Where does it end? How much power should the other branches cede to the Executive in his role a Commander-in-Chief of the U.S. Armed Forces in war time? Are we as a nation morphing, broken law-by-broken law, abuse-by-abuse, subversion-by-subversion, into a totalitarian state where the President makes, enforces, and interprets American and international law, but has the power to ignore the same at will? The various memos certainly seem to suggest that the President in his capacity as Commander-in-Chief can do whatever it takes to defend the United State including flouting laws he does not agree with. Is the Office of the President to have no real limit to its wartime power?
Constitutionally, the power of the Executive is limited, held in check by the other two branches of government. Wartime Presidential powers are not clearly defined in the constitution, the document only states that:
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—US CONT, art. II, § 2, cl. 1.Nowhere does the constitution state that Congress should relinquish its power to check Executive even in times of War. How then is the Bush Administration now inferring the broad inference that the Executive has virtually unfettered power in times of War? The Federal Courts have weighed in and put certain breaks on the Administration, but the linchpin is the Supreme Court.
In hearings before the Senate Judiciary Committee on Tuesday, June 8, 2004 in which John Ashcroft testified on the memos but refused to produce them, Senator Edward Kennedy (D), Massachusetts cited one of the memorandums that concluded
President Bush was not bound either by international treaties prohibiting torture or by federal anti-torture law because as commander-in-chief Mr. Bush was responsible for protecting the nation.And Ashcroft said several times during his testimony that “that critics consistently failed to take into account that the United States was at war.”
The deep irony is that the United States is not in a declared war; only Congress has the constitutional power to declare war and it hasn’t. And if we accept the precept that the War on Terror is real and that America will be fighting it well into the foreseeable future, where does Presidential power end; how long will the President hold these wartime powers, and how will their exercise affect the American Republic? And who defines when the War on Terror is over? Congress, with the passage of the law authorizing the President to take actions deemed necessary to defend the nation, seems to have left that determination up to the Executive. Where are the checks and balances?
One light at the end of the tunnel however, might be the Supreme Court which has yet to decisively weigh in on several vexing cases before it dealing with the limits of Executive power in Wartime. But the High Court could conceivably rule either way, and if it rules in Bush’s favor, what of us—the American citizens? Will we—the American people—in the tradition of totalitarian states throughout history, be subject to random search and seizures, interrogations without right to counsel, after a label of enemy combatant is etched into our foreheads by a President whose power is now unchecked? What of the Bill of Rights, not to mention the rest of the Constitution, after such a ruling?
I, for one, see a threat to the American state not from without, but from within as the Executive in the name of security is destroying the very thing that made America great: respect for the rule of law. And I for one will do my part in November to send Bush and his scary bunch of cronies back to Texas. I, for one, do not want to live in a country that could even entertain the notion of crowning the next Caesar, do you?