Watching Keith [Olbermann] just now, I heard him mention Antonin “Nino” Scalia’s dissenting opinion from today’s ruling in regards habeas corpus rights for detainees.

The lowlight of Justice Scalia’s opinion was the paragraph:

“The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.”

While others will surely spend countless hours and buckets of ink and pixels debating the merits or madness of the second sentence, I’ve a bone to pick with the first.

Scalia has, over the years, demonstrated a profound lack of understanding of the U.S. Constitution and the role of the Supreme Court. His devotion to the concept of “originalism” selectively ignores the Ninth and Tenth Amendments, key components of the document as “originally” ratified. The codicil to the majority opinion in Bush v. Gore, in which the nation’s ultimate appeals court, where all legal precedent is finally decided, declares that the judgment in that case is not, in fact, legal precedent.

I have come to expect little in the way of Constitutional wisdom from Justice Scalia.

But he is not alone in the delusion he propounds in the first sentence of today’s killer graf. Nearly every candidate, commentator and speechifier will, at convenient times, refer to the President of the United States as “the nation’s commander-in-chief” or “our commander-in-chief.”

Article II, Section 2 of the Constitution begins:

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

This is a very specific delineation. When broad powers are claimed for the President, many rightly so, in his role as “commander-in-chief,” these broad powers do not automatically apply to those persons not in the armed forces of the United States. Where they exist at all, they apply to the men and women of the uniformed services of the Army and Navy, the state Guards and other armed services.

The president not only is impotent to hold me without allowing me to demand the charges against me, he is impotent to search or seize my person, goods and papers without a warrant showing probable cause. He is enjoined from quartering his armed troops on my property.

In point of fact, the president of the United States cannot do a damned thing to me that the Constitution does not specifically allow him to do. And this limitation to his powers, embodied in the purposefully broad Tenth Amendment, holds because I am not a member of the armed forces.

In short, the president is not my commander-in-chief. Odds are, he is not yours, either. He is not Antonin Scalia’s commander in chief, not Hillary Clinton’s nor Chris Matthews’.

For us, the citizens of and visitors to the United States, he is the Chief Executive, pledged to take care that the laws of the United States are faithfully executed. He is not our commander. He is our servant.

I hope I’ve not made too much of a much here, but this anointing of the Chief Executive with unlimited powers over all citizens, like some ancient Imperator can’t be reversed solely by Court decisions. It must be dismantled in the minds of us, the citizens.

And refusing to accept the rule of a commander when you don’t wear the uniform is a reasonable place to start.

More memos recently have surfaced that were written early in the Bush administration by John C. Yoo from the Justice Department’s Office of Legal Counsel — the man who gave us the administration’s horrifyingly narrow definition of torture. As difficult as it is to believe, the recently released memos are even scarier than the original torture memo.

Yoo boldly asserts that the president’s power during wartime is nearly unlimited. For example, he argues that Congress has no right to pass laws governing the interrogations of enemy combatants and the commander-in-chief can ignore such laws if passed, and can, without constraint, seize oceangoing ships.

The memos also argue that military operations in the United States against terrorists are not subject to the Fourth Amendment requirement for search warrants or the Fifth Amendment requirement for due process.

This broad interpretation of executive power and the president’s commander-in-chief role would make the nation’s founders jump out of their graves. Purposefully, the Constitutional Convention enumerated the large number of Congress’s powers in Article I, and gave most powers related to defense and foreign affairs to the people’s branch.

In particular, the war power was given to Congress. The chief executive, whose powers were enumerated in the much more brief Article II, was given the commander-in-chief role, but this was intended narrowly, only as commander of U.S. troops on the battlefield.

Instead of declaring war, which has fallen out of fashion, the Congress, after 9/11, passed a resolution authorizing the president to go after al-Qaida overseas but deliberately omitted domestic activities from that authorization.

Democrats and Republicans alike declared that they were not endorsing a broad expansion of the president’s authority as commander-in-chief.

An important example from the nation’s infancy shows how narrowly the founders regarded the president’s role as commander-in-chief. During the Quasi-War with France in the last years of the 1700s, Congress authorized President John Adams to seize armed ships sailing to French ports. Adams exceeded the congressional authorization by ordering the seizure of vessels sailing to or from French ports. The Supreme Court, in the case Little v. Barreme, ruled that Adams had exceeded the authority Congress had delegated to him. So much for Bush’s supposed intrinsic authority to seize all oceangoing ships without congressional authorization.

In 1952, President Truman, the first imperial president, seized the steel mills under his alleged “inherent power” as commander in chief — supposedly to prevent paralysis of the national economy and using the rationale that soldiers in the Korean War needed weapons and ammunition.

By a wide margin, in the case Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court struck down Truman’s executive order to seize the mills because it had no statutory or constitutional basis. Essentially, the court ruled that the president may be commander-in-chief of the armed forces but not the country.

Yoo’s assertion that Congress has no right to pass laws that impinge on the president’s claim to a broad interpretation of his role as commander-in-chief violates the core of the constitutional system of checks and balances, and for which the United States regularly criticizes despots in foreign countries.

Finally, the Fourth Amendment (requiring warrants for any search) and the Fifth Amendment (the right to due legal process) contain no exceptions for wartime. In fact, in a republic — where the rule of law should be king — crises and wartime are exactly when people’s rights are most likely to be endangered and when safeguards are especially needed.

Even more tragic and dangerous than the quagmires of Iraq and Afghanistan have been President Bush’s usurping of power from the other two branches of government and the creation of the “hyperimperial” presidency.

Ivan Eland is Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books, The Empire Has No Clothes: U.S. Foreign Policy Exposed, and Putting “Defense” Back into U.S. Defense Policy.

© 2008 – Ivan Eland – All Rights Reserved