Attorney General’s Office, and the White House Counsel—unleashed an international firestorm on the question of whether the president might authorize the torture of prisoners at Abu Ghraib and Guantanamo Bay, in conflict with domestic and international law prohibitions against such conduct.80 Neither the commander in chief clause nor the Sole Organ Doctrine affords authority for the president to terminate or suspend treaties.

Treaty Termination and the Commander in Chief As we have observed, the commander in chief clause was narrowly understood by the framers of the Constitution. In one respect, it amounted to authority for the president, as Hamilton explained it, to conduct war, “one

176

David Gray Adler

authorized or begun.” In the other—in the event of an attack on the United States—as Madison put it, the president was expected to “repel the invasion.” There was nothing in the debates in Philadelphia that even hinted at the commander in chief clause as a source of authority for the president to formulate and manage American foreign policy. For that matter, the entire history of the title, in the practice of England and under the authority of the Continental Congress, reveals no foundation for the belief that it represents a source of a foreign affairs policymaking power. A review of the discussions and debates on the treaty power at the constitutional convention yields no basis for the assumption that the president possesses a unilateral authority to terminate treaties. Indeed, the entire thrust of the proceedings opposed executive unilateralism in foreign affairs. The convention, it is true, never directly addressed the issue of treaty termination, an omission that has caused confusion about the repository of the authority to terminate treaties.81 Nevertheless, the policy concerns that lay behind the debate on how to structure the treaty power certainly would apply with equal validity to the termination of treaties. Moreover, the same economic, sectional, and security interests implicated in making treaties would be implicated by their termination.82 The framers of the Constitution never seriously contemplated vesting the treaty-making power in the president alone. Their consideration was confined to a discussion about which branches would participate, and the numerical requirements of the particular branches. Until the last week of the convention, the working plan had vested the treaty power solely and exclusively in the Senate. At that juncture, Madison, in an effort to apply the doctrine of checks and balances to the formulation and conduct of American foreign policy, succeed in persuading the delegates that the president should “be an agent in treaties” as a means of countering the Senate that, he believed, “represented the States alone.”83 But Madison was no monarchist. Nor, for that matter, was Hamilton, who explained in Federalist 75 why it was not safe to entrust the president with the unilateral authority to make treaties:

[T]he vast importance of the trust, and the operation of the treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them . . . . It must indeed be clear to a demonstration that the joint possession of the power in question by the President and the Senate would afford a greater prospect of security, than the separate possession of it by either of them. [I]t would be utterly unsafe and improper to entrust [the entire power of making treaties] to an elective magistrate . . . . The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world to the sole disposal of a magistrate created and circumstanced as would be the president of the United States.84

The President as King

177

The framers perceived that a treaty power built upon mutual checks, would, as Wilson observed “produce” a greater “security to the people” than executive unilateralism.85 Justice Joseph Story, perhaps unrivaled in the history of the Court as a legal scholar, agreed with Hamilton and Wilson. In his estimation, the “joint possession of the power affords a greater security for its just exercise than the separate possession of it by either.”86 In an observation that echoed Hamilton’s misgivings about entrusting the president with the “awesome” power to make treaties, and one punctuated with prescience, Story declared: “[I]t is too much to expect, that a free people would confide to a single magistrate, however respectable, the sole authority to act conclusively, as well as exclusively, upon the subject of treaties. . . . [T]here is no American statesman, but must feel, that such a prerogative in an American president would be inexpedient and dangerous.”87 The fears and concerns expressed by the framers about executive unilateralism in foreign affairs were reflected in the various state ratifying conventions as well. William Davie, a delegate to the constitutional convention, told the North Carolina Ratifying convention that “jealousy of executive power which has shown itself so strongly in all the American governments, would not admit” of locating the power to make treaties in the president alone.88 Charles C. Pinckney, a framer from South Carolina, told his state ratifying convention that the states had insured that their interests would be represented in the making of treaties by denying that power to the president alone, because “he might perhaps show an improper partiality for the state to which he particularly belonged.”89 These dangers would be no less real if the power to terminate treaties were lodged in the president alone. The various sectional, commercial, and security interests advanced by Southern delegates, which required a joint possession of the treaty power, coupled with the comfort and assurances brought by the two-thirds requirement, an arrangement, it bears reminder, that was so critical to the success of the convention that without it, the entire enterprise would have failed, would be unraveled by the prospect of a unilateral executive power to terminate treaties.90 Then, too, delegates to the convention were not advocating a unilateral presidential foreign affairs power in any area of foreign policy—in either general or specific terms. Indeed, as we have seen the framers’ remarks reflected their fear of executive unilateralism in the nation’s foreign affairs. The entire thrust of the discussion and debates on foreign affairs and warmaking exalted collective decisionmaking. Advocates of a presidential power of termination bear the heavy burden of identifying evidence to support their position. That task becomes greater in the face of writings by James Madison and John Jay, which argued that treaties would be terminated by the same parties that made them—the president and the Senate, an approach that reflected the framers’ penchant for collective decisionmaking and checks and balances. The principle of symmetrical construction was captured by Jay in

178

David Gray Adler

Federalist 64, in which he asserted that “they who make treaties may alter or cancel them.”91 Similarly, Madison later remarked in a letter: “That the contracting parties can annul the treaty cannot, I presume be questioned, the same authority, precisely, being exercised in annulling as in making a treaty.”92 It is thus in defiance of the values, ideas, fears, concerns, and principles from which the Constitution was forged that executives and their defenders have asserted a unilateral presidential authority to terminate treaties. Their case, as advanced by Presidents Carter and Bush, rests on claims about the commander in chief clause and the Sole Organ Doctrine. We have seen that the commander in chief clause affords the president no such authority. The argument about the Sole Organ Doctrine fares no better.

Sole Organ Doctrine The assertion of a unilateral executive foreign affairs power has often been grounded in the claim that the president is sole organ of American foreign policy. The Supreme Court introduced the “sole organ” doctrine in 1936 in United States v. Curtiss-Wright Export Corp.93 Justice George Sutherland’s opinion for the Court, however, is deeply flawed and it has been soundly repudiated.94 In Curtiss-Wright, the Court was asked to rule on the constitutionality of a 1934 statute that authorized the president, Franklin D. Roosevelt, to impose an arms embargo on Bolivia and Paraguay, then involved in the Chaco War if he determined that the embargo “may contribute to the reestablishment of peace” between the belligerents. Once Roosevelt learned that Curtiss-Wright was the principal supplier of war weapons, it was relatively easy to believe that he could invoke the statutory delegation of contingent authority. As a consequence, Curtiss-Wright attacked the statute as an unconstitutional delegation of legislative power. In his opinion for the Court, Justice Sutherland upheld the delegation of power against the argument that it was too broad. Sutherland might have stopped at that point since the delegation question was the only issue in the case. But he soared beyond the issue and launched a bizarre thesis in which he claimed that the president was the “sole organ” of American foreign affairs. Sutherland sought authority for his proposition in the majesty of John Marshall’s name and stature in American law. In 1800, in a speech delivered in the House of Representative, then Congressman John Marshall defended President John Adams’s decision to return Jonathan Robbins to England in accordance with an extradition treaty. Robbins had been charged with murder. Since the case was working its way through the American legal system, Adams’s critics called for his impeachment on grounds that he had encroached on the power of the judiciary and violated the separation of powers doctrine. Marshall defended Adams’s decision. Adams, he said, was

The President as King

179

merely executing a treaty; he was not making policy, but merely implementing it. Marshall stated: “[T]he President is the sole organ of the nation in its external relations. . . . Of consequence, the demand of a foreign nation can only be made on him.”95 In short, as Marshall explained, the demand required a response from the president on behalf of the American people. At no point in his speech did Marshall argue that the president’s exclusive authority to communicate with foreign nations carried with it a power to formulate or develop policy. For that matter, Marshall never invoked the sole organ doctrine as a source of policymaking authority in his entire career on the bench. Edward S. Corwin properly concluded: “Clearly, what Marshall had foremost in mind was simply the president’s role as instrument of communication with other governments.”96 This point of procedure had been acknowledged in 1793 by the Secretary of State Thomas Jefferson, and by Madison as well.97 And this view has not been challenged. Justice Sutherland misappropriated Marshall’s speech and infused a communicative note with a policymaking function. Sutherland wrote that authority in foreign affairs was essentially an executive power, which he explained “as the very delicate, plenary, and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.”98 Sutherland’s transformation of a communicative role into an independent indeed, “plenary” policymaking role led Myres McDougal and Asher Lans to observe that Sutherland had confused the “organ” with the “organ grinder.”99 Justice Sutherland’s confusion, it might be said, effectively undermined the constitutional design for cooperation and collective decisionmaking in the conduct of foreign relations. Curtiss-Wright was, indeed, a radical, path-breaking case. Definitionally speaking, the president is not the sole organ of foreign affairs. As we have seen, Congress is constitutionally vested with the bulk of the nation’s foreign relations powers. Sutherland’s conception of the sole organ doctrine represented a flight of fancy. Despite the fact that its rhetoric has been dismissed as “dictum,” it has nevertheless enjoyed a long life—nearly 70 years—because the Court has trotted out the sole organ doctrine whenever it has required a rationale to support a constitutionally doubtful presidential action in foreign affairs.100 On such occasions, and they have been numerous, the ghost of Curtiss-Wright has been made to walk again. Even the most cursory review of the cases in which it has been invoked makes clear that the essence of this “spirit” is great “deference to executive judgment in this vast external realm” of foreign relations.101 The untenability of the sole organ doctrine hardly affords a basis for the assertion of an executive authority to terminate treaties. In point of fact, as we have observed, there is nothing in the text of the Constitution or in its architecture to support such a claim. Indeed, the assertion of a unilateral executive power to terminate treaties runs afoul of all of the values, interests, concerns, and fears that influenced the framers’ rejection of executive unilateralism.

180

David Gray Adler

Presidential Power and the Geneva Conventions The Bush administration’s capacity for outrage reached a new pitch when its attorneys unleashed in the wake of September 11 a series of spectacular assertions about a virtually unbridled executive power to wage the “war on terror.” The administration claimed that the president could designate any American citizen as an “enemy combatant” and have him imprisoned in solitary confinement, indefinitely, without trial or access to legal counsel. The administration claimed, moreover, that the president’s actions were impervious to judicial review. In Hamdi v. Rumsfeld (2004), however, the Court rejected the Bush administration’s broad assertions. In Justice Sandra Day O’Conner’s opinion, the Court held that Congress had authorized the detention of those held at Guantanamo Bay in its passage in October 2001 of the Use of Force Resolution.102 It rejected the president’s assertion of power to deny the detainees a hearing and the benefit of counsel. The Court’s most important act, however, lay in its decision to hear and review the case in the face of the president’s remarkable assertion that his decision was unreviewable. That claim, of course, threatened to make hash of the principle that America is a government of laws, not men. In Bush’s claim, there was the voice of the Stuart monarchy. A string of legal memos—the infamous “Torture Memos”—authored by attorneys in the Office of Legal Counsel, as well as the U.S. Attorney General John Ashcroft and White House Counsel Alberto Gonzales— asserted that President Bush, in the exercise of his authority as commander in chief, might suspend both federal laws and the Geneva Convention’s prohibitions against the torture of detainees held at Guantamano Bay and Abu Ghraib.103 On February 7, 2002, President Bush issued a finding in which he declared his constitutional power to suspend the Geneva Convention, and by implication the federal statutes in which the treaties are embodied, but he announced, nonetheless that the United States would treat detainees in “a manner consistent” with the requirements of the Geneva Convention.104 Bush’s claim of a unilateral executive authority, grounded in the commander in chief clause and the sole organ doctrine to suspend the Geneva treaties, fares no better than his assertion of the power to terminate the ABM Treaty. The president’s assertion, moreover, that Congress may not interfere with the president’s conduct of war, including a decision to torture detainees, is without foundation. Finally, the president’s claim to a “suspending” authority violates the historic purpose behind the framers’ adoption of the take care clause. The first of the Torture Memos was dated January 9, 2002, and it was coauthored by John Yoo and Robert Delahunty, two attorneys working in the Office of Legal Counsel (OLC). The Yoo/Delahunty memo wielded great influence: subsequent memos written by high-ranking Bush administration officials, including Ashcroft and Gonzales, embraced and essentially

The President as King

181

reiterated the arguments advanced by Yoo and Delahunty. In a sense, the legal chain ran from Yoo and Delahunty to Bush. The Yoo/Delahunty Memo first asserted the idea that the president’s power, as commander in chief and the sole organ of American foreign policy, permits him to “override” treaties and statutes. It was affirmed by subsequent memos, and statements by Bush officials, including an assertion by White House Counsel Gonzales.105 The Geneva Convention of 1949, which consisted of four conventions, was ratified by the United States on July 14, 1955.106 These conventions, along with the two additional proposals of 1977 constitute Geneva Law—a detailed body of rules that govern the treatment of victims of armed conflict.107 The treaties were written and adopted against the backdrop of World War II, which revealed serious deficiencies in the law of war. Among other things, the Geneva Conventions sought to protect various categories of persons subject to the authority of the enemy. Toward the end, the conventions apply in all cases of armed conflict between two or more states, even if a state is not a party to the treaties. At a minimum, prisoners of war (POWs) and all persons no longer playing an active role in the hostilities are entitled to humane treatment. In short, Geneva Law governs the treatment of all detainees subject to the authority of the enemy. As a consequence, all detainees held at Guantanamo, whether classified as POWs, unlawful combatants or, those no longer taking an active part in the hostilities, are protected by Geneva Law. The requirement of “humane treatment” for detainees imposes on the United States, as the detaining power, to provide protection “against [all] acts of violence or intimidation and against insults and public curiosity.”108 It also provides that “no physical or mental torture, nor any other form of coercion, may be inflected on prisoners of war to secure from them information of any kind whatever.”109 The Bush administration, as we have observed, contended that the Geneva Treaties did not apply to detainees at Guantanamo Bay. The Yoo/Delahunty Memo asserted that the treaties did not “protect members of the al Qaeda organization, which as a non-state actor cannot be a party to the international agreements governing war.”110 This contention ignores common Article III of the Geneva accords, which apply to all persons no longer participating in the hostilities. Moreover, as the administration itself acknowledged, al Qaeda forces, in alliance with the Taliban—the governing regime in Afghanistan—waged war against the United States. Thus, under Article 4 (A) (2) of the Geneva Convention III, the al Qaeda forces would be entitled to a POW status as irregular forces, including, “members of other militias and members of other volunteer corps, including those of organized resistance movements.”111 Yoo and Delahunty also denied that Taliban forces were entitled to protection under the Geneva Treaties. Afghanistan, it was asserted, had crumbled to the point where it had become a “failed state” under international law. The collapse of the state, it was contended, resulted in the loss of a functioning, central government, and in the inability to provide “the most

182

David Gray Adler

basic services to the Afghan population, of suppressing endemic internal violence, or of maintaining normal relations with other governments.”112 This description might apply to several countries throughout the world, which have not been characterized as “failed” states. In any case, this characterization ignored the fact that the Taliban government controlled all of the country, with the exception of a small portion in the north. Under international law, a key criterion of state sovereignty is the effective governmental control of its territory. The Taliban appeared to have satisfied that test. Of course, the strategy of the Yoo/Delahunty memo in characterizing Afghanistan as a “failed state” represented a crucial step in its argument that the Geneva Treaty was not applicable to Taliban militia detained at Guantanamo. As Yoo and Delahunty perceived it, a failed state would be unable to meet its treaty obligations. As a result, they claimed, the president, in accordance with international law, could suspend the Geneva Convention by invoking the doctrine of “changed circumstances.” In this effort, the memo sought to rely on a scrap from my 1986 book, The Constitution and the Termination of Treaties, in which I noted President Franklin D. Roosevelt’s unilateral suspension of the London Naval Treaty of 1936. As I explained it, “The War in Europe had caused several contracting parties to suspend the treaty, for the obvious reason that it was impossible to limit naval armaments. The notice of termination was therefore grounded on changed circumstances.”113 Manifestly, there is a world of difference between the suspensions of a treaty because war has created an impossibility of performance, and the decision to suspend a treaty because the Bush administration, while perfectly able to perform its treaty obligations under Geneva Law, simply chose not to adhere to the treaty. Yet the very basis of a presidential authority to suspend the Geneva Convention, as Yoo and Delahunty explain it, rests in part on their assertion of the president’s “plenary authority” as the sole organ of American foreign policy. As we have seen, the sole organ doctrine cannot survive scrutiny. Their additional assertion—that treaties and statutes may not interfere with the president’s exercise of his authority as commander in chief—is equally untenable. Our discussion of the president’s authority as commander in chief yielded the conclusion that it was constrained by constitutional provisions. For example, the president may not initiate military hostilities without authorization from Congress. And since Congress, as Madison stated, possesses the power to “commence, continue and conclude war,” it follows that Congress may issue instructions to the president that he is compelled to obey since Congress is the commander in chief’s political superior. It has ever been thus! On June 15, 1775, the Continental Congress unanimously appointed George Washington as general. Dated June 17, his commission named him “General and Commander in Chief, of the Army of the United Colonies.” The instructions of the Congress drafted by John Adams, Richard Henry Lee, and Edward Rutledge kept Washington on a short leash. He was

The President as King

183

ordered “punctually to observe and follow such orders and directions, from time to time, as you shall receive from this, or a future Congress of these United Colonies, or Committee of Congress.” Congress did not hesitate to instruct the commander in chief on military and policy matters.114 In 1804, in Little v. Barreme, Chief Justice Marshall held that President John Adams’s instruction to seize ships were in conflict with an act of Congress and were therefore illegal.115 Marshall might have invoked the sole organ doctrine to justify Adams’s action, but he did not. And he might have exalted the commander in chief’s authority over and above a conflicting statute, but he did not. Rather, Marshall ruled that Congress, in the course of war, may indeed impose instructions and directions on the president in his capacity as commander in chief. There is, in light of our history, no reason to doubt the authority of Congress over the commander in chief. Thus Congress, in passing legislation that prohibits the torture of detainees, has tied the hands of the president. In short, there is nothing in the commander in chief clause, despite President Bush’s sweeping assertions of power, that affords him the authority to “override” statutory and treaty prohibitions against torture. There remains a troubling consequence for American constitutionalism that stems from President Bush’s claim to authority to “override” or suspend the Geneva Conventions: May the president suspend federal law? Some provisions of Geneva treaties have been incorporated into our domestic law since the passage in 1996 of the War Crimes Act, which imposes federal criminal sanctions for breaches of the Geneva Conventions. Congress enacted the statute as legislation to incorporate the Geneva Convention into American law in order to fulfill obligations under the accords.116 Thus, President Bush’s assertion of authority to suspend the Geneva Treaties is accompanied by what Gonzales characterized as the president’s authority to “override” statutes that have implications for interrogation and treatment of detainees. There is in the claim of an executive power to suspend statutes the spectre of the Stuart Kingship. The proposition that the president is subject to the law constitutes the essence of the rule of law. “At the time of the Revolution and in the early days of the Republic, it was thought that republican government differed from the monarchies of Europe in precisely this respect.”117 The constitutional convention, mindful of the discord and fear that had been caused by the English kings’ exercise of their suspending and dispensing powers, imposed on the president a solemn duty to “faithfully execute the laws.” The requirements of the take care clause were utterly discordant with a monarch’s dispensing and suspending powers; accordingly, the framers stripped the president of such claims and pretensions. No delegate to the convention asserted a presidential power to suspend the laws. Moreover, no delegate ever asserted a presidential power to violate laws, even in an emergency.118 The framers’ commitment to the principle of executive subordination to the rule of law precluded the exercise of a monarchical suspending power. It is worth noting, moreover, that no early legal treatise, or

184

David Gray Adler

commentary, from the pens of James Wilson or James Kent, Joseph Story or William Rawle, spoke of an executive’s authority to suspend or violate laws in the context of an emergency.119 President Bush’s claim of a suspending power finds no support in the architecture of the Constitution.

Conclusion Monarchical prerogatives and pretensions, the framers recognized, were irreconcilable with republican values. As a consequence, the president’s powers were constitutionally “confined and defined,” as Madison observed, a design, the framers believed, that would protect the nation from an overweening executive and maintain the rule of law. The framers were entitled to believe that they had succeeded in their quest. However, they could not have anticipated the breakdown, indeed, the utter collapse of the doctrine of checks and balances, particularly in the areas of warmaking and foreign policy. The abdication by Congress of its foreign affairs powers and responsibilities in the face of a string of usurpatious executives since World War II has shredded the constitutional design for the conduct of American foreign policy. As a result, the presidency has grown monarchical, and it may be said that it poses a permanent threat to the Republic. Scholars and concerned citizens have proffered remedies: presidential humility, congressional resurgence, and judicial responsibility, in one form or the other, have been recommended as antidotes. Yet, the institutional prescriptions are unavailing. Is it too late to recover republican principles? There is little doubt that the challenge becomes more daunting by the day, particularly in the age of terrorism, in which governmental officials are likely to exploit the public’s fears to facilitate their circumvention of constitutional provisions. But there remains hope—so long as American citizens can be persuaded to appreciate the virtues and values of constitutionalism. That, too, may be daunting task, but that is a subject for another chapter.

Notes 1. Alexander Tocqueville, Democracy in America (New York: Harper Row, 1966), Book I, Chap. 8. 2. Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973). 3. For discussion, see Louis Fisher, Presidential War Power, 2nd ed. (Lawrence, KS: University Press of Kansas, 2004), 154–6. 4. See David Gray Adler, The Constitution and the Termination of Treaties (New York: Garland, 1986). 5. See Fisher, Presidential War Power, 202–35; David Gray Adler, “Termination of the ABM Treaty and the Political Question Doctrine: Judicial Succor or Presidential Power,” Presidential Studies Quarterly 34 (2004): 156–67.

The President as King

185

6. See David Gray Adler, “The Constitution and Presidential Warmaking: The Enduring Debate,” Political Science Quarterly 103 (1988): 1–36. 7. For an analysis of Bush’s claim to unilateral authority see, Fisher, War Power, 202–35. 8. See David Gray Adler, “The Condition of the Presidency: Clinton in Context,” in Adler and Michael Genovese, eds., The Presidency and the Law: The Clinton Legacy (Lawrence, KS: University Press of Kansas, 2002), 184–6. 9. See the “Trenchant Criticisms of the USA Patriot Act,” in Robert Byrd, Losing America: Confronting a Reckless and Arrogant Presidency (New York: W.W. Norton, 2004), 45–56. 10. The power to “suspend” laws, one of the English king’s most troubling prerogatives, caused Parliament to fear for its lawmaking power. The Take Care Clause of the Constitution represented a response to, and a denial of, a presidential claim to that prerogative power. See, Francis D. Wormuth, The Royal Prerogative (Ithaca, NY: Cornell University Press, 1939); Margaret A. Judson, The Crisis of the Constitution: An Essay in Constitutional and Political Thought in England, 1603–1645 (New Brunswick, NJ: Rutgers University Press, 1949). 11. The presidential aggrandizement of foreign affairs powers, at the expense of constitutional provisions and democratic principles poses a major threat to the republic. See, David Gray Adler and Larry N. George, eds., The Constitution and the Conduct of American Foreign Policy (Lawrence, KS: University Press of Kansas, 1996). 12. 5 U.S. (1 Cranch) 137 (1803). 13. Max Farrand, The Records of the Federal Convention of 1787, 4 vols. (New Haven: Yale University Press, 1911), I:66. 14. See Adler, “The Framers and Treaty Termination: A Matter of Symmetry,” 1981 Arizona State Law Journal, 891–923; Adler, “Termination of the ABM Treaty,” 156–67; Adler, “The President’s Recognition Power,” in Adler and George, Constitution and Foreign Policy, 133–58. 15. 354 U.S. 1, 16–17 (1957). 16. Federalist No. 47, 314. 17. Article VI., Cl. 2. 18. See, Adler, “Court, Constitution, Foreign Affairs,” 19–22. 19. Elliot, Debates, 2:507. In the First Congress, Roger Sherman, who had been a delegate in Philadelphia, argued in defense of the shared powers arrangement in foreign affairs: “the more wisdom there is employed, the greater security there is that the public business will be done.” Annals of Congress (1789), 1:1085. 20. Federalist No. 75, 487. 21. 37 Weekly Compilation of Presidential Documents, 1308. 22. 115 Stat. 224 (2001) 23. 37 Compilation of Presidential Documents, 1348. 24. Ibid., 1447. 25. See, Adler, “The Constitution and Presidential Warmaking,” 1–36. 26. 1 Farrand 21. 27. The debates can be found in 1 Farrand 65–72. 28. 2 Farrand 181–2. 29. Henry Steele Commager, Documents Of American History, 7th ed. (New York: Meredith Publishing Company, 1963), 133. Charles Warren observed that this power, as well as others, came “bodily from the old Articles of Confederation.”

186

30. 31. 32. 33. 34. 35. 36. 37. 38.

39. 40. 41. 42. 43.

44. 45.

46. 47. 48. 49. 50. 51. 52.

53. 54.

55.

David Gray Adler Charles Warren, The Making Of The Constitution (Boston: Little, Brown and Company, 1937), 389. 2 Farrand 318. Ibid. Ibid. Ibid., 319. Ibid. Ibid., 318–19. Ibid., 319. Ibid. 2 Jonathan Elliot, Debates in the Several State Conventions on the Adoption Of the Federal Constitution, 2nd ed. (1836), 528. Robert McCloskey wrote that Wilson was the “most learned and profound legal scholar of his generation.” 1 Works Of James Wilson 2, R.G. McCloskey ed. (Cambridge: Harvard University Press, 1967). 4 Jonathan Elliot, 107–8. Ibid., 287. 2 Jonathan Elliot, 278. Ibid. For discussion of the argument that these clauses are a source of unilateral executive war making, see David Gray Adler, “The Constitution and Presidential War-Making: The Enduring Debate,” Political Science Quarterly 103, no. 1 (1988): 8–17. Francis D. Wormuth, “The Nixon Theory of the War Power: A Critique,” California Law Review 60 (1972): 623, 630. For example, the Continental Congress ordered Washington to Massachusetts to take command of the United Colonies. Journals of the Continental Congress, 1774–1789, ed., Worthington C. Ford et al. (Washington, DC: 1904–37), 2:101. President Washington was directed to intercept two British vessels on October 5, 1775. Id. 2 Farrand 606. Francis Newton Thorpe, The Federal And State Constitutions, Colonial Charters And Other Organic Laws (1909), 3243, 3249. 1 Farrand 20. Ibid., 244. Ibid. Ibid., 92. In the Virginia Ratifying Convention, George Mason, who had been a delegate to the constitutional convention, admitted the propriety of his being commander in chief, so far as to give orders and have a general superintendency, he thought it would be dangerous to let him command in person, without any restraint, as he might make a bad use of it. He was, then clearly of [the] opinion that the consent of a majority of both houses of Congress should be required before he could take the command in person. 3 Elliot, 496. James Monroe and Patrick Henry voiced similar concerns. Ibid., 220, 59. Ibid., 114. Ibid., 107–8. As a member of the Supreme Court, Justice Paterson, a framer from New Jersey, held that it was for Congress alone to declare war. United States v. Smith, 27 F. Cas. 1192, 1196–7 (C.C.D.N.Y. 1806). Federalist No. 69, 448. (Alexander Hamilton) (Modern Library ed., 1937).

The President as King

187

56. Louis Henkin, Foreign Affairs and the Constitution (Mineola, NY: Foundation Press, 1972), 50–1. 57. 1 Farrand 73–4. 58. For discussion of this point, see my article, “Presidential Greatness as an Attribute of Warmaking,” Presidential Studies Quarterly 33 (2003): 466–83. 59. Gaillard Hunt, ed., The Writings of James Madison (New York: G.P. Putnam’s Sons, 1906), 152. 60. Quoted in Alexander DeConde, Presidential Machismo (Boston: Northeastern University Press, 2000), 18. 61. See Adler, “Presidential Greatness,” 468–71. 62. National Security Strategy, September 17, 2002, 2. 63. Elliot, Debates, 4:14. 64. 38 Weekly Comp. Pres. Docs. 1777. 65. Ibid., 1779. 66. For discussion of the Supreme Court rulings in the early 1800s that held that the war power was vested solely and exclusively in Congress, see Adler, “Presidential Warmaking,” 26–9 and Fisher, Presidential War Power. 67. See the penetrating analysis of Francis D. Wormuth, “The Vietnam War: The President Versus the Constitution,” in The Vietnam War and International Law, ed., Richard Falk, 2 vols. (Princeton, NJ: Princeton University Press, 1969), 710, 780–99, and Wormuth and Edwin B. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (Dallas, TX: Southern Methodist University Press, 1986), 197–218. 68. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–3 (1825). 69. See my article, “The Clinton Theory of the War Power,” Presidential Studies Quarterly 30 (March 2002): 155–68; Fisher, Presidential War Power, 1–12. 70. “Letter of Helvidius,” in Madison, Writings, 6:148. In 1798, Madison wrote to Jefferson, “The Constitution supposes, what the History of all Govts. Demonstrates, that the Ex. is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legisl,” 312. Thus, he rejected doctrines that “will deposit the peace of the Country in that Department which the Constitution distrusts as most ready without cause to renounce it,” 312. 71. 250 U.S. 495, 529–30 (1935). 72. Wormuth and Firmage, To Chain the Dog, 198. 73. Ibid., 199. 74. For discussion of the Gulf of Tonkin Resolution, see Wormuth, “President Versus Constitution,” 780–99; and for analysis of the War Powers Resolution, see Louis Fisher and David Gray Adler, “The War Powers Resolution: Time to Say Goodbye,” Political Science Quarterly 113 (1998): 1–20. 75. Powell v. McCormack, 395 U.S. 486, 546 (1969); Inland Waterways Corp. v. Young, 309 U.S. 518, 524 (1940). 76. Quoted in Louis Fisher, Congressional Abdication on War and Spending (College Station, TX: Texas A&M University Press, 2000), 119. 77. Treaty of December 2, 1954, 6 United States Treaties and Other Agreements 433. On December 15, 1978, President Carter announced that, as of January 1, 1979, the United States would notify Taiwan that it was terminating the defense treaty in accordance with its provision. Weekly Compilation of Presidential Documents (December 18, 1979)14: 2266. United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936).

188

David Gray Adler

78. Treaty of May 26, 1972, 23 UST 3435, TIAS, No. 7503. Entered into force on October 3, 1972. On October, 21, 2001, President Bush stated: “The events of September the 11 make it clearer than ever that a Cold War ABM Treaty that prevents us from defending our people is outdated and, I believe, dangerous.” Weekly Compilation of Presidential Documents (October 21, 2001). 79. For discussion, see Adler, Constitution and Termination, 248–340; Adler, “ABM Treaty.” 80. See Jinks and Sloss, “Is the President Bound by the Geneva Conventions?” Cornell Law Review 90 (2004): 97. 81. See Adler, “The Framers and Treaty Termination: A Matter of Symmetry,” Arizona State Law Journal (1981): 891–923. 82. Ibid., 895–900. 83. 2 Farrand 392. 84. Federalist No. 75, 486. 85. Elliot, Debates 2: 507. 86. Joseph Story, Commentaries on the Constitution of the United States, 5th ed. (Boston: Little, Brown, and Company, 1891), 2:342. 87. Ibid., 341. 88. Elliot, Debates 4: 120. 89. Ibid., 264–5. 90. The debate on the treaty-making power created great tension. See Adler, “Framers and Treaty Termination,” 895–9. 91. Federalist No. 64, 421. 92. Madison to Edmund Pendleton, January 2, 1791, 1 Writings of James Madison, 523–4. 93. 299 U.S. 304 (1936). 94. Justice Robert H. Jackson dismissed Sutherland’s musing as “dictum.” Youngstown Co. v. Sawyer, 343 U.S. 579, 636 N. 2 (1952). 95. 10 Annals of Congress 613 (1800). 96. Edward S. Corwin, The President: Office and Powers, 3rd ed. (New York: New York University Press, 1948), 216. 97. Writings of Thomas Jefferson, ed., P. L. Ford (1895), 6: 451. 1 Writing of James Madison 615–16 (1884). 98. 299 U.S. at 328. 99. Quoted in Berger, “The President’s Unilateral Termination of the Taiwan Treaty,” Northwestern University Law Review 75 (1980): 591. 100. The Court has repudiated the theory several times. See, for example, Reid v. Covert, 324 U.S. 1 (1957). For discussion, see Adler, “Constitution and Warmaking,” 29–35; Lofgren, “United States v. Curtiss-Wright Export Corporation: An Historical Reassessment,” Yale Law Journal 83 (1973):1–28; Fisher, Presidential War Power, 69–73. 101. See, for example, Regan v. Wald, 468 U.S. 243 (1984); Haig v. Agee, 453 U.S. 280 (1981); Goldwater v. Carter, 444 U.S. 996 (1979); Zemel v. Rusk, 381 U.S. 1 (1965); United States v. Pink, 315 U.S. 552 (1942); United States v. Belmont, 301 U.S. 324 (1937). 102. Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004). 103. John Yoo and Robert Delahunty: Memorandra for William J. Haynes II, General Counsel, Department of Defense,” January 9, 2002; Jay S. Bybee, assistant attorney general, “Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department of

The President as King

189

Defense,” January 22, 2002; Alberto R. Gonzales, “Memorandum for the President: Decision RE: Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda ad the Taliban,” January 25, 2002. 104. Dated February 7, 2002, the president’s memo is titled, “Humane Treatment of Al Qaeda and Taliban Detainees.” 105. At a news conference on June 22, 2004, Gonzales, in answer to a question about the “Bush position” on the treatment of detainees, stated that the president “has not exercised his Commander-in-Chief override.” Quoted in Jinks and Sloss, “Is the President Bound?” note 22. 106. The Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 6 U.S.T. 3115 (Geneva I); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed forces at Sea, 6 U.S.T. 3217 (Geneva II); Geneva Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3517 (Geneva III); and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 6 U.S.T 337 (Geneva IV). 107. Theodore Meron has observed that “Geneva law . . . emphasizes protection of the victims of war, the sick, the wounded, prisoners, and civilians.” Meron, “The Humanization of Humanitarian Law,” American Journal of International Law 94 (2000): 239, 243. 108. Geneva III, art. 13. 109. Ibid., art. 17. 110. Yoo/Delahunty Memo, 1. 111. Geneva III. 112. Yoo/Delahunty Memo, 17. 113. Yoo/Delahunty Memo, 28–9, quoting Adler, Termination of Treaties, 187. The Bybee Memo quotes the same passage from my book, affirming the influence of the Yoo/Delahunty Memo, Bybee Memo, 13. 114. For example, the Continental Congress ordered Washington to Massachusetts to take command of the United Colonies. See Journals of the Continental Congress, 34 vols. (1904–1937), 2:101. Washington was instructed to intercept two British vessels on October 5, 1775 (3: 276). 115. 6 U.S. (2 Cranch) 170, 177–8. 116. War Crimes Act, Pub. L. No. 104–92, 110 Stat. 2104 (1996). 117. Francis D. Wormuth and Edwin B. Firmage, To Chain the Dog of War (1986), 165. 118. See the discussion in Adler, “The Steel Seizure Case and Inherent Presidential Power,” Constitutional Commentary 19 (2002): 155, 163–79. 119. The framers followed Madison’s advice that presidential power “shd. Be confined and defined.” 2 Farrand 65–70. See Adler, “Presidential Warmaking,” 14–17; Scigliano, “The President’s Prerogative Power,” in Thomas E. Cronin, ed., Inventing the American Presidency (Lawrence, KS: University Press of Kansas, 1989), 236–56.

This page intentionally left blank

Chapter Nine Conclusion: The American Presidency in a Post 9/11 World Thomas E. Cronin

The impact of 9/11 and of the ever-changing terrorist threat gives more power to the imperial presidency and places the separation of power ordained by the Constitution under unprecedented and at times unbearable strain. —Arthur M. Schlesinger, Jr., War and the American Presidency, 2004 The unrepublican veneration of our presidential “leader” has made it uniquely difficult for Americans to see their country’s behavior as others see it. —Tony Judt, “The New World Order,” The New York Review of Books, July 14, 2005 A state of war is not a blank check for the president . . . history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others. —Justice Sandra Day O’Connor, Hamdi v. Rumsfeld (2004)

The American presidency is a uniquely necessary, and always potentially dangerous, leadership institution. The framers of the U.S. Constitution were aware of this: they knew that if they designed a presidency with too much power, they risked ending up with an arbitrary tyrant, yet if they designed a presidency with too little power, the nation might not have the decisive leadership needed in times of emergency. Today, 11 generations later, we face the same questions the framers faced: what kind of president do we need, and what kind of presidency do we want? After the attacks of September 11, 2001, President George W. Bush exhibited bold, decisive leadership. Yet with the war and trying and costly occupation of Iraq, the controversial USA PATRIOT Act and civil liberties issues, and the gnawing questions about motivation and honesty surrounding out Middle East policies, the president and his administration have challenged principles of the Constitution and the system of checks and balances that are

192

Thomas E. Cronin

at the very heart of American democracy. Rumbling like a distant tidal wave in the country today is a sense of unease, an unspoken fear that the United States may not be able to win this new and apparently constant war on terror while still remaining true to who we are, to our cherished constitutional and democratic principles. The dangers we face at the beginning of the twenty-first century—from extremism and terrorism, but also from the doctrine of preemptive war, and the suspension of the writ of habeas corpus—require a searching reappraisal of the Constitution and constitutional practices. And like the framers, who tackled the issue with imagination and commitment, we again need to ask: what kind of presidency do we really want? Protection from attack—whether from external or internal threat—is a prime obligation for any nation. Thus it was that the American founders specified commander-in-chief authority when war is authorized, and thus Lincoln, Wilson, FDR, Truman and several recent presidents have assumed broader executive powers as they sought to protect the nation’s security. Yet the lesson of the Japanese incarceration cases from the 1940s, the Harry Truman steel mills seizure, the Watergate break-ins, the Pentagon Papers scandal, the famous U.S. v. Nixon court ruling in 1974, and the Iran–Contra escapades in the 1980s is that presidents are not above the law, even in times of emergency. War has always nourished the possibility of an imperial presidency and the abuse of powers. “War,” said James Madison in 1795, “is in fact the true nurse of executive aggrandizement.”1 Almost every war and national emergency has tested our values and constitutional principles. The events of 9/11 transformed the Bush presidency and led to two wars, the USA PATRIOT Act, the creation of an 180,000 person Homeland Security Department, and a variety of constitutional clashes in the courts. Bush was not shy about justifying strengthened presidential war-making and related emergency powers. Bush consciously assumed fellow Republicans Teddy Roosevelt’s and Ronald Reagan’s view of a vigorous assertive presidency. But by promoting the doctrine of “preemptive” or preventive war, and by denying U.S. foreign suspects the civil liberties routinely assured in the United States, Bush seemed to many observers to be acting outside of the Constitution and our Bill of Rights.2 There is widespread agreement that the post–9/11 roundup of illegal immigrants was excessive and in some cases, violated the rights of innocent individuals. The Bush administration has also been accused of abducting suspects here and abroad and deporting them to other nations where they can be imprisoned or tortured as part of interrogation (the so-called policy of rendition.)3 “The use of military force by President George W. Bush against Iraq poses a threat to constitutional government, civil liberties and national security,” says Louis Fisher. “It represents the culmination over the past 50 years of unilateral presidential wars accompanied by few checks

Conclusion

193

from Congress or the judiciary.”4 The American framers rejected the notion of presidents initiating war. Their sense of history, as Fisher reminds us, held that executives often commenced wars more for personal, political, partisan, or even family reasons than they did for valid reasons of national interest. The American framers plainly took a narrow view of the commander-inchief authority. Abraham Lincoln, while serving in Congress, cautioned his countrymen that the Philadelphia convention had resolved to so frame the Constitution that no one man should hold the power of bringing the oppression of war upon us. Yet in recent generations the American people and the Congress have placed enormous amounts of military power in the hands of their presidents. The Iraq War, critics now say, has resurrected the imperial presidency once associated with LBJ and Richard Nixon, and with it has come a cavalier disrespect for individual freedoms and due process. Historian Arthur M. Schlesinger, Jr. writes that the contemporary presidency, sadly, “has come to see itself in messianic terms as the appointed savior of a world whose unpredictable dangers call for rapid and incessant deployment of men, arms, and decisions behind a wall of secrecy.” He adds, “This seems hard to reconcile with the American Constitution.”5 The United States now has troops at over 700 military bases in 60 nations, and a president who has deep suspicions of international law, serious reservations about the Geneva conventions, and implicit, if not explicit, contempt for the United Nations. “The years when the United States appeared as the hope of the world now seem long distant,” write international affairs scholars Robert Tucker and David Hendrickson. “Washington is hobbled by a reputation for the reckless use of force and it is going to take a long time to live that down. World public opinion now sees the United States increasingly as an outlier—invoking international law when convenient, and ignoring it when not; using international institutions when they work to its advantage, and disdaining them when they pose obstacles to U.S. design.”6 George W. Bush has assuredly not been the only president who seems to relish clashes with Congress and the courts. Presidents and the Congress regularly try to reassert their authority. FDR, LBJ, Reagan, and Clinton have all stretched and strained the legal limits of their office.7 Many writers on the American presidency believe we regularly need Hamiltonian energy in the presidency to make our Madisonian system of separation of powers work, in order to advance the Jeffersonian, Lincolnian, and Rooseveltian goals of freedom, liberty, justice, and equality.8 Yet neither the president nor the Congress is always right. “That is why the Constitution provides for ‘joint possession’ and enjoins partnership,” writes Arthur Schlesinger, Jr. “Congress must recognize that it cannot conduct day-to-day foreign relations. The president must understand that no foreign policy can last that is not founded on popular understanding and

194

Thomas E. Cronin

congressional consent.” Schlesinger adds, It would be a mistake to surrender to a romantic view of the superior wisdom of Congress. The legislative branch can be just as wrongheaded, impulsive, emotional, gullible, and dishonorable as the executive . . . . Sometimes presidents are wiser and better informed; sometimes they aren’t.9

Each incumbent defines and exploits, up to a point, the formal and latent authority that exists in the modern-day presidency. Circumstances, personality, the nature of the times and public expectation as well as the party that controls Congress, all play a role in how a president exercises leadership and power. Presidents have to live with the persisting ambivalence most Americans have toward power and governmental leadership. We want leadership, yet we also want to be free. We admire the purposeful use of power yet we fear that it may be abused if it is not adequately checked. And we doubtless love our country and its heritage of liberty yet we have never particularly liked government itself, and we are especially frustrated by the constant bickering that takes place between Congress and the White House and between the two major parties.10 In the aftermath of 9/11, Americans most certainly welcomed assertive and authoritative antiterrorism presidential activism. Yet as time passed and mistakes and excesses become understood and when $250 billion or more was spent on various war initiatives, even those who supported the president became frustrated if not outright critical of his judgment and brand of presidential leadership. Bush plainly responded to American’s wishes for strength, protection, and even revenge, perhaps over responded, yet as time passed, Americans also made it clear they wanted honesty, explanation, admission of mistakes and abuses, and wanted the White House to adhere— at least in broad terms—to the accepted guidelines of constitutionalism. Thus, as Bush learned, Americans simultaneously wanted firm, forceful presidential leadership that would prevent terrorist attacks on our homeland, and Americans also feared a president who sometimes sounded too self-assured, smug, and at times, infallible as well as engaged in excessive unilateralism. The following list of troubling developments in the George W. Bush presidency points to a number of constitutional concerns: ● ●

● ● ● ● ●

Disregard for the United Nations and international law. The claim that the U.S. has the right to engage in preemptive or preventive wars. Suspension of habeas corpus rights. Excessive round-up of illegal aliens. Misuse and mismanagement of intelligence agencies. Prisoner abuse at Abu Ghraib, Guantanamo and elsewhere. Illegal rendition policies.

Conclusion ●

●

● ●

195

Unilateralism in foreign affairs; strained relations with traditional allies. Executive branch subsidies and commissions for supportive cheerleading members of the press. White House leaks about a Central Intelligence Agency operative. Discouragement of dissent and debate about the validity of war initiatives.

The overall pattern raises both perennial questions about the presidency and constitutionalism, as well as new questions shaped by twenty-first century realities. Here are some of the enduring questions about the presidency and constitutionalism: 1. Is the war-making authority of the U.S. Congress now all but irrelevant and obsolete? 2. Do we have one Constitution for peacetime and yet another for times of war, or in times of permanent terrorist threat? 3. How do we balance patriotism with questioning the policies of a wartime presidency—during election years and in between? 4. What are the valid and necessary sources of American legitimacy in international relations? 5. Granted that vast military powers have been placed in the modern presidency, arguably excessively so, but where else can they or should they be placed? 6. Both conservative and liberal advocates of a stronger Hamiltonian presidency have long held that Congress and the courts sometimes need to permit greater leeway to presidents than may be explicitly spelled out either in the Constitution or in the law. If so, should we amend the Constitution and rewrite the laws to reflect this? And here are yet newer questions, sharpened by recent developments: 1. What is the legitimacy of the doctrine of preemptive, preventive war? 2. Does a president have the authority to imprison individuals as enemy combatants just by declaring such without due process and judicial review? 3. Can a president order a military pilot to shoot down a civilian airplane in the name of national security? 4. What is the proper role for the federal courts and the Congress in a post–9/11 era? 5. Is there a new paranoia (McCarthyism) shaping the USA PATRIOT Act, the Homeland Security Department and our treatment of suspects? 6. What constitutes legitimate military or humanitarian intervention in the twenty-first century—Iraq, Darfur, Rwanda, Kosovo? How and why do we decide to stand aside, intervene, and when to act?

196

Thomas E. Cronin

7. What is our position in the international community and in the UN if we choose to act unilaterally? 8. What is the desirable U.S. stance toward the Geneva Conventions and the Kyoto Treaty? 9. Can the United States continue to be a democratic republic at home while acting as an imperial power abroad? The importance of these questions is heightened by several new realities: ●

●

●

●

●

The United Nations is exceptionally weak and slow to react to international crises. Americans are divided about what role the United States should play in humanitarian and world policing activities. While America has several new economic and political rivals, it continues to spend more on defense and war preparations than all of the rest of the nearly 200 nations combined. Clashing cultures or civilizations, which have always existed, have more than replaced the tensions of the old Cold War. The world appears to be losing faith in America’s intentions and example.

Conservative supporters of President Bush viewed the United Nations as irrelevant and held that only the United States could and had to stand up to the Taliban, Saddam Hussein, North Korea, Iran, and whoever threatens U.S. security interests. We had to act, they said, because if we did not, we would be virtually inviting more terrorist attacks and even nuclear attacks from this new enemy. They add: war is, of course, awful and to be avoided as much as possible; covert operations by the CIA—whether rendition policies or severe interrogation techniques—are a necessity of war and if they succeed in preventing terrorist attacks on American soil, these policies may have hundreds of thousands of American lives. Theirs is a message that won approval from Congress, from the American people, from Tony Blair, from Hillary Clinton, and seemed to be validated in the presidential and congressional election results in 2004. But most Americans were also uneasy about the emergence of an American empire and worried about the costs in terms of human life, economics, and the freedoms of the Bill of Rights. Many fear what New York University Professor Tony Judt may be correct when he argues In the longer run no country can expect to behave imperially—brutally, contemptuously, illegally—abroad while preserving republican values at home. For it is a mistake to suppose that institutions alone will save a republic from the abuses of power to which empire inevitably leads. It is not institutions that make or break republics, it is men. And in the United States today, the men (and women) of the country’s political class have failed. Congress appears helpless to impede the concentration of power in the executive branch; indeed,

Conclusion

197

with few exceptions it has contributed actively and even enthusiastically to the process.11

Bush’s credibility was dealt with repeated blows when he first justified the Iraq campaign with first weapons of mass destruction (which never appeared), then with the notion that Iraq had the intention to make WMD (also not significantly proven), and finally with the idea that the world will be safer if we can bring democracy to the Middle East. All but gone is any rationale for a preemptive war. Further Bush seriously underestimated the Sunni resistance to the U.S. occupation of Iraq, exaggerated our successes (“mission accomplished”), and miscalculated that the role of Iraq’s oil industry might be able to play in rebuilding the Iraqi infrastructure. Suddenly we are engaged in nation-building without any significant planning, in a nation that may not want us there as a nation-builder.12 As a result, just 41 percent of Americans by mid-2005 gave Bush “high ratings for being ‘honest and straightforward’ while 45 percent now give him low marks.” Public approval ratings for how he was doing as president took a nose-dive from a historic high of over 90 percent to barely 45 percent in mid-2005.13 Bush also began losing several court cases in the federal district courts, as well as at the Supreme Court. Even one of his own Republican appointees to the federal court, Judge Henry F. Floyd of South Carolina, felt compelled to write that “the court finds that the President has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioners as an enemy combatant [to address that] would not only affect the rule of law and violate this country’s traditions, but it would also be a betrayal of this nation’s commitment to the separation of powers that safeguards our democratic values and individual liberties.” Floyd concluded that President Bush lacked the authority to hold Jose Padilla, a U.S. citizen arrested in Chicago on suspicion of terrorism in May 2002, in indefinite military custody. “Simply stated,” Floyd wrote, “this is a law enforcement matter, not a military matter.”14 Similarly, the Supreme Court ruled in 2004 that foreign prisoners held at Guantanamo Bay have the constitutional right to contest their detentions in a federal court. In effect, the court, in a series of rulings, held that the Bush administration needed to provide due process for detainees and so-called enemy combatants. The very notion of a president having the authority to indefinitely incarcerate American citizens or foreign-born nationals without charge, without access to counsel and without judicial review struck not only judges but many Americans as arbitrary and dangerous. What kind of a presidency do we need and want for the rest of the twenty-first century? Right-leaning and left-leaning advocates will differ, yet it should be in everyone’s interest to want to restore America’s legitimacy as an agent of international peace and prosperity. All of us should want to strengthen constitutional practices and the rights and liberties so elegantly laid out in our Bill of Rights. And, most assuredly, all of us should want to prevent nuclear war and terrorism.

198

Thomas E. Cronin

These aspirations are as challenging as they are worthy. But they are absolutely worth debating against the practicalities of today’s new realities. Freedom and liberty cannot be spread by the military alone. Understanding of one another’s cultures is as important today as economic development. A strengthened and more creative UN and World Bank are essential. More realistic, foreign aid strategies are needed. The role of the Peace Corps and international agreements such as the Geneva Convention and the Kyoto Treaty have to be taken more seriously—even if they may have to be modified or adapted to new realities. We need also to appreciate the paradoxes of American presidential leadership. As noted earlier, we want visionary leadership, yet not dogmatism. We want self-confidence and decisiveness, yet we are inherently and justifiably suspicious of leaders who act alone and do not explain and persuade the nation as to the proper course of action. We want a president who is a forceful commander in chief in wartime, yet we also want a vital constitutional democracy. We want a president who will work with Congress and the opposition party, and will listen as well as lead, will be reflective as well as decisive. We need to celebrate politics and political discourse. We need to encourage debate and healthy dissent. And, most of all, we need to encourage imagination about the type of presidential leadership we want. Let us imagine the ideal qualities and character of president and the presidency that might heal the rampant ill-will toward the United States and much of our recent foreign policy. Let us imagine pragmatic, sensible, coalitionbuilding, yet unifying leadership that will help reclaim America’s role as the hope of those who dream of liberty, justice, and constitutional democracy: ●

●

●

●

●

●

Imagine a president who will defend American sovereignty, yet work to restructure as well as strengthen the United Nations as a more effective peacekeeping force. Imagine a president who will reach out to both traditional allies and new allies to contain nuclear proliferation and combat terrorism. Imagine a president who recognizes the importance of generally accepted international law and agreements such as the Geneva Convention, and who work to fashion new approaches toward world peace and civility. Imagine a president who welcomes real debate about foreign policy, and who might agree with the late U.S. Senator Robert Taft of Ohio when he said back in the 1940s, “there can be no doubt that criticism in time of war is essential to the maintenance of any kind of American government.”15 Imagine a president who fully understands constitutionalism, and who recognizes the real partnership the Congress must play in shaping national security and foreign policy and in deciding about going to war. Imagine a president who strengthens our democratic goals of justice and equality on the domestic front at the same time he or she argues for the possibilities of freedom and democracy abroad.

Conclusion ●

●

●

●

●

199

Imagine a president who can admit mistakes and reverse course if it is the right thing to do for the national interest. Imagine a president who condemns abuses of the Abu Ghraibs, whether run by the Saddam Husseins, the Americans, or anyone else. Imagine a president who fashions a policy of energy independence and aggressively invests in renewable energy alternatives and serious energy conservation. Imagine a president who becomes a world leader on issues of malaria, AIDS, landmines, poverty, and global warming. Imagine a president who acts by example, as Justice Louis Brandeis imagined when he wrote: “Our government is the potent, the omnipresent teacher . . . it teaches the whole people by its example . . . . If the government becomes a lawbreaker, it breeds contempt for the law, it invites every man to become a law unto himself.”16

Yet, this is a lot to imagine, but we have paid too high a price for not imagining a better and appropriately constitutional presidency. The American presidency has changed not only because of 9/11, but because of an ever changing and highly complicated balance of powers, nuclear proliferation, new technologies, and the rise of both new industrial and information age giants such as India and China. We need today a sustained debate about the kind of presidency we want, a debate that acknowledges both the new realities of the twenty-first century and the enduring values of liberty, justice, and equality that have shaped our constitutional republic.

Notes 1. James Madison, from “Political Observations,” April 20, 1795, in Letters and Other Writing of James Madison, vol. 4 (Philadelphia: J.B. Lippincott, 1867), 491. 2. Anthony Lewis, “A President Beyond the Law,” The New York Times, May 7, 2004, A25. See also Guantanamo and Beyond: The Continuing Pursuit of Unchecked Power (Report of the United States Amnesty International, May 2005). 3. Elizabeth Poroledo, “Italian Leader Chastises U.S. in Kidnapping Case in Milan,” The New York Times, July 2, 2005, A4. 4. Louis Fisher, “From Presidential Wars to American Hegemony: The Constitution After 9/11,” paper delivered at the Dilemmas of Democracy Conference, Institute for Leadership Studies, Loyola Marymount University, Los Angeles, California, February 7, 2005. 5. Arthur M. Schlesinger, Jr., War and the American Presidency (New York: W.W. Norton, 2004), 66. 6. Robert W. Tucker and David C. Hendrickson, “The Sources of American Legitimacy,” Foreign Affairs (November/December 2004): 32. See also Andrew J. Bacevich, The New American Militarism: How Americans Are Seduced by War (Oxford: Oxford University Press, 2005). 7. See, for example, David Gray Adler and Larry George, eds., The Constitution and the Conduct of American Foreign Policy (Lawrence, KS: University Press of

200

8.

9. 10.

11. 12.

13. 14.

15. 16.

Thomas E. Cronin Kansas, 1996) and David Gray Adler and Michael Genovese, eds., The Presidency and the Law (Lawrence, KS: University Press of Kansas, 2002). See Clinton Rossiter, Constitutional Dictatorship (Princeton, NJ: Princeton University Press, 1948); James MacGregor Burns, Presidential Government (Boston: Houghton Mifflin, 1966); Terry Eastland, Energy in the Executive: The Case for a Strong Presidency (New York: Free Press, 1992). Arthur M. Schlesinger, Jr., “Foreword” to Adler and George, The Presidency and the Law, xi. I have discussed the notion of presidential paradoxes in Thomas E. Cronin and Michael A. Genovese, The Paradoxes of the American Presidency, 2nd ed. (Oxford: Oxford University Press, 2004), Chap. 1. Tony Judt, “The New World Order,” The New York Review of Books, July 14, 2005, 17–18. See James Fallows, “Blind into Baghdad,” The Atlantic Monthly (January/ February 2004); available at http://www.theatlantic.com/doc/prem/200401/ fallows. Accessed August 14, 2005; Larry Diamond, “What Went Wrong in Iraq,” Foreign Affairs (September/October 2004); available at http:// www.foreignaffairs.org/20040901faessay83505/larry-diamond/what-wentwrong-in-iraq.html. Accessed August 14, 2005; David C. Hendrickson and Robert W. Tucker, “Revisions in Need of Revising: What Went Wrong in the Iraq War,” Survival (Summer 2005), available at http://www.strategicstudiesinstitute.army.mil/pdffiles/PUB637.pdf. Accessed August 14, 2005. See also, for a broader context, Samuel P. Huntington, The Class of Civilizations and the Remaking of World Order (New York: Simon & Schuster, 1996). John Harwood, “Public Losing Faith in Bush,” Wall Street Journal, July 14, 2005, A4. Quoted in Keith Perine, “Court Rulings Erode Base of Imprisonment Policy,” CQ Weekly, March 7, 2005, 555. See also Neal A. Lewis, “Judge Says U.S. Terror Suspect can’t be Held as an Enemy Combatant,” The New York Times, March 1, 2005, A14. Sen. Robert Taft, December 19, 1941. From The Papers of Robert Taft (Kent, OH: Kent State University Press, 1997), 303. Olmstead v. U.S., 277 U.S. 438 (1928).

Index Abizaid, John, 45 Abrams, Elliott, 36, 40 Abu Ghraib prison, 93, 175, 180, 194, 199 Acheson, Dean, 28 Ackerman, Bruce, 18 Adams, John, 15, 26, 121, 168, 178, 182–3 Addington, David, 93, 104, 105, 114n Aftergood, Steven, 63 Albany Plan of Union, 5 Al Qaeda, 84, 85, 86, 90n, 164, 181 American Revolution, 4, 168 Anti-Ballistic Missile (ABM) treaty (1972), 150, 175, 180 Aristotle, 38 Armitage, Richard, 149 Arthur, Chester, 57 Articles of Confederation, 4, 5–6, 166, 170 Ashcroft, John, 57, 60, 61–7, 105, 180 Attorney General, Office of, 54–7 Authorization for Use of Military Force in Afghanistan (2001), 81, 83, 87, 102, 164, 165, 172–3, 174, 180 “axis of evil,” 36, 149 Aznar, Jose Maria, 152 Bailyn, Bernard, 6 Baker, James A. III, 140, 142, 143, 145, 146 Barbary Wars, 26, 30 Barroso, Jose Manuel Durao, 152 Bas v. Tingy (1800), 79 Bates, Edward, 57 Bessette, Joseph, 37 Biddle, Francis, 56 Bill of Rights, 53, 54, 55, 74, 161, 192, 196, 197 bin Laden, Osama, 38, 164 Blair, Tony, 152, 196

Bloom, Allan, 36 Blount, William, 26 Boland Amendments (1980s), 79 Bolton, John, 36 Bossidy, Larry, 44 Brandeis, Louis, 199 Brewster, Benjamin, 57 Brown v. Board of Education of Topeka (1954), 75 bully pulpit, 119, 122, 124, 128, 133, 134 Burke, John, 44 Burnham, James, 35 Burns, James MacGregor, 121, 122, 129 Bush, George H. W., 34, 121, 139, 142–7, 148, 150, 153, 160 Bush, George W., 1, 2, 23, 29, 36, 38, 41–2, 44, 45, 46, 47n, 57, 78, 80, 82, 85, 93, 120, 121, 126–31, 133, 134, 136n, 139, 147–53, 160, 163, 164–5, 167, 170, 171, 172–3, 175, 178, 180, 181, 183–4, 188n, 191–7 Butler, Pierce, 8, 24, 166, 167 Butler, Weedon, 8 Bybee, Jay, 93, 94, 105 Carmichael, Stokely, 58, 60 Carroll, Lewis, 110 Carter, Jimmy, 36, 55, 89n, 121, 160, 175, 178, 187n Case-Zablocki Act (1972), 79 Central Intelligence Agency (CIA), 46, 195 Chamberlin, William Henry, 35 Chambers, Whittaker, 35 Charan, Ram, 44 checks and balances, constitutional, 73–7 Cheney, Dick, 34, 41, 45, 93, 104, 114n, 144, 145, 149, 153

202

Index

Christopher, Warren, 69n Churchill, Winston, 32, 34 Civil Rights Act (1964), 75 Civil War, ix, 1, 26, 79, 97, 101, 113n Clark Amendment (1976), 79 Clark, Ramsey, 57, 58–60, 67 Clark, Tom, 58 Clinton, Bill, 28, 120, 121, 122, 124, 125–6, 127, 128, 129, 130, 133, 134, 136n, 148, 149, 160, 193 Clinton, Hillary Rodham, 152, 196 Cold War, viii, ix, 1, 2, 17, 31, 81, 140, 141, 142, 144, 152, 159, 175, 196 Commager, Henry Steele, 29–31 commander in chief power, 2, 9, 26–7, 65, 66, 71n, 78, 83, 85, 86, 87, 94, 95–104, 110–11, 167–70, 175, 178, 180–3, 186n, 192, 193 Congressional Budget and Impoundment Control Act (1974), 79 congressional oversight, 65, 76 Congressional Resolution Authorizing Force Against Iraq (2002), 151, 164, 172–3, 174 constitution, ratification of, 24 Constitutional Convention (1787), 6, 23, 165, 176, 193 Continental Congress, 168, 176, 182, 189n Corwin, Edward S., 13, 27, 32, 179 Creek Nation, 26 Cronin, Thomas E., 29 Cross v. Harrison (1853), 98 Cuban Missile Crisis (1962), 32 Cummings, Homer, 57 Dahl, Robert, 53 Dallek, Robert, 58, 69n Dana, Richard Henry Jr., 27 Daugherty, Harry, 57 Davie, William, 177 Declaration of Independence, vii, 4, 35 Delahunty, Robert, 180–2 deliberative democracy, 122, 132, 134 Department of Navy v. Egan (1988), 99–100 Divine Right of Kings, 3–4 Eastman, Max, 35 Edwards, George C. III, 126, 132

Eisenhower, Dwight D., 31, 34, 44 Electoral College, 7, 15 enemy combatants, 23, 66, 67, 82, 83, 84, 85, 87, 97, 114n, 180, 195, 197 Epstein, Lee, 55, 107–8 Ervin, Sam, 174 Ethics in Government Act (1978), 79 executive privilege, 89n Federalist 4, 25 Federalist 47, 163 Federalist 48, 53 Federalist 51, 1, 12, 14, 119 Federalist 64, 178 Federalist 69, 16, 169–70 Federalist 70, 13, 119 Federalist 75, 163, 176 Fein, Bruce, 105 Feith, Douglas, 36, 39 Feldman, Noah, 43 Fifth Amendment, 84 First Amendment, 59, 64, 122, 161 Fisher, Louis, 55, 75, 77, 82, 95, 106, 172, 192–3 Floyd, Henry F., 197 Ford, Gerald, 121, 122, 143, 160 foreign affairs powers, 162 Foreign Assistance Act (1964), 79 Fourteenth Amendment, 75 Fourth Amendment, 161 Frankfurter, Felix, 174 Franklin, Benjamin, 5, 8 Freedom of Information Act (FOIA), 62 Friedman, Lawrence, 108, 110 Frum, David, 36 Fukuyama, Francis, 42–3 Geneva Conventions, 78, 82, 84, 86, 87, 90n, 161, 175, 180–4, 193, 196, 198 Gergen, David, 122, 131 Gerry, Elbridge, 25, 166 Ginsberg, Benjamin, 16 Gonzales, Alberto, 55, 88n, 90n, 93, 94, 104, 112n, 114n, 180, 181, 188, 189n Gorbachev, Mikhail, 146 Gore, Al, 127, 148 Goss, Porter, 46

Index

203

Great Society, 42, 59 Green, Joyce Hens, 83, 84 Greenstein, Fred I., 44, 127, 134, 141 Gregg, Gary L., 127 Grier, Robert, 26–7 Guantanamo Bay, 19, 66, 67, 82–5, 86, 90n, 93, 94, 161, 175, 180, 181, 182, 194, 197 Gulf of Tonkin Resolution (1964), 33, 174

International Criminal Court treaty, 150 internment of Japanese-Americans, 56, 192 Iran, American hostages in, 160 Iran-Contra, 192 Iraq Liberation Act (1998), 40, 148 Iraq War (2003), 23, 29, 33, 38, 42, 43, 93, 129, 139, 148, 193 Iredell, James, 167, 169, 170, 172 Iroquois Confederation, 5

habeas corpus, 57 Haig v. Agee (1981), 100 Haight, David E., 10 Hamdan v. Rumsfeld (2004), 85, 86 Hamdi v. Rumsfeld (2004), 66, 81, 82, 84, 87, 101, 102, 103, 104, 105, 180, 191 Hamdi, Yaser, 66 Hamilton, Alexander, 4, 6, 12–13, 15, 78, 119, 163, 168–9, 170, 175, 176, 177, 193 Hamilton v. Dillon (1874), 96, 97–9, 103, 113n Hart, Roderick, 123 Hayek, Friedrich A., 37 Haynes, William J. II, 93, 112n Hendrickson, David, 193 Henkin, Louis, 170 Henry, Patrick, 15, 186n Hitler, Adolf, 32 Holmes, Oliver Wendell, 110 Holocaust, 35 Homeland Security Act, 62 Hoover, J. Edgar, 59, 63 Hughes, Charles Evans, 173–4 Hughes-Ryan Amendment (1974), 79 Hussein, Saddam, 36, 39, 40, 42, 43, 46, 139, 143, 144, 146–53, 156n, 157n, 196, 199

Jackson, Andrew, 2 Jackson, Robert, 56, 88, 113n Jay, John, 6, 15, 25, 46, 177 Jefferson, Thomas, 2, 13, 15, 25, 26, 30, 53–4, 120, 179, 187n, 193 Johnson, Lyndon B., 25, 31, 33, 44, 46, 57, 58–60, 121, 125, 160, 193 Johnson, Reverdy, 57 Johnston, Larry D., 10 Judiciary Act (1789), 54 Judt, Tony, 191, 196–7

impeachment, 76, 79 imperial presidency, 1, 2, 16, 18, 19, 37, 58, 67, 68, 77–8, 80, 82, 89n, 125, 159, 160, 171, 191, 192, 193 In re Guantanamo Detainee Cases (2004), 83, 84 International Convention against Torture (1994), 94

Kagan, Robert, 39, 40 Kaplan, Lawrence, 39, 42 Kendall, Willmoore, 35, 37 Kennedy, John F., 121, 127, 130 Kennedy, Robert F., 59 Kent, James, 184 Kernell, Sam, 132 Kerry, John, 129, 131 Khalid v. Bush (2004), 83 Khalilzad, Zalmay, 36, 39 King, Gary, 107–8 King, Martin Luther Jr., 59 King, Rufus, 165, 166 Knox, Henry, 26 Knox, Philander, 57 Korean War, 1, 27–8, 29, 30, 31–2, 33, 43, 79, 146 Korematsu v. U.S. (1944), 79, 102 Kosovo, military campaign (1999), 28–9 Kristol, Irving, 37–9 Kristol, William, 36, 39, 40, 41, 42 Kuwait, Iraq invasion of (1990), 142 Kyoto Treaty, 149, 196, 198 Lans, Asher, 179 law reviews, 106–10

204

Index

Lee, Richard Henry, 168, 182 Lee, Wen Ho, 61 Leeden, Michael, 38 Legal Counsel, Office of, 55 Legare, Hugh, 57 Leon, Richard, 83, 87 Levin, Daniel, 111n Libby, I. Lewis (Scooter), 36, 39, 41 Life of Galileo, 19 Lijphart, Arend, 53 Likud Party, 39 Lincoln, Abraham, ix, 1, 26–7, 57, 97, 99, 101, 102, 113n, 120, 121, 192, 193 Lind, Michael, 19 Little v. Barreme (1804), 79, 102, 183 Livingston, R. K., 167 Locke, John, 5 Logan, George, 171 Lord, Carnes, 36 Lowi, Theodore, 16 Lyons, Eugene, 35 MacArthur, Douglas, 28, 31 Machiavelli, Niccolo, 36 Madison, James, viii, 1, 4, 7, 12, 13, 14, 15, 19, 25–6, 30, 53, 54, 73, 74, 75, 77, 95, 119, 161, 163, 165, 166, 171, 173, 176, 177–8, 179, 182, 184, 187n, 189n, 192, 193 Mansfield, Harvey C. Jr., 6 Marbury v. Madison (1803), 161 Marshall, John, 26, 96, 161, 173, 178–9, 183 Marx, Karl, 35 Mason, George, 6, 25, 166, 186n Mayaquez incident, 160 Mayer, Kenneth, 107 McCloskey, Robert, 186n McDougal, Myres, 179 McGovern, George, 36, 39, 126 Meet the Press, 129 military tribunals, 19, 23, 65–7, 82, 85–7, 88, 89n Mill, John Stuart, 172 Milligan, Ex parte (1866), 79 Miroff, Bruce, 121, 129 Monroe, James, 186n Montesquieu, 5 Muravchik, Joshua, 37

Mussolini, Benito, 32 Mutual Defense Treaty (1954), 175 Myers, Frank, 35 Nash, George, 34 National Emergencies Act (1976), 79 National Review, 35 “National Security Strategy” (2002), 38, 41, 42, 81, 149, 171 Nazi saboteur trial (1942), 56 neoconservatives, 23, 33–5, 36–40, 42–3, 51n Neustadt, Richard, 11, 29, 31–3, 140, 141, 142, 153–4 Newburgh Conspiracy, 6 New Deal, 76, 160 New Jersey Plan, 168, 169 new media, 125 new world order, 144, 146 New York Times, 104 New York Times v. Sullivan (1964), 122 New York Times v. U.S. (1971), 76, 80 9/11 attacks, 33, 54, 61, 80, 81, 83, 85, 88, 128, 129, 139, 141, 148, 164, 172, 180, 191, 192, 193, 199 Nixon, Richard, 31, 76, 78, 79, 121, 122, 125, 126, 142, 143, 160, 193 North Atlantic Treaty Organization (NATO), 28 Northouse, Peter G., 135n O’Connor, Sandra Day, 180, 191 Operation Desert Fox (1998), 148 Oversight Act (1980), 79 Padilla, Jose, 66, 197 Paine, Tom, 4 Palmer, Mitchell, 57 Paterson, William, 168 Patterson, Thomas, 132 Peace Corps, 198 Perle, Richard, 36, 39, 40, 149 Persian Gulf War (1991), 28, 34, 139, 153 Pickering, Thomas W., 143, 146 Pinckney, Charles, 165, 166, 167, 168, 177 Plato, 38 Plessy v. Ferguson (1896), 75 political question, 55

Index Polk, James, 26 Poor People’s Campaign (1968), 59–60 Posner, Richard A., 110 Powell, Colin, 34, 140, 144, 145, 150, 151, 157n Powell v. McCormack (1969), 174 preemption doctrine, 170–2, 192, 195 presidential leadership, 120 presidential powers, 6, 8–12, 26–7, 74–5, 87, 180–4 Prize Cases (1863), 79, 97, 101–2, 103 public leadership, 120 Quirin, Ex parte (1942), 79, 83, 86, 102 Randolph, Edmund, 4, 165 Rasul v. Bush (2004), 66, 82, 84, 85, 87 Rawle, William, 184 Reagan, Ronald, 36, 37, 120, 121, 122, 123, 124, 126, 127, 128, 130, 134, 160, 192, 193 Reid v. Covert (1957), 162 rhetorical presidency, 119, 122, 127 Rice, Condoleezza, 45, 88n, 90n, 148 Rich, Frank, 133 Rip Van Winkle, 17–18 Robbins, Jonathan, 178 Robertson, James, 86 Rockman, Bert, 14, 134 Roosevelt, Franklin D., ix, 1, 31, 56, 57, 76, 120, 121, 127, 130, 178, 182, 192, 193 Roosevelt, Theodore, 119, 120, 121, 192 Rossiter, Clinton, 101, 111, 114n Rubin, James P., 150 Rumsfeld, Donald, 44, 45, 94, 96, 149 Rumsfeld v. Padilla (2004), 82, 84 Rutledge, Edward, 168, 182 Rutledge, John, 5, 165 Schecter Poultry Corp. v. United States (1935), 173–4 Schiff, Adam, 88 Schlamm, William, 35 Schlesinger, Arthur Jr., 2, 29–31, 33, 34, 58, 67, 68, 77–8, 159, 191, 193–4 Schmitt, Gary, 36 Schwartz, Herman, 64

205

Schwarzkopf, Norman H., 145 Scowcroft, Brent, 34, 144, 145, 146 Second Amendment, 110, 115n, 117n Shay’s Rebellion, 6 Sherman, Roger, 6, 25, 166, 185n Shinseki, Eric, 44, 45 Shulsky, Abram, 36, 41 Smith, William, 100 sole organ doctrine, 175, 178–9, 180–3 solicitor general, 54 Southern Christian Leadership Conference, 59 Souter, David, 81 Spaight, Richard, 169 Stalin, Joseph, 32 Stewart, Potter, 74, 120 Story, Joseph, 177, 184 Strauss, Leo, 35–6, 38 Straussians, 35–6, 51n Stuckey, Mary, 123 Sutherland, George, 175, 178–9 Taft, Robert, 30, 198 take care clause, 180, 183, 185n Taliban, 90n, 164, 181–2, 196 Talbot v. Seeman (1801), 79, 96 Taylor, Zachary, 57 Thatcher, Margaret, 143, 145 Tocqueville, Alexis de, 159 torture, 93, 94, 97, 104, 183, 192 torture memos, 180 Torture Victims Prevention Act (1991), 94 transactional leadership, 121 transformational leadership, 121, 124, 130 treaties, 175–8 Truman Doctrine, 34 Truman, Harry S., ix, 1, 2, 27–8, 29, 30, 31–2, 33, 34, 56, 75, 76, 163, 192 Tucker, Robert, 193 Tuesday Group, 60 Tulis, Jeffrey, 122, 131 “two presidencies” thesis, 140, 141, 142, 147, 153 Tyler, John, 57

206

Index

Uniform Code of Military Justice, 100 United Nations, 28, 29, 38, 139, 140, 142–7, 149–53, 156n, 193, 196, 198 United Nations Resolution 1441, 151 U.S. v. Curtiss-Wright Export Corp. (1936), 175, 178, 179 U.S. v. Nixon (1974), 76, 80, 192 USA PATRIOT Act (2001), 63, 81, 161, 191, 192, 195 Utley, Freda, 35 vesting clause, 167, 170 Vietnam War, 25, 28, 30, 33, 36, 37, 42, 43, 44, 46, 55, 57, 58, 59, 60, 76, 78, 79, 81, 101, 126, 142, 147, 172 Virginia Plan (Randolph Plan), 168, 170 Virginia Ratifying Convention, 186n Walker, Mary, 112n Walker, Thomas G., 55 Wall Street Journal, 112n War Crimes Act (1996), 183 war powers, 65, 80, 170–5 War Powers Resolution (1973), 78, 142, 173, 174 war on terror, xiii, 81–2, 93, 180, 192 Warren, Charles, 185n Warren, Earl, 174 Washington, George, 2, 6, 7, 8, 13, 16, 26, 73, 120, 168, 172, 182, 189n Watergate, 30, 78, 192

Wayman v. Southard (1825), 173 weapons of mass destruction (WMD), 139, 151, 157n, 171, 197 Webster, Noah, 4 weekly radio address, 128 White House counsel, 55 White, Thomas, 45 Wildavsky, Aaron, 140, 141, 142, 153, 154n Wills, Garry, 110 Wilson, James, 4, 7, 25, 161–2, 163, 165, 167, 177, 184, 186n Wilson, Woodrow, 1, 192 Wise, David, 46 Wolfe, Alan, 8 Wolfowitz, Paul, 36, 39, 40, 41, 45, 148, 149 Woodward, Bob, 152 Working Group Report (2003), 96, 103, 112n, 114n World Bank, 198 World War II, viii, ix, 1, 79, 80, 86, 181, 184 Wormuth, Francis D., 167 Wurmser, David, 39, 40 Yoo, John, 93, 104, 105–6, 115n, 180–2 Youngstown Sheet and Tube Co. v. Sawyer (1952), 56, 76, 79, 88, 102, 103 Zakheim, Dov S., 149