The United States Constitution, as the Obama Regime pretends to understand it, is a most peculiar document, one that is actually enhanced by the criminal actions of public officials who brazenly violate its most explicit provisions. Most people would assume that such actions would tarnish the Constitution. As the administration tells it, however, decades of persistent presidential contempt for the Constitution have conferred an “historical gloss” on the document, just as decades of determined obfuscation of its unambiguous and easily understood war powers provisions have “clarified” their meaning.

Caroline D. Krass, a minor functionary in the Justice Department’s Office of Legal Counsel, was assigned to play the role of the Obama administration’s John Yoo — that is, the sophist responsible for composing a spurious but serviceable legal rationale for the exercise of dictatorial powers by the president. The resulting memo — dated, appropriately, April 1 — claims that Obama needed no congressional authorization of any kind to commit aggressive war against Libya, since in his holy and indisputable judgment the possibility of “regional instability” and injury to the “credibility and effectiveness of the United Nations Security Council” posed threats to our national security that demanded a military response. Accordingly, Krass concluded, Obama could initiate war with Libya “as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers … even without prior specific congressional approval.’

The actual text of the Constitution, and the well-articulated intent of the Framers to deny the president unilateral powers of this kind, are inconsequential, according to Krass, who cites an earlier OLC opinion claiming that a “pattern of executive conduct, made under claim of right, extended over many decades and engaged in by Presidents of both parties, evidences the existence of broad constitutional power.” It does no such thing, of course, any more than the persistence of armed robbery in defiance of laws against theft “evidences the existence of a broad right to steal property at gunpoint” (which is, of course, the defining activity of the institutionalized affliction called “government”).

Krass’s memo does offer a pretty detailed description of the devious dialectic in which presidents have usurped war powers, and congress has abdicated its authority, yielding the present post-constitutional synthesis in which any elected dictator can wage war anywhere for as long as he or she pleases. The only “possible constitutionally-based limit” on the president’s supposed authority to wage war, she insists, would involve “a planned military engagement that constitutes a `war’ within the meaning of the Declaration of War Clause….” This is to say that from the Regime’s perspective, there is a vague, and not terribly important, possibility that the Declaration of War Clause might actually impose a hypothetical limit on presidential war powers. However, the memo goes on to assert that “the historical practice of even intensive military action [such as] … some two months of bombing in Yugoslavia in 1999 — without specific prior congressional approval” effectively nullifies that constitutional limitation.

The compelling “national interest” claimed in the OLC memo is two-fold: First, preventing a “humanitarian catastrophe” that “could” have ensued in Benghazi (a claim that was as much a cynical fiction as Bill Clinton’s lie that hundreds of thousands of Kosovo Albanians were facing annihilation, or the Bush administration’s fabrications about Saddam’s WMD); and second, “maintaining the credibility of the United Nations Security Council and the effectiveness of its actions to promote international peace and security.” Both of those objectives are best served, we are supposed to believe, by flinging Tomahawk cruise missiles at population centers in  a country that posed no threat to us.

Of particular interest in this connection is Krass’s statement that “the United States government has recognized that `[t]he continued existence of the United Nations as an effective international organization is a paramount United States interest.’” That phrase, which was cited by the first Bush administration to justify the UN-”authorized” December 1992 invasion of Somalia, originated in a 1950 State Department Bulletin entitled Authority of the President to Repel the Attack in Korea. The term “paramount,” of course, is a synonym for “supreme”; this means that Krass and her predecessors defined preservation of the UN as the supreme foreign policy interest of the United States government.

As was recently pointed out in LRC,  the United Nations was never intended to be a peace organization. From the beginning, as Simon Tisdall of theGuardian of London observes, the UN’s “primary purpose was as a war-fighting machine.” When Congress enacted the United Nations Participation Act in December 1945, it effectively repudiated its constitutional role in declaring war, deferring instead to a new arrangement in which the president can deploy troops anywhere in the world in compliance with our supposed “obligations” to the UN and the international system it administers.

Granted, the UN war-making  system hasn’t operated in strict accordance with its charter — but this is just another case in which the text of a supposedly binding document has been transcended by the “historical gloss” placed on it by policymakers who recognize no limits on the powers they exercise. Whenever such people find their ambitions constricted by the terms of a constitution or charter, they will simply write themselves an elaborate permission slip — festooned with specious citations — authorizing them to do whatever they damn well please.

William Norman Grigg [send him mail] publishes the Pro Libertate blog and hosts the Pro Libertate radio program.

Copyright © 2011 William Norman Grigg

Yesterday, The Wall Street Journal carried a story entitled “Obama Steps Up Confrontation.” It said in part, “On Thursday, the president challenged Republicans who planned to campaign on repealing his health-care bill with, ‘Go for it.’ Two days later, he made 15 senior appointments without Senate consent, including a union lawyer whose nomination had been blocked by a filibuster.

“At a bill-signing event Tuesday, he is set to laud passage of higher-education legislation that was approved despite Republican objections through a parliamentary maneuver that neutralized the party’s filibuster threat.”

Senator Lamar Alexander (R-TN) called Obama’s decision to federalize most student loans “really brazen” and “the most underreported, biggest Washington takeover in history.”

See the WSJ report at:

http://tinyurl.com/wsj-obama-confronts

If history teaches us anything, it teaches us that power always craves more power. And there are only 2 ways to check power: internally, through self-discipline and humility; or externally, through equally determined and equipped counterforces.

Americans should thank God that George Washington was our first President, because no one exemplified self-discipline and humility more than he did. After having led the colonies to perhaps the most miraculous revolution in world history, Washington was universally adored and even idolized. There were many that even attempted to make Washington America’s king. He flatly refused this proposal, of course. (Compare Washington’s character and humility to former President G.W. Bush, who, on this subject, said, “If this were a dictatorship, it would be a heck of a lot easier, just so long as I’m the dictator.”)

The concept of an American monarch may seem foreign to us today, but remember that a monarchy was the only form of government the colonists had ever known. And there can be no doubt that a monarchy (or some form of it) has been the single most popular form of central government that the nations of the world have utilized. But remember, too, the theme of America’s War for Independence was “No King But Jesus.” And no one believed that more than General George Washington did.

Like most of America’s founders, Washington distrusted government in general and despised big government in particular–even though people were willing to make him government’s imperial ruler. Listen to the Father of our Country:

“Government is not reason; it is not eloquence; it is force! Like fire, it is a dangerous servant and a fearful master.”

Unfortunately, there hasn’t been a man of George Washington’s caliber in the White House for many a moon. Instead of distrusting and limiting the central government, the vast majority of modern Presidents have completely ignored the constitutional role of the Presidency, and have sought to expand the authority of the executive branch of the federal government to proportions never allowed in the Constitution or envisioned by its creators. And Barack Obama is following the example of his predecessors by continuing this malevolent model (with increased rapidity, I might add). The above-mentioned stories are just the latest examples of what is fast becoming an imperial Presidency. It seems that every day another example of executive arrogance and usurpation of power takes place.

Given the lack of genuine humility and character of America’s President–and the unwillingness of Congress and the Supreme Court to restrain his unconstitutional propensities–it is left to the states and the People to hold this would-be king in check.

And here is another reason to be thankful for America’s founders: they recognized the ultimate role of the states in safeguarding and protecting liberty. As James Madison said in Federalist 45, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

In Federalist 39 Madison said, “Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution.” (Emphasis in the original.)

If America’s founders desired that a national–or monarchal–government be established in the United States, what was the purpose of the original 13 colonies retaining individual statehood? Why would each State retain its authority as “a sovereign body,” if not to serve as a vanguard against the encroachment upon liberty by the central government?

And never has liberty been more vulnerable to oppression and tyranny than right now! Why? Because ever since 9/11, both political parties in Washington, D.C., have placed America in a state of perpetual war. This fact alone puts the federal government in a position to become America’s oppressor.

In the first place, the Congress of the United States (then controlled by Republicans) abdicated its constitutional obligation to be the sole determiner regarding America’s entrance into war by providing then-President Bush with virtually unlimited and unchecked ability to determine and wage war clearly outside the perimeter of constitutional authority. And since taking over the federal government last year, Democrats in Washington, D.C., have followed suit.

But listen to Madison: “The executive [President] has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”

Furthermore, the condition of unending, perpetual war only serves the purpose of lessening liberty. To quote Madison again: “No nation could preserve its freedom in the midst of continual warfare.” Madison also declared, “If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.” And one more from Madison: “The means of defense against foreign danger, have been always the instruments of tyranny at home.”

One needs to only look around to observe that Madison’s warnings are quickly becoming a reality in these United States.

What all this means is that the American people cannot rely on Washington, D.C., to control itself. We cannot trust Washington politicians and bureaucrats to have the character and self-discipline to honor the Constitution and defend our liberties. If we are to preserve our freedom in this country, it will be up to the body politic in each State to do it. If the Congress and Court in Washington, D.C., will not rein in this burgeoning monarchy at 1600 Pennsylvania Avenue, then the states and People must.

At this point, I do not believe there is any way to avoid it: a showdown between freedom-loving states and the federal government is inevitable. But not only is it inevitable, it is absolutely necessary! The central government in Washington, D.C., is quickly morphing into a monarchy–or at the very least an oligarchy. And neither the Donkeys nor the Elephants inside the Beltway are willing to do anything to stop it. Either the states determine to defend the rights and liberties of the American people now, or we are destined to be governed by DC’s despots. Furthermore, we cannot cede to the US Supreme Court–or to any other federal authority–our independence, and most certainly, those fundamental elements necessary to our very survival. Only the states and the People, respectively, can maintain these bulwarks.

The question is, Will my State raise the “Don’t Tread On Me” flag and sincerely defend my liberties? And the follow-up question is, If my State will not do it, which states will, and what will I do? We have little choice. Either we join with a State that will fight for our liberties and help procure freedom for our posterity, or we follow radical unionists (and globalists) into a modern-day monarchy that is marching America toward oppression and servitude.

*If you appreciate this column and want to help me distribute these editorial opinions to an ever-growing audience, donations may now be made by credit card, check, or Money Order. Use this link

(c) Chuck Baldwin

NOTE TO THE READER:

Chuck Baldwin is a syndicated columnist, radio broadcaster, author, and pastor dedicated to preserving the historic principles upon which America was founded. He was the 2008 Presidential candidate for the Constitution Party. He and his wife, Connie, have been married for 37 years and have 3 children and 7 grandchildren. See Chuck’s complete bio at:
http://chuckbaldwinlive.com/home/?page_id=6

Please visit Chuck’s web site at http://chuckbaldwinlive.com

by Thomas E. Woods, LewRockwell.com

We are long past the point at which constitutional arguments have much hope of restraining the American political class, either at home or abroad. They are still worth making, though, since they serve to show the two major parties’ contempt for American law and tradition.

Ever since the Korean War, Article II, Section 2 of the Constitution – which refers to the president as the “Commander in Chief of the Army and Navy of the United States” – has been interpreted to mean that the president may act with an essentially free hand in foreign affairs, or at the very least that he may send men into battle without consulting Congress. But what the framers meant by that clause was that once war has been declared, it was the President’s responsibility as commander-in-chief to direct the war. Alexander Hamilton spoke in such terms when he said that the president, although lacking the power to declare war, would have “the direction of war when authorized or begun.” The president acting alone was authorized only to repel sudden attacks (hence the decision to withhold from him only the power to “declare” war, not to “make” war, which was thought to be a necessary emergency power in case of foreign attack).

The Framers of the Constitution were abundantly clear in assigning to Congress what David Gray Adler has called “senior status in a partnership with the president for the purpose of conducting foreign policy.” Consider what the Constitution has to say about foreign affairs. Congress possesses the power “to regulate Commerce with foreign Nations,” “to raise and support Armies,” to “grant Letters of Marque and Reprisal,” to “provide for the common Defense,” and even “to declare War.” Congress shares with the president the power to make treaties and to appoint ambassadors. As for the president himself, he is assigned only two powers relating to foreign affairs: he is commander-in-chief of the armed forces, and he has the power to receive ambassadors.

At the Constitutional Convention, the delegates expressly disclaimed any intention to model the American executive exactly after the British monarchy. James Wilson, for example, remarked that the powers of the British king did not constitute “a proper guide in defining the executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace.” Edmund Randolph likewise contended that the delegates had “no motive to be governed by the British Government as our prototype.”

To repose such foreign-policy authority in the legislative rather than the executive branch of government was a deliberate and dramatic break with the British model of government with which they were most familiar, as well as with that of other nations, where the executive branch (in effect, the monarch) possessed all such rights, including the exclusive right to declare war. The Framers of the Constitution believed that history amply testified to the executive’s penchant for war. As James Madison wrote to Thomas Jefferson, “The constitution supposes, what the History of all Governments demonstrates, that the Executive 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 Legislature.”

At the Constitutional Convention, 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 nation will support it.” Butler’s motion did not receive so much as a second.

James Wilson assured 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 war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war.”

In Federalist #69, Alexander Hamilton explained that the president’s 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 regulating of fleets and armies; all which by the constitution under consideration would appertain to the Legislature.”

Abraham Lincoln famously explained the principle this way:

Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose – and you allow him to make war at pleasure…. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, to-day, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, “I see no probability of the British invading us” but he will say to you “be silent; I see it, if you don’t.”

The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.

According to John Bassett Moore, the great authority on international law who (among other credentials) occupied the first professorship of international law at Columbia University, “There can hardly be room for doubt that the framers of the constitution, when they vested in Congress the power to declare war, never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory, and killing their soldiers and citizens, all according to his own notions of the fitness of things, as long as he refrained from calling his action war or persisted in calling it peace.”

In conformity with this understanding, George Washington’s operations on his own authority against the Indians were confined to defensive measures, conscious as he was that the approval of Congress would be necessary for anything further. “The Constitution vests the power of declaring war with Congress,” he said, “therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.”

The typical neoconservative response to this argument is to claim that the president has sent troops into battle hundreds of times without congressional authorization. A well-known neoconservative whose name I shall mercifully keep to myself made just this argument in his review of my Politically Incorrect Guide to American History.

Let’s see how well the claim stands up.

Supporters of a broad executive war power have sometimes appealed to the Quasi War with France, in the closing years of the eighteenth century, as an example of unilateral warmaking on the part of the president. Francis Wormuth, an authority on war powers and the Constitution, describes that contention as “altogether false.” John Adams “took absolutely no independent action. Congress passed a series of acts that amounted, so the Supreme Court said, to a declaration of imperfect war; and Adams complied with these statutes.” (Wormuth’s reference to the Supreme Court recalls a decision rendered in the wake of the Quasi War, in which the Court ruled that Congress could either declare war or approve hostilities by means of statutes that authorized an undeclared war. The Quasi War was an example of the latter case.)

Consider an interesting and revealing incident that occurred during the Quasi War. Congress authorized the president to seize vessels sailing to French ports. But President Adams, acting on his own authority and without the sanction of Congress, instructed American ships to capture vessels sailing either to or from French ports. Captain George Little, acting under the authority of Adams’ order, seized a Danish ship sailing from a French port. When Little was sued for damages, the case made its way to the Supreme Court. Chief Justice John Marshall ruled that Captain Little could indeed be sued for damages in the case. “In short,” writes Louis Fisher in summary, “congressional policy announced in a statute necessarily prevails over inconsistent presidential orders and military actions. Presidential orders, even those issued as Commander in Chief, are subject to restrictions imposed by Congress.”

Another incident frequently cited on behalf of a general presidential power to deploy American forces and commence hostilities involves Jefferson’s policy toward the Barbary states, which demanded protection money from governments whose ships sailed the Mediterranean. Immediately prior to Jefferson’s inauguration in 1801, Congress passed naval legislation that, among other things, provided for six frigates that “shall be officered and manned as the President of the United States may direct.” It was to this instruction and authority that Jefferson appealed when he ordered American ships to the Mediterranean. In the event of a declaration of war on the United States by the Barbary powers, these ships were to “protect our commerce & chastise their insolence – by sinking, burning or destroying their ships & Vessels wherever you shall find them.”

In late 1801, the pasha of Tripoli did declare war on the U.S. Jefferson sent a small force to the area to protect American ships and citizens against potential aggression, but insisted that he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense”; Congress alone could authorize “measures of offense also.” Thus Jefferson told Congress: “I communicate [to you] all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight.”

Jefferson consistently deferred to Congress in his dealings with the Barbary pirates. “Recent studies by the Justice Department and statements made during congressional debate,” Fisher writes, “imply that Jefferson took military measures against the Barbary powers without seeking the approval or authority of Congress. In fact, in at least ten statutes, Congress explicitly authorized military action by Presidents Jefferson and Madison. Congress passed legislation in 1802 to authorize the President to equip armed vessels to protect commerce and seamen in the Atlantic, the Mediterranean, and adjoining seas. The statute authorized American ships to seize vessels belonging to the Bey of Tripoli, with the captured property distributed to those who brought the vessels into port. Additional legislation in 1804 gave explicit support for ‘warlike operations against the regency of Tripoli, or any other of the Barbary powers.’”

Consider also Jefferson’s statement to Congress in late 1805 regarding a boundary dispute with Spain over Louisiana and Florida. According to Jefferson, Spain appeared to have an “intention to advance on our possessions until they shall be repressed by an opposing force. Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force…. But the course to be pursued will require the command of means which it belongs to Congress exclusively to yield or to deny. To them I communicate every fact material for their information and the documents necessary to enable them to judge for themselves. To their wisdom, then, I look for the course I am to pursue, and will pursue with sincere zeal that which they shall approve.”

The nineteenth century, on closer inspection, turns out not to provide the precedents for presidential warmaking that its proponents would prefer to see. We don’t see anything approaching the open-ended and truly staggering authority that neoconservatives would grant the president until the closing years of that century, and even then only in miniature.

Cornell University’s Walter LaFeber pinpoints the origins of modern presidential war powers in an obscure incident from 1900. In 1898 a group of anti-foreign Chinese fighters known to the West as the Boxers rose up in protest against foreign exploitation and extraterritorial privileges in their country. They targeted Christian missionaries and Chinese converts, as well as French and Belgian engineers. After the German minister was killed in 1900, several nations sent troops to restore order amid the growing terror. McKinley contributed 5,000 American troops. This apparently minor action, however, was pregnant with consequences, as LaFeber observes:

McKinley took a historic step in creating a new, twentieth-century presidential power. He dispatched the five thousand troops without consulting Congress, let alone obtaining a declaration of war, to fight the Boxers who were supported by the Chinese government…. Presidents had previously used such force against non-governmental groups that threatened U.S. interests and citizens. It was now used, however, against recognized governments, and without obeying the Constitution’s provisions about who was to declare war.

Now what of those “hundreds” of cases of presidential warmaking? This argument – surprise – originated with the U.S. government itself. At the time of the Korean War, a number of congressmen contended that “history will show that on more than 100 occasions in the life of this Republic the President as Commander in Chief has ordered the fleet or the troops to do certain things which involved the risk of war” without the consent of Congress. In 1966, in defense of the Vietnam War, the State Department adopted a similar line: “Since the Constitution was adopted there have been at least 125 instances in which the President has ordered the armed forces to take action or maintain positions abroad without obtaining prior congressional authorization, starting with the ‘undeclared war’ with France (1798–1800).”

We have already seen that the war with France in no way lends support to those who favor broad presidential war powers. As for the rest, the great presidential scholar Edward S. Corwin pointed out that this lengthy list of alleged precedents consisted mainly 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.”

The neoconservative argument, therefore, is based on ignorance or dishonesty. There is no third possibility. To support their position – although for obvious reasons they don’t put it quite this way – they are counting chases of cattle rustlers as examples of presidential warmaking, and as precedents for sending millions of Americans into war with foreign governments on the other side of the globe. No comment really seems necessary.

Consider, on the other hand, the words of Senator Robert A. Taft in 1951: “My conclusion, therefore, is that in the case of Korea, where a war was already under way, we had no right to send troops to a nation, with whom we had no treaty, to defend it against attack by another nation, no matter how unprincipled that aggression might be, unless the whole matter was submitted to Congress and a declaration of war or some other direct authority obtained.”

Taft, some readers will recall, was known in his day as “Mr. Republican.” There’s yet another way in which the world has been turned upside down.

Editor’s Note: This article was originally published on July 7, 2005 at LewRockwell.com

Thomas E. Woods is the New York Times bestselling author of nine books, including Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse. A senior fellow at the Ludwig von Mises Institute, Woods holds a bachelor’s degree in history from Harvard and his master’s, M.Phil., and Ph.D. from Columbia University.

Copyright © 2005 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given

Testimony before the House Judiciary Committee, July 25, 2008

Mr. Chairman and distinguished Members of this Committee, on which I was privileged to serve throughout my eight years as a Member of the House of Representatives, it is an honor to appear today to speak on the importance of the separation of powers in the federal government as a tool for protecting the people’s liberties. Many vital issues confront our nation, but few are more important than repairing and maintaining the constitutional bulwarks that guarantee individual liberty and limit government power.

Mr. Chairman, today I appear as a private citizen, and also as a former Member of this Committee and as a once-again practicing attorney. I am also honored to be serving as the presidential nominee of the Libertarian Party.

It is axiomatic that no matter how much power government has, it always wants more. While the executive branch under George W. Bush has taken this truism to new heights, it is not unique in its quest for power. Unfortunately, the other branches of government have failed to do enough to maintain the constitutional balance. Particularly disturbing has been Congress’ recent reluctance, in the face of aggressive executive branch claims, to make the laws and ensure that the laws are properly applied. This failure has inhibited the operation of the separation of powers, necessary to provide the checks and balances which undergird our system of constitutional liberty.

CHECKS AND BALANCES

The Constitution employs several techniques to preserve our liberties and privacy. One is to limit federal authority to enumerated powers. Another is to explicitly restrict government power, most notably through the Bill of Rights. The Founders also used the basic structure of government to protect the people from abuse, relying upon federalism, dividing power between state and national governments, as well as the separation of powers within the federal government itself.

The latter concept goes back to ancient Greece and was explicated by such political philosophers as John Locke and most famously by Baron de Montesquieu, who was much studied by America’s Founders. Many countries have implemented the same principle, though with different government structures, ranging up to six branches in Germany. In the U.S. the Founders established the executive, legislative, and judicial branches. The result is intentional inefficiency: the three branches are expected to constantly check and balance each other.

For instance, James Madison declared in Federalist No. 51: “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” He went on to explain that, “[i]n 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.” This means “the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other.”

Despite the inevitable problems which will afflict any political system, the original constitutional scheme has worked extremely well. Although the relative power of the different branches has varied over time, checks and balances have always operated.

More than two centuries have passed, and the constitutional limits on both the legislative and judicial branches remain robust – at least in theory. The president appoints and the Senate confirms judges, for instance. Presidents veto legislation and administer the laws, while the judiciary assesses the constitutionality of and interprets statutes.

In contrast, however, the constitutional constraints on the executive branch have eroded, with some breaking down substantially or entirely. The process has been underway for many years, but has greatly accelerated since 2001. In particular, President Bush and his appointees have used his power as commander in chief—of the military, not American society, it should be noted—to disregard congressional authority and override explicit constitutional provisions. Indeed, since 9/11, the president has let few opportunities slip by without reminding us that he is not only commander in chief but also a “wartime president,” and to argue that this status justifies whatever new power he claims to possess and wishes to utilize.

The president’s authority is substantial, but limited by law. The Constitution directs him or her to “take care that the laws be faithfully executed.” However, Congress is vested with the sole power to legislate, thereby determining the laws to be executed. Moreover, the president’s administration of the law is constrained by the Bill of Rights, including the Fourth Amendment, which bars searches and seizures absent a warrant based on probable cause. Further, though the president by the nature of his office has a lead role in shaping foreign and military policy, the Constitution shares powers in these areas between the legislative and executive branches.

Since the nation’s founding, Congress and the executive have struggled for supremacy. The 20th Century witnessed a steady if irregular expansion of presidential authority, which has carried over into this first decade of the 21st Century. The role of the president as the military’s commander in chief has taken on increasing importance as it has been used to justify the aggrandizement of the executive’s authority at the expense of that of both Congress and the judiciary. The issue is not just an abstract struggle between different government officials. Rather, this expansion of presidential power has increasingly put the people’s liberties and privacy at risk.

WAR-MAKING POWERS
One of the most important expansions of executive authority has been transforming the president’s power to conduct a war into that of starting a war. Congress is vested with the sole power to declare, meaning to start, war; the Constitution’s framers explicitly intended to diverge from the British system and vest the authority to initiate war with the many in the legislature rather than the one in the executive. The Constitution also empowers Congress to create the military and enact rules governing both the military and the conduct of war. Although the constitutional convention changed the term from “make” to “declare” to allow the president to respond to a surprise attack, and the president’s authority to conduct war as commander in chief suggests that Congress cannot second guess his tactical judgments, he is to exercise all his powers within the larger framework created by the legislative branch.

Yet modern presidents increasingly assert their unilateral authority to bomb and invade other nations, without legislative approval, and to conduct military operations for years even after the original circumstances giving rise to a congressional authorization to use force have changed. This trend did not originate with the Bush administration, but has continued and grown under it. For instance, in 2002 President George W. Bush insisted that Congress not tie his hands, and refused to acknowledge the constitutional necessity of winning legislative approval to invade Iraq. Rather than make the decision for or against war, Congress transferred discretion to initiate war against Iraq to the president.

After launching the Iraq invasion in 2003 based on a 2002 congressionally-passed resolution to do so, the current administration has rejected the argument that a multi-year occupation violates Congress’ authorization of force, which legally controls the executive’s war objectives. The president also has resisted congressional oversight of its objectives and policies, which is an essential aspect of Congress’ authority. Although acknowledging that Congress controls the budgetary purse strings, the president and his aides have fought any attempt to condition appropriations—conveniently bundled in “emergency” supplementals in order to reduce the opportunity for legislative review.

EROSION OF LIBERTY

The administration has attempted to use the same commander in chief power, as well as Congress’ Authorization for Use of Military Force (AUMF), approved after 9/11, to trump constitutional protections for civil liberties and privacy. Yet the Constitution does not create a national security exception to the Bill of Rights or separation of powers, and no member of Congress imagined that voting to authorize the use of force abroad simultaneously authorized the president to engage in unspecified and otherwise unconstitutional conduct at home. There is no basis for the argument the president’s authority as commander in chief in effect swallows and trumps the rest of the Constitution.

For instance, the administration undertook warrantless surveillance of Americans without court order or supervision. Conducted by the National Security Agency, the program was inaugurated shortly after the terrorist attacks of 9/11 and was inaccurately dubbed the Terrorist Surveillance Program, since in fact it targeted American citizens with no reason to believe they were engaged in any actions involving terrorism. The eavesdropping directly violated even the relaxed warrant requirements of the 1978 Foreign Intelligence Surveillance Act.

Under Republican control, Congress unashamedly refused to conduct serious inquiry into the obviously improper NSA surveillance program. Unfortunately, the GOP majority put partisan comity ahead of fidelity to the law and Constitution. Although more members of the Democratic majority, which took over in January 2007, indicated concern about administration lawlessness, this Congress recently caved in to administration demands and amended FISA to grant the government unprecedented power to surreptitiously spy on the phone calls and emails of American citizens in our own country, based on nothing more then a belief they are communicating with someone not in the U.S. The measure also granted immunity – retro-active and prospective — to telephone companies which aided government law-breaking.

Thus did a genuine need to modernize certain of FISA’s technical provisions—for example, to reverse the court interpretation that monitoring calls sent by modern routing mechanisms through the U.S., even though both parties were located abroad, required a court order—became an opportunity to greatly expand the law’s reach. The result is to make virtually every international call or email subject to monitoring without court oversight. Thereby carving out an entire class of communication from constitutional protection is a breathtaking decision with the potential to do enormous damage to the very meaning of the Fourth Amendment and to the essential foundation of limited government. This law also has effectively neutered the oversight role the Congress or the Foreign Intelligence Surveillance Court should play in this area.

Similarly extravagant has been the administration’s claimed right, as an adjunct of both the president’s constitutional warpowers and the AUMF, to designate American citizens arrested in America as well as alleged terrorists captured overseas as “enemy combatants” beyond the reach of the U.S. Constitution and courts. The detention of combatants captured in battle is a natural adjunct to war, but not the suspension of all constitutional and legislative oversight of the executive’s power to imprison anyone it claims to be a combatant for as long as it desires. The argument that the president has the unique power to suspend basic constitutional guarantees, including the “Great Writ” of habeas corpus, whereby a person has a fundamental right to be brought before a court to determine the lawfulness of his or her detention or deprivation, is particularly dangerous in the midst of a potentially endless “war” where the American homeland is considered to be a — and perhaps the chief — battlefield.

There is nothing in Article II of the Constitution which provides that the president is the military’s commander in chief, to suggest that he thereby gains the power to suspend any law and any constitutional provision at his discretion. Indeed, the very next section reminds the president that at all times he has a responsibility to “take Care that the Laws be faithfully executed,” with no hint of an exception whenever he decides he is acting as commander in chief. In Youngstown Sheet & Tube Co. v. Sawyer (1952), the Supreme Court rejected a similar claim by the Truman administration — that the president’s powers as commander in chief allowed him to seize steel mills despite Congress’ refusal to authorize such an act.

Nor is it plausible that Congress believed that by authorizing military action in response to 9/11 it was empowering the president to deny American citizens their constitutional rights at home. Authorizing military action overseas does not logically mean authorizing every conceivable use of surveillance, arrest, and imprisonment by the federal government at home. Indeed, if the administration had believed this theory at the time, there would have been no reason for it to have proposed the Patriot Act, since all those powers, too, should have been included in the AUMF. Equally important, Congress itself only has the authority to suspend—and only if our country is invaded or faced with overt “Rebellion”—not eliminate, habeas corpus. Congress cannot authorize the president to limit that right in additional circumstances.

SIGNING STATEMENTS

Another example of a direct presidential assault on the separation of powers, and thus the constitutional structure undergirding our free society, are presidential signing statements. Throughout history, signing statements have been used to thank supporters, provide reasons for signing a bill or express satisfaction or displeasure with legislation passed by Congress. Presidents Ronald Reagan, George H.W. Bush, and Bill Clinton all used signing statements to express constitutional and other objections to legislation, influence judicial interpretation, and otherwise advance policy goals.

President George W. Bush has more aggressively – to an historically unprecedented degree — employed the presidential signing statement to challenge or deny effect to legislation that he considers unconstitutional, but nonetheless signs. As the Congressional Research Service reported last year, a much higher share of President Bush’s signing statements have contained a constitutional challenge, and they “are typified by multiple constitutional and statutory objections, containing challenges to more than 1,000 distinct provisions of the law.” This tactic, adds CRS, is “an integral part of the administration’s efforts to further its broad view of presidential prerogatives and to assert functional and determinative control over all elements of the executive decision making process.”

In scores of cases President Bush has claimed that legislation has improperly interfered with presidential authority. In a democracy, such assertions of power—most fundamentally the underlying failure to comply rather than the explanatory signing statement—do not happen in a vacuum. They affect the careful balance of power in our system of government. The executive branch is not free to unilaterally change that balance; our Constitution requires legislative and judicial involvement in lawmaking to ensure public debate and oversight and to guard against centralization of power.
Article I of the Constitution gives Congress the power to make the laws. Under Article II, the president has the duty to ensure that the laws are faithfully executed. The Constitution also provides that if the president

objects to a proposed law, he can veto it. This gives Congress the chance to override his veto, enacting the law despite his opposition, or to sustain his veto, and then work to address the president’s objections. A president may also challenge a law he believes to be unconstitutional in court.

Instead, the current president, especially, has used signing statements, and a refusal to enforce the law, as a sub rosa form of unreviewable veto, usurping the power of Congress and aggrandizing the power of the executive.

EXECUTIVE PRIVILEGE

Another tool of executive aggrandizement has been the doctrine of executive privilege. No where spelled out in the Constitution itself, the claim has been advanced by presidents starting with George Washington. The doctrine is most persuasively rooted in national security, but presidents often have more generally contended that confidentiality is necessary for the operation of the executive branch.
Although the argument at its core is not without force, executive privilege has become an all-purpose shield and boilerplate excuse to hide embarrassing and potentially incriminating information from Congress and the public. That a claim for executive privilege had to be balanced with other interests was evident in 1807 when Aaron Burr, on trial for treason, sued President Thomas Jefferson to produce a supposedly exculpatory letter. Chief Justice John Marshall rejected Jefferson’s argument that disclosure risked public safety and ordered the president to comply. In 1974 the climactic case of United States v. Nixon confronted President Richard M. Nixon’s attempt to use the claim of executive privilege to avoid having to turn over evidence of criminal misbehavior to Watergate special prosecutor Leon Jaworski. The Supreme Court unanimously acknowledged a generalized right of confidentiality, but ruled that this privilege must yield to other government interests, most notably the criminal process. The order that he yield up the tapes recording his Oval Office conversations led to his resignation.

Other presidents have relied on the doctrine to shield their operations from scrutiny. The Clinton administration avoided disclosure of the deliberations of the president’s health care reform task force because First Lady Hillary Clinton was considered to be a government employee under the relevant legislation. This admittedly strained interpretation allowed the courts to avoid ruling on the question of whether executive privilege applied to conversations between government officials and people outside of government.

As in other areas, the Bush administration has even more energetically sought to keep information about many of its activities, even those with no sensitive national security implications, from public view. For instance, the administration resisted a request for disclosure, based on legislation covering “advisory committees,” of the names of participants and results of discussions by members of the Vice President’s National Energy Policy Development Group. The administration lost in the lower courts, but was partially upheld by the U.S. Supreme Court, which sent the case back to the District Court for reconsideration. The D.C. Circuit Court of Appeals ultimately refused to order disclosure based on its interpretation of the relevant statute, based on the fact that several government officials served on the Group.

Elsewhere the administration’s case for secrecy has been more frivolous and less well received. For instance, the administration attempted to keep secret visitor logs detailing Christian leaders who visited the White House and vice president’s residence. Earlier this month the D.C. Circuit distinguished this case from the energy group decision and ruled that the logs were not the property of the White House—which took custody from the Secret Service (part of the Treasury Department) in order to thwart a request under the Freedom of Information Act—and ordered their release.

These cases centered on statutory interpretation. The Bush administration also has more directly used the doctrine of executive privilege to resist disclosures to Congress, even as part of investigations of potential executive wrong-doing. For instance, at a recent hearing of this Committee, Karl Rove refused to appear, based on advice of the White House Counsel, to discuss his role in possible meddling in Justice Department prosecutions. Last year White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers similarly refused to obey committee subpoenas to appear to discuss the firing of U.S. attorneys; the House voted to hold them in contempt.

The House Committee on Oversight and Government Reform has been investigating the White House’s involvement in the disclosure of Valerie Plame’s employment by the CIA. In June Chairman Henry Waxman pointed out to Attorney General Michael B. Mukasey that “In his interview with the FBI, Mr. Libby stated that it was ‘possible’ that Vice President Cheney instructed him to disseminate information about Ambassador Wilson’s wife to the press. This is a significant revelation and, if true, a serious matter. It cannot be responsibly investigated without access to the Vice President’s FBI interview.” However, in an echo of the Watergate controversies, Mukasey refused to comply, citing fear of “the chilling effect that compliance with the committee’s subpoena would have on future White House deliberations.” The White House cited executive privilege in refusing to turn over the FBI interview, even though the vice president’s chief of staff had been convicted of perjury.

In an extraordinary twist on the doctrine of executive privilege, the Bush administration announced last year that it would not allow any U.S. Attorney to pursue a contempt citation on behalf of Congress. By attempting to control federal employees who also are officers of the courts, the administration attempted to place itself beyond effective accountability by any person or institution. Mark Rozell of George Mason University termed this position “astonishing” and “a breathtakingly broad view of the president’s role in this system of separation of powers. What this statement is saying is the president’s claim of executive privilege trumps all.” Indeed, if sustained, Rozell added, this position will allow “the executive to define the scope and limits of its own powers.” As a result, the House has filed suit to enforce its subpoena, the first such lawsuit in history.

“STATE SECRETS” DOCTRINE

Another doctrine used by the executive branch to the detriment of the constitutional separation of powers is the so-called “state secrets privilege.” According to this doctrine, the executive branch refuses to release information in court cases on the grounds that disclosure would harm “national security.” First recognized by the U.S. Supreme Court in 1953, the doctrine has been treated as well-nigh absolute by some judges.

In this case, like many others, there is an obvious basis for shielding sensitive information in extraordinary instances from public view, even to the detriment of a valid lawsuit. However, again, a legitimate doctrine has been twisted to frustrate cases that might expose government wrong-doing and executive misconduct. As a result, government accountability, and redress of wrongs suffered by individuals as the result of government action, have suffered greatly.

For instance, Khalid El-Masri filed a civil case against the U.S. government in a case involving “extraordinary rendition,” in which the government illegally detained Mr. El-Masri in a case of mistaken identity. The trial court judge accepted the government’s claimed “state secrets privilege,” which thwarted disclosures necessary to prosecute the case. A similar result was reached in a similar case by Canadian Maher Arar, who was deported, based on false information, by the U.S. to Syria (he was a dual citizen), where he was apparently tortured. The Bush administration also invoked the state secrets privilege to defeat lawsuits challenging the government’s unlawful FISA surveillance program.

Although judges can order, and have ordered, disclosure of disputed documents and other information to them for in camera screening, too often courts have given inordinate deference to executive branch claims. But the privilege should be treated as qualified, not absolute. A government refusal to allow judicial inspection could be met with forfeiture of the case. Congress could assist the judiciary by holding hearings and drafting legislation clarifying the authority of judges, procedures to be used to adjudicate executive claims of state secrecy, and sanctions to be imposed for the executive branch’s refusal to comply.

CONGRESSIONAL OVERSIGHT

Unfortunately, Congress has been at least impartially complicit in this and other presidential “power grabs.” It repeatedly has acquiesced to President Bush’s unilateral actions. It has failed in its constitutional obligation to make the laws and to oversee the executive branch to ensure that the latter properly implements the laws passed by Congress.

Enforcing presidential compliance with the law is not easy, especially since a pattern of executive law-breaking has been established. However, the people—the citizens in whose name this House and the rest of the government act—can and should insist that those elected president, this coming November and in the future, respect the separation of powers and other constitutional limits on their authority.

Taking an oath to “preserve, protect and defend the Constitution of the United States” requires no less.

Moreover, the legislature has many tools at its disposal to promote respect for the nation’s fundamental law. It can enlist the courts, of course. It can use its power to hold oversight hearings, backed by the power to subpoena and hold executive officers in contempt. It can refuse to confirm presidential appointments.

Most fundamental is its power to control appropriations. Congress can shape funding in the relevant area to encourage compliance with the law. Moreover, broader retaliation, though less desirable, is another possibility. For instance, the Reagan administration’s attempt to thwart explicit congressional guidelines over federal contracting led to a vote by this Committee to defund the Office of the Attorney General. A compromise was reached: Congress funded the Attorney General’s Office while the administration complied with the law.

The most important requirement is that Congress treat seriously its responsibility to uphold the Constitution. Neither the Bill of Rights nor the separation of powers are self-enforcing documents or principles. The legislative branch has a critical role to play.

The Constitution creates explicit guarantees for individual liberty and limits on government power out of the recognition that even the best-intentioned public officials working to achieve the most public-spirited aims make mistakes. That surely has been evident during the so-called “Global War on Terror,” in which more than a few innocent people have been not just detained, but also imprisoned and tortured. The Bill of Rights and the separation of powers are not mere technicalities, but essentials of our government and our entire system of ordered liberty.

I know this Committee understands that the president’s quest for intelligence and desire for flexibility, legitimate as they are, should not be allowed to serve as a subterfuge for circumventing constitutional protections for liberty and restrictions on presidential power. U.S. District Court Judge Royce Lamberth, appointed by President Ronald Reagan, has reminded us that, “[w]e have to understand you can fight the war [on terrorism] and lose everything if you have no civil liberties left when you get through fighting the war.”

The temptation to cut constitutional corners is not the province of any one party. Rather, it grows when one party controls both the executive and legislature. Then party comity sometimes overrides institutional differences, as it did most recently between 2001 and 2006.

But our constitutional system, and its commitment to limited government and individual liberty, is based both on a series of explicit guarantees that constrain the use of government authority, and a structure that divides government authority. As such, the separation of powers, with the checks and balances expected to naturally follow, is the bedrock foundation of American constitutional government. It is a foundation clearly in danger of crumbling.

Bob Barr is the Libertarian Party candidate for President and a former member of Congress from Georgia.

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

More specifically, The American Freedom Agenda Act would

• bar the use of evidence obtained through torture
• require that federal intelligence gathering is conducted in accordance with the Foreign Intelligence Surveillance Act (FISA)
• create a mechanism for challenging presidential signing statements
• repeal the Military Commissions Act, which, among other things, denies habeas corpus to certain detainees
• prohibit kidnapping, detentions, and torture abroad
• protect journalists who publish information received from the executive branch
• ensure that secret evidence is not used to designate individuals or organizations with a presence in the U.S. as foreign terrorists.

None of these were constitutional in the first place, and all are morally repugnant to the ideals of a free society. There is evidence of strong support for ending each of these individually, but no one in government seems to have the courage to do anything about it.

Ron Paul, on the other hand, had the courage to introduce legislation to end all of it. No one on either side of the aisle has done anything close.

I was browsing around the net looking for people who were writing about this big news, and came across an article on DailyKos.com (the hotbed of Democratic bloggers online) – which simply gave the text of the legislation and asked people to support it:

Please contact your Rep and ask for them to support this Resolution that has been introduced in the House today. The details of the Act are under the fold.

This didn’t get much traction on Kos – which I thought was odd, because it was a call to repeal so much of what the Bush administration had instituted over the last 6 years.

In fact, reading the comments was even worse – of the few posted, there were two that were downright hostile to the bill – not because it was a bad bill – but because it was introduced by Ron Paul, a Republican.

Here’s a comment by “Marcus Tullius”

Instead of supporting Ron Paul’s bill, I’d like to see the Dems propose their own.

And another:

I do not plan to help Ron Paul make political points. Imo, the Majority needs to put forward a bill proposing essentially the same thing. Couple of reasons why.

First, it denies R’s the ability to say that they are the party advocating a restoration of the rule of law. I aim to kill their party, and helping R sponsored bills pass is not on my list of shit to do right now.

Second, it requires any R that would support to vote against his/her party, and his/her president. That’s helpful because it further splinters their party, and it weakens the president.

So, to my mind, the only solution is a Dem sponsored bill. And they need to propose one, imo.

Although no one in his party has introduced legislation that’s even remotely similar – and although he supports the repeal of these awful laws, he won’t support it unless it’s been done by a Democrat.

It’s just this kind of attitude that, in my opinion, has gotten us to where we are now, and people like Marcus make me sick.

Marcus has no problem with torture, kidnapping, ending habeas corpus, and the like – and refuses to support the end of such activities, unless ended by a democrat.

I wonder how pervasive this kind of attitude is.

Party vs Freedom?

People like Marcus are happy to throw away your liberty, as long as it serves his party.

Now that’s a traitor if I ever saw one.

What does this mean? Well, it’s quite simple. Under Fast Track, the president has the authority to ignore the will of Congress in negotiating new trade agreements.

We must remember that the US Constitution was written under the principle of “positive grant.” This means that the Federal Government is authorized to exercise only those powers that are specifically given to it by the Constitution. Nothing more and nothing less.

This was so important to the founders that they codified it in law as the 10th Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

There’s nothing, whatsoever, in the Constitution, which authorizes the president to create, conduct and/or conclude trade deals in this manner. This authority resides with Congress. Period.

Do I trust Congress to do a good job managing trade? Absolutely not. But, the potential for the abuse of power rises in proportion to how few the number of people have that power.

NAFTA is not free trade. It’s never been free trade, and this new push by G.W. isn’t free trade either.

Likewise, it’s not Constitutional. It never has been. And this exercise of raw power by an individual – like Bush is doing and Congress has allowed – has nothing to do with the system of government that was created by the founding fathers.

The war happened because when Bush first indicated his intention to go to war against Iraq, Congress refused to insist on enforcement of Article I, Section 8 of the Constitution. For more than 200 years, this article has spelled out that Congress — not the president — shall have “the power to declare war.”

Because the Constitution cannot be amended by persistent evasion, this constitutional mandate was not erased by the actions of timid Congresses since World War II that allowed eager presidents to start wars in Vietnam and elsewhere without a “declaration” by Congress.

Nor were the feeble, post-factum congressional resolutions of support of the Iraq invasion — in 2001 and 2002 — adequate substitutes for the formal declaration of war demanded by the founding fathers.

This is the essence of the unconstitutionality of the war in Iraq – and of every war American politicians have waged since World War II – the last time there was a Constitutionally-mandated declaration of war.

POSITIVE GRANT

The Constitution was written under the principle of “positive grant.” This means that the federal government is authorized to exercise only those powers which are specifically listed in the Constitution. This was so important to the founding fathers that they codified it in law as the Tenth Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

As Cuomo made clear, Article I, Section 8 of states that Congress shall have the “power to declare war.” Nowhere in the Constitution is the Congress given authority to transfer that power to any other person or branch. And, nowhere is the president given the power to declare war either.

AUMF. AN UNCONSTITUTIONAL TRANSFER

In 2002, Congress passed the “Authorization to Use Military Force” (AUMF). Although Congress claimed that this legislation “satisfied” the requirements of Article I, Section 8, it did not.

The AUMF was not a declaration of war. It authorized the president to make that decision on his discretion. Thus, the AUMF was a transfer of the war-declaring powers to the excecutive branch – which is clearly not authorized by the Constitution.

In short, what Congress told the president with the passing of the AUMF was “You decide when or if we go to war with Iraq. Just let us know shortly after.”

Therefore, every single member of Congress who voted to transfer this power to the president violated the Constitution. And, the president violated the Constitution by not refusing this illegal transfer of power.

It’s pretty simple. When one branch breaks the law, it’s up to the others to “check” that branch. But, unfortunately, all three branches have been ignoring the plain English of the Constitution for decades.

NO MATTER WHAT

As far as declaring war, James Madison, the “father of the Constitution,” summed it up best:

“The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”

It’s in plain English. No right. In any case.

That even includes a situation where the Congress violates the Constitution and transfers its war-declaring powers to the president.

In any case.

No matter what.

Period.

The bitter transatlantic row over Iraq intensified as another key British general lambasted the US for bungling the aftermath of the invasion.

Major General Tim Cross, the most senior UK officer involved in the post-war planning, said Washington’s policy had been “fatally flawed”. He also insisted he had raised serious concerns about the possibility of the country sliding into chaos with Donald Rumsfeld – but the then-US defence secretary “dismissed” the warnings.

Once again, the personalities and the media are concerned with the symptoms of our problems in Iraq – rather than the cause.

Although it seems that the Bush administration has made plenty of mistakes in the handling of Iraq – there are always going to be people who support those decisions. Thus, the debate in the media is generally focused on two sides – proper vs improper handling of the war – but neither actually oppose the war itself….just its handling.

The failures of managing an aggressive war are just the symptom of an inherently flawed foreign policy of aggression, force and war.

The US Constitution was written under “positive grant.” This means that the federal government is authorized to exercise those powers which are specifically given to it in the Constitution. This was so important to the founders that they codified it in law as the Tenth Amendment.

The war in Iraq was was unconstitutional from the start because it lacked a declaration of war from Congress – as mandated by the Constitution. This has been covered at length in a number of previous posts on this site.

No matter what the politicians or the pundits may tell you, there is nothing, whatsoever, in the Constitution, which authorized the Congress to delegate its war-declaring powers to the Executive Branch.

Undeclared wars are the norm in Washington, and they have been a cancer that’s infected U.S. foreign policy for decades. Mismanagement of these undeclared wars is just an obvious and expected symptom. These symptoms will never go away until the cancer is removed.