The Ides of December: Smoke, Mirrors and War Powers

by Jeff Huber
18 December 2005

Future generations may look back on December 2005 as a watershed period in the evolution of the United States of America. The actions taken and decisions made during and subsequent to that month may determine the nature of the separation of powers among the legislative, executive and judicial branches of our federal government for decades and centuries to come.

On December 15th The New York Times revealed that President Bush had, in support of the Global War on Terror, secretly authorized the National Security Agency to spy without prior judicial approval on Americans inside the United States. The next day, many members of Congress expressed outrage at the revelation, and 47 members of the Senate staged a filibuster to block passage of a new Patriot Act.

On Saturday, the 17th, Mr. Bush made a live televised speech in which he admitted to having ordered the National Security Agency to conduct domestic surveillance. In justifying his actions, he cited the “…constitutional authority vested in me as commander-in-chief” and powers granted him by Congress in the Patriot Act and in the Authority for Use of Military Force (AUMF) enacted on September 18, 2001.

In light of these events, the body politic must seek the answers to three vital questions:

Hail to the Chief

Since September 11, 2001, President Bush has exercised extraordinary — some would say unprecedented — executive authority. The Bush administration has consistently justified its actions by playing on a widely held misconception that, when it comes to defending America, the executive branch is granted a broad set of formally defined war powers. But a study of the U.S. Constitution and laws derived from it shows that the notion of sweeping presidential authority in time of war is almost entirely illusory.

Under Bush, the executive branch has claimed the authority to hold individuals indefinitely without trial by labeling them as “enemy combatants.” This suspends the right to due process and puts accused individuals beyond the protection of the courts. The administration has also declared that its war-fighting efforts will not be bound by international treaties and conventions. In January 2002, then-White House Counsel (and current Attorney General) Alberto Gonzales advised Mr. Bush that portions of the Geneva Convention were “quaint” and “obsolete.”

Gonzales isn’t the only member of the Bush administration to argue that the executive branch is entitled to step outside the rule of law in times of war. Former Justice Department attorney John Yoo wrote or coauthored the key memoranda that encouraged the Pentagon and the White House to deny traditional protections to prisoners of war and detainees and was a principle author (along with current Secretary of Homeland Security Michael Chertoff and others) of the USA PATRIOT Act. Two weeks after 9/11, Yoo wrote a memo stating, “In the exercise of his plenary power to use military force, the president’s decisions are for him alone and are unreviewable.”

A study of the U.S. Constitution and laws derived from it shows that the notion of sweeping presidential authority in time of war is almost entirely illusory.

Mr. Bush himself has said that when it comes to countering terrorism, “Anything we do to that effort, to that end, in this effort, any activity we conduct, is within the law.”

But assertions that Mr. Bush or any American president has “plenary power” (meaning absolute and unqualified power) to make his own law or suspend civil liberties in time of war — declared or otherwise — are fuzzy constitutionality at best.

From the Top of the Deck

Article II of the United States Constitution defines the authority of the executive branch of the federal government. Here’s what it says about the president’s war powers:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States … and shall commission all the officers of the United States.

That’s it. The Constitution mentions nothing about granting the president authority to assume any other powers or suspend laws in times of war.

Article I of the Constitution, which addresses the federal legislature, deals most of the cards in the war-powers deck to Congress, which it authorizes:

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress[.]

The Constitution does not allow a president to assume congressional powers in time of war in his capacity as commander in chief of the military, nor does it give Congress the option of delegating its war powers to the president.

Habeas Corpus

Article I also contains the single clause in the Constitution that provides for the suspension of a civil right in times of war: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

A habeas corpus writ orders that prisoners be brought to court to determine whether they are being detained legally. In declaring individuals to be enemy combatants, Mr. Bush has suspended their privilege of the writ; but since the authority to suspend the writ “in cases of rebellion or invasion” is mentioned in Article I (which discusses the legislature exclusively), a serious question exists as to whether the executive branch may exercise this power.

This very issue arose during the American Civil War. In 1861 President Abraham Lincoln gave orders suspending habeas corpus that resulted in the arrest of John Merryman and others opposed to the war. Merryman sought protection in the Maryland Federal Circuit Court, filing a petition for release from arbitrary imprisonment. Then Chief Justice of the Supreme Court, Roger Taney, was sitting on the Maryland Circuit at the time (until 1869 Supreme Court justices typically sat as circuit judges when the Supreme Court was not in session) and ruled in favor of Merryman. provides a concise synopsis of Taney’s arguments :

In his Ex parte Merryman opinion, Chief Justice Taney … says the framers never intended for the executive to suspend habeas corpus.

Taney argues that it defies common sense to believe the framers would have trusted the executive with the right to suspend habeas corpus. They had just broken away from a powerful, despotic English monarch. Therefore, they distrusted a powerful executive, especially one who could arrest citizens and hold them indefinitely without trial.

Taney persuasively argues that the Constitution expressly denies the executive the right to suspend habeas corpus, even going so far as to say “I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of Congress.” To support this contention, Taney cites Article I, Section 9 of the Constitution, which gives Congress alone the power to suspend habeas corpus. He also cites the fact that Article I “is devoted to the legislative department of the United States, and has not the slightest reference to the executive department.” To further support his case, Taney discusses Article II of the Constitution, which deals with the executive branch. Taney writes that “if the high power over the liberty of the citizen now claimed, was intended to be conferred on the President, it would undoubtedly be found in plain words in this article.” However, Article II never gives the President this power.

This judicial precedent is significant in light of legislation Congress passed in intervening years.

The War Powers Act of 1973

In the aftermaths of the Korean and Vietnam conflicts, Congress passed the War Powers Act of 1973 in an attempt to limit a president’s ability to initiate and sustain “undeclared” wars. The ’73 War Powers Act prohibits a president from committing troops to combat for more than 60 days without a formal declaration of war or “specific statutory authorization” from Congress. (It grants a thirty-day extension under specific conditions to allow for the safe extraction of troops from a war zone.)

Section 8 (d) of the ’73 act specifically states that the legislation itself does not alter the constitutional division of war powers between the executive and legislative branches: “Nothing in this joint resolution … is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties.”

In other words, the ’73 War Powers Act contains no provision for a president to suspend any part of what Article IV of the Constitution mandates:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land. [Emphasis added.]

The ’73 War Powers Act was reasonably effective at placing war powers back in the legislature where the Constitution intended them to be. But in the weeks and months after 9/11, Congress hastily passed legislation that many argue gave Mr. Bush unconstitutional dictatorial privileges.

Where the Wheels Came Off

The attention of civil-liberties groups to post-9/11 legislation has focused on the USA Patriot Act and its violation of key aspects of the first, fourth, fifth, sixth and eighth amendments in the Constitution’s Bill of Rights. Some legal challenges to certain sections of the act have been successful. Most notably, Section 505 of the act, the provision allowing the government to issue “national security letters” for access to customer records from internet service providers and other businesses without permission of the courts, was ruled unconstitutional by a U.S. District Court in September 2004.

But a more significant piece of legislation has largely remained under the radar. Seven days after the 9/11 attacks, Congress passed Public Law 107-40. This joint resolution, commonly referred to as the “Authorization for Use of Military Force” (AUMF), gave Mr. Bush “specific statutory authorization” to:

… [U]se 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 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

This was the infamous “blank check” that Congress wrote to the executive branch, giving Mr. Bush virtually unreviewable, dictatorial powers to carry out his war on terrorism.

To date, the most visible judicial challenges of the constitutionality of the AUMF have been the convoluted cases of Hamdan v. Rumsfeld, Hamdi v. Rumsfeld and Padilla v. Bush. The decisions of the federal judicial branch in these cases have been mixed.

America’s Dog Days in Court

In all three cases, the defendants were held under military jurisdiction, and U.S. District Courts found for the defendants’ rights to argue their cases in civilian courts under the habeas corpus provision of the Constitution and/or the Geneva Convention relative to the treatment of prisoners of war. But all three district court decisions were reversed by U.S. Courts of Appeals. The Supreme Court agreed to hear further appeals in all three cases.

The Hamdan and Padilla Supreme Court cases are still pending. Questions exist as to whether the Padilla case will be heard at the high-court level, now that Attorney General Alberto Gonzales has agreed to allow Padilla’s case to be heard in a lower civilian court. Some observers contend that Gonzales remanded Padilla to civil justice for the specific purpose of avoiding a Constitutional challenge of the AUMF and the Patriot Act in the Supreme Court.

The case of Hamdi (a U.S. citizen, as is Padilla) went to the Supreme Court, which reversed the 4th U.S. Circuit Court of Appeals verdict. Sort of. By an 8-1 decision, the Supreme Court ruled that Hamdi, as an American citizen, had the right to have his case heard in a U.S. civilian court. Writing for the majority, Justice Sandra Day O’Connor said, “A state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

Steven Shapiro of the American Civil Liberties Union declared the Hamdi decision to be “a strong repudiation of the administration’s argument that its actions in the war on terrorism are beyond the rule of law and unreviewable by American courts.”

But not everyone was as enthusiastic about the Hamdi decision as Shapiro was. Attorney Elaine Cassel of Civil Liberties Watch thinks that Mr. Bush “won far more than he lost” in the Hamdi case:

The majority opinion was written by Justice O’Connor, and we all know what that means — a tortured crafting of facts cobbled to law that tries to give everybody something.

In fact, O’Connor’s majority opinion agreed that Congress had authorized Mr. Bush to hold suspected terrorists in indefinite detention when it passed the AUMF:

The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF.

There is no bar to this Nation’s holding one of its own citizens as an enemy combatant.

O’Connor’s something-for-everyone opinion gave civil libertarians a modicum of victory, but it left open a Constitutional loophole that may affect American justice and the rights of U.S. citizens for years to come.

With the AUMF, the legislative branch transferred one of its constitutional powers — the suspension of habeas corpus — to the executive branch. In doing so, some legal minds say that it signed off on a blanket bill of attainder, a legislative act that singles out an individual or group for punishment without trial.

Article I of the Constitution plainly states, “No bill of attainder … shall be passed.” As in ever — peacetime, wartime, any time.

Therein lies the hidden danger of the Supreme Court’s Hamdi v. Rumsfeld decision. Congress exercised a power — the bill of attainder — denied to it by the Constitution to give the president a power — wartime suspension of habeas corpus — specifically allocated to Congress by the Constitution. And the Supreme Court, theoretically created to keep the legislative and executive branches within the bounds of their constitutional powers, let them get away with it.

Dog Days Ahead?

In the weeks and months to come, Americans will doubtless hear no end of debate over war powers, constitutionality, executive privilege, congressional oversight and judicial responsibility. Too much of it will be Rovewellian propaganda that appeals to emotions at the expense of logic, reason and common sense. And entirely too many Americans will accept what partisan pundits tell them about constitutional authority without Googling “Constitution of the United States” and reading the document for themselves.

If the Senate filibuster on the Patriot Act holds, the 16 “sunset” provisions of the law will expire on December 31, 2005. Even so, the administration will still have the blank-check AUMF to use as its justification for Mr. Bush to exercise “plenary powers.”

In the worst-case scenario, Bush will emerge as an absolute ruler who can do whatever he wants in his execution of the Global War on Terror, with no checks, balances or oversight from any other branch or agency of government.

In that eventuality, the likes of Osama bin Laden will have achieved complete victory in the Global War on Terrorism. They will have destroyed our cherished federal republic.

Or rather, we will have allowed the Bush administration to destroy it for them.

Contributors to this article: KagroX, Cache, Cho, DEFuning, Sue in KY, Standingup, JeninRI.

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