The Executive War Powers that do not exist

From Random Hipatia

Mr. Bush has made several interesting assertions. First, he claims that the executive of the U.S. is granted special and exceptional powers at wartime under the constitution. Second, he asserts executive right to detain and deny due process to a special category of citizen, a citizen “enemy combatant”, who has taken up arms against the people of his own nation, or otherwise provides “aid and comfort” to “terrorists” and “enemies of the U.S.” during “a time of war” and to engage in warentless searches (eavesdropping) of U.S. citizens, further bypassing due process “during a time of war”. He further claims that the conditions of and threats we face in these times were never considered when the constitution was drafted.

I decided it was time to see for myself what the constitution might say or not say on these topics, and therefore directly test Mr. Bush’s assertions. The U.S. constitution is a public document. Anyone is free to look at or examine it at any time or any where. The entire content, including all 27 amendments, are even easily accessible on the web.

I did not need to go further than article III before I got a rather clear and unambiguous answer to all of the questions Mr. Bush poses. In the few short sentences of section 3, Article III, I think we find all of these questions answered. We can read it together if you like.

The first thing I found in this rather remarkable and I suspect seldom read article is that indeed our forefather’s certainly did consider the question of what to do about a citizen “enemy combatant”, as in a citizen who chooses to take up arms against the military forces of our nation or otherwise provides aid and comfort to an enemy power at a time of war. The charge is called “treason”, and this is how the constitution describes it:

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

While the supreme court had chosen to limit the definition of “enemy combatant” only to someone “carrying a weapon against American troops on a foreign battlefield” in the Hamdi case, according to the Defense Department, and as argued in the Padilla case, an enemy combatant includes anyone “part of or supporting Taliban or Al Qaeda forces or associated forces.” Both the narrow definition of the Supreme Court, and even the broader definition of the executive branch, fall well within the circumstances and definition offered in Article 3 Section 3 for “Treason”. Indeed, almost identical language is used in 3/3 as the definition offered by the administration of “enemy combatant” in reference to a U.S. citizen. I think even a strict constructionist, like John Roberts, cannot ignore this rather inescapable conclusion. But, there is more:

“No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

This I think says two important things. First, those “enemy combatants” must have a trial, and the due process and full involvement of the judicial branch that this directly implies. Further, it suggests, given the gravity of the crime and possibility for it’s misapplication, the burden of proof required to sustain, and rights granted to a potential defendant, of a charge of treason may well be greater than those offered other classes of defendants. Finally, section 3/3 concludes with

“The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.”

This offers a special role for congress in the definition of what to do with someone who has been convicted of treason though a lawful judicial process.

What is entirely absent in 3/3 is any mention whatsoever of the executive. This is clearly because the executive branch has no special role or special powers whatsoever in the handling of “enemy combatants” as envisioned by our forefathers and as written in the constitution, and this is rather logical, for they understood that the greatest danger to the U.S. constitution was not a foreign enemy, but rather an executive asserting arbitrary dictatorial powers. This especially clear in reading the federalist papers, though it’s conclusion is found in 3/3 as well as in many other parts of the constitution.

If the president has no special role whatsoever for the handling of enemy combatants, then clearly he has no special powers to discard their legal rights or remove their 4th amendment protections. Ergo, there are no special powers for wiretapping. Indeed, I think 3/3 makes it very clear, that even at a time of war, due process must exist and cannot be suspended. But we skipped some important parts, so let’s read back a bit:

Article I, section 8 declares the power of the U.S. Congress. These include, among others, ” To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;”, to “raise and support Armies…to provide and maintain a Navy… To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”. War powers, then clearly start from the congress. So do certain powers over the commissioning of officers and other aspects of the military. Hmm.

Interesting enough, while the president can claim to be the commander-in-chief of the U.S. armed forces, these same forces swear no oath of loyalty to him. Rather every commissioned officer in the U.S. military swears an oath to “defend and protect the United States Constitution, against ALL enemies, foreign and DOMESTIC”, much like the president himself. To this we can add the “Nuremburg Principle”, which introduces the idea that a commisioned officer or soldier can and should be able to disregard an “unlawful” order.

A little further we find Article II, Section 2, ” 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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

Here we find something of executive war powers. Clearly, the president has the power to “pardon” Pedilla, but lacking is any statement whatsoever of special “war powers” or the ability to set aside due process in any form. Nor, incidentally, does congress seem to have these magical powers either, so certainly they cannot grant them to the president even if they wish to. But let’s go a little further, where did the specific idea of executive war powers come from anyway?

First, we can begin with the federalist papers, #69, which deals with the proposed executive. Here we find “The President is to be the “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. He is to have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment;...” Very consistent with the later language of 2/2. But, there is more:

“The President is to be commander-in-chief of the army and navy of the United States. In this respect his 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;” Later we find:

“The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States.”

Clearly, what war powers that may exist in the executive branch and offered to the president were meant to be rather nominal, and only those minimum powers needed to direct and command the armed forces of the United States. To this mix we add the war powers act of 1973.

These powers and this act in fact further diminishes the authority of the executive. Certainly it deals with the mechanics of when and where the executive may introduce the U.S. military and hence is directly related to his role of commander-in-chief as well as being consistent with what the federalist papers further clarify in regard to this very limited role, being limited solely to the mechanics and use of the U.S. military.

Next, we can go to case law, to see how past cases involving war powers were decided. Most relevant, I think, is Ex Parte Milligan; In 1866, the supreme court found unconstitutional Lincoln’s order authorizing trial by a military tribunal of Lambdin P. Milligan, an Indiana Lawyer accused of supporting the Confederacy. The court ruled clearly that citizens must be tried in civilian courts, even during war. The sole exception they recognized was if civilian courts are neither open or operating. The same court, incidently, also found that Lincoln lacked authority to declare martial law in Indiana. I guess that kills the idea of staging martial law to then round up and shoot your dissenters in military tribunals because the courts would be effectivily “closed.”

Again, in all these things, I fail to find anything that supports any of the assertions of Mr. Bush, and many that clearly and directly refutes all of them. Is there some part of the constitution I had missed, or did Mr. Bush simply make it all up as he went along?