The courts and Congress are beginning to rein in

 Pres. Bush’s presumed powers as Commander-in-Chief

M OST PRESIDENTS like to try and expand their powers. But in repeatedly invoking his constitutional authority as commander-in-chief in the “war on terror” to bypass both domestic laws and international treaties, President George Bush has taken the art to new heights. Now a backlash is under way, with both the courts and Congress overcoming their traditional defeterence to the executive in wartime.

Two congressional committees have set up inquiries into Pres. Bush’s authorisation of a secret domestic spying program without warrants. Another has announced its intention of “monitoring” the administration’s implementation of a new ban on the use of torture that the president seems bent on sidestepping. And this week senators grilled Judge Samuel Alito, Pres. Bush’s new pick for the Supreme Court, about his attitude to executive power.

Meanwhile, the court is considering holding hearings on the president’s claimed wartime authority to detain terrorist suspects indefinitely and without charge. Earlier this month, while backing the administration’s right to transfer José Padilla, an American citizen, from military custody to face trial before a civilian court in Miami, it reserved the right to examine “in due course” Mr Padilla’s broader claim that Pres. Bush overstepped his authority in holding him for more than three years without charge as an alleged “unlawful enemy combatant”.

Mr Padilla’s transfer had been denied in December by the normally conservative Fourth Circuit Court of Appeal. In a sign of impatience, it lambasted the government for using one set of arguments to justify Mr. Padilla’s continued detention and another to persuade the Miami grand jury to indict him. Judge Michael Luttig was particularly scathing about the apparent ploy of putting Mr Padilla on trial in order to avoid the broader issue of enemy combatants going to the Supreme Court.

The administration said this was “an unwarranted attack on the exercise of executive discretion”. It used the same stock argument against Senator John McCain’s bill banning the “cruel, inhuman and degrading treatment” of detainees by Americans anywhere in the world. And even though Pres. Bush eventually gave in to the public outcry on this issue, it has now emerged that at the very moment of signing the bill into law the president quietly issued a statement reserving his right to flout it: “The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the presldent..... .as commander-in-chief.”

A furious Mr McCain, who is due to take over as chairman of the Senate Armed Services Committee, has said the committee will monitor the law’s implementation closely. Suspicions about Pres. Bush’s intentions have been aggravated by the recent row over the CIA’S use of “extraordinary rendition” to transport terrorist suspects to third countries for interrogation; but they also date back to the infamous “torture memos”, leaked in 2004, where administration lawyers claimed the president could approve any interrogation technique he believed necessary to protect the nation’s security.

Since then, the White House has retreated, dismissing the memos as a scholarly effort to define the perimeters of the law”; it has also broadened its shockingly narrow definition of torture. But it has not retreated from the notion that the president’s wartime powers mean he can do what he sees fit.

Pres. Bush is not the first to claim the right to override treaties and laws in time of war. Abraham Lincoln suspended the right of habeas corpus during the civil war, and thousands of Japanese-Americans were detained without charge in the second world war. But with the return of peace, habeas corpus was restored and the in-ternees released. The problem with Pres. Bush’s war on terror is its unending nature. He himself has said it will last “until every terrorist group of global reach has been found, stopped and defeated”.

All the same, it is hard to find anyone nowadays who thinks Pres. powers are unrestricted. This week, Mr Alito said the president does not have a “blank cheque”, even in wartime. Dick Cheney, the most ardent defender of executive power, recently claimed (with a straight face) that Pres. Bush “has made clear from the outset, both publicly and privately, that our duty to uphold the law of the land admits no exceptions in wartime.”

The vice-president’s claim might be justifiable if you believe that the commander-in-chief clause of the constitution trumps all other laws. But this is precisely what others are now beginning to challenge.

There is a legal precedent. In 1952, during the Korean war, the Supreme Court 7 was asked to rule on whether Harry Truman had the right to order the seizure of the nation’s steel mills without consulting Congress. It decided he did not. His power as commander-in-chief, argued Justice Robert Jackson, was at its strongest when he acted pursuant to congressional authorization. But “when the president takes  measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” •


                                                                                  The Economist Magazine

                                                                                  January 14th, 2006 (pg. 36)

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