Presidential power

Posted: Nov 23, 2001 12:00 AM
WASHINGTON, D.C. -- The chief executive with the highest approval ratings ever recorded hadn't even issued his first presidential pardon -- for a turkey named "Freedom" -- before he was being blasted for abuse of power. The first war of the 21st century was less than 60 days old, and the ACLU, Common Cause, People for the American Way and a host of editorial screeds were flaying the commander in chief for, among other things, "Abandoning Democracy's Checks and Balances." Potomac pundits who applauded Bill Clinton's waste of expensive cruise missiles to destroy cheap tents in Kabul and aspirin plants in Khartoum on the eve of his deposition in the Monica Lewinsky affair are attacking Bush for "suspending civil liberties." As usual, the hyperbole of the "Blame America First Crowd" and the overwrought hand-wringing of their polemicists has obscured a nagging reality: They may be right -- but for all the wrong reasons. The focus of the Fabian fury: President Bush's Nov. 13 order authorizing trial before military tribunals for certain international terrorists and their collaborators for "violations of the laws of war." For good measure, the critics also cite the extended detentions of suspects and illegal immigrants, and the Justice Department's decision to "monitor communications between certain suspects, material witnesses and their attorneys." All this, says the Bush administration, is necessary "in time of war" and to "protect the American people from further terror attacks." And they, too, may well be right. And therein lies the problem. We're not at war. Even though U.S. soldiers, sailors, airmen and Marines are fighting what certainly looks like a war, it's not. Even though we have yet to recover all the bodies from the savage Sept. 11 attack and even though our attackers have proclaimed an "unending war" against us, Congress refused to declare war on them. And because no war has been declared, what President Bush has ordered, and what Attorney General John Ashcroft is carrying out, may well redound to our ultimate disadvantage. Now don't get me wrong. This is not a criticism of Bush or Ashcroft. Both are honorable men, with the best of intentions. It's likely that Bush will go down as one of our great presidents. I've long admired and supported both men, and I believe them when they say that when the "present emergency" is past, the judicial detention and surveillance measures now in place will no longer be used. For me it's not political, it's personal. For those of us who took an oath to "support and defend the Constitution of the United States against all enemies, foreign and domestic," there has always been a problem in fighting undeclared wars. The framers didn't err when they gave Congress the power to declare war. And it wasn't a mistake when they gave the president extraordinary power as commander in chief in time of war. Nor is it a "coincidence" that the only wars we really win are those that are declared. When looking at an issue as volatile as "military tribunals" and "detention without trial," history -- and that Constitution -- are a better guide than the passions of the moment. When Madison and Mason were crafting a Constitution that would carefully define the division of powers within a government, they were seeking the means of circumscribing the power of that government over the governed. The framers were anxious that others might come along after them who had less sanguine motives. Their concerns weren't over noble men like Bush and Ashcroft. Rather, those who voted on Sept. 17, 1787, to send the Constitution to the states for ratification wanted a means of reigning in those who might try to abuse their power and the trust of the people. So are these military tribunals an abuse of power? Not if they are only used to try foreign terrorists in foreign lands. Will George Bush or John Ashcroft violate the trust of the people? I can't imagine it. But what of others who come after them? Will some future president or attorney general, in a moment of crisis, real or perceived, cite the measures taken in the undeclared war of 2001 as a precedent for unwarranted action? Only those with the gift of prophecy know. But recent history might be a guide. In the 1980s and 1990s, there were many -- ultimately on both sides of the political spectrum -- who came to see the so-called independent counsel statute as an unconstitutional aberration in our judicial process. The fact that these star chamber inquisitors were ultimately abolished is scant recompense to the lives that they ruined, careers destroyed and fortunes wasted. There is no doubt that those who perpetrate cowardly acts of terrorism deserve swift, sure justice. Should any of the followers of Osama bin Laden or the Taliban leader Mohammed Omar be captured, a military tribunal in Afghanistan is certainly warranted. But for any of those apprehended here in the United States, the Constitution that has served us so well for more than two centuries should be our guide for at least two more.
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