The . . . infamous Bybee Memo, is not an anomaly in the thinking of the Bush Administration. It is their doctrine:
In a series of opinions examining various legal questions arising after September 11, we have examined the scope of the President's Commander-in-Chief power. . . . Foremost among the objectives committed by the Constitution to [the President's] trust. As Hamilton explained in arguing for the Constitution's adoption, "because the circumstances which may affect the public safety" are "not reducible within certain limits, it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defense and safety of the community, in any manner essential to its efficacy."
. . . [The Constitution's] sweeping grant vests in the President an unenumerated Executive power . . . The Commander in Chief power and the President's obligation to protect the Nation imply the ancillary powers necessary to their successful exercise.
In short, when acting as Commander-in-Chief, the President is above the law says the Bush Administration. And so have they argued on everything. Torture. Enemy combatants. And now warrantless surveillance of American citizens.
The Bybee memo, and by extension, the Bush Administration and Republicans, argue that it is the Constitution that grants the President these powers. Of course they also have argued that FISA empowers the Bush Administration to carry out the warrantless surveillance that Bush admitted and defiantly embraced yesterday in his weekly radio address. But this is nonsense - simply dishonest, as Glenn Greenwald and others have demonstrated.
And the Bybee memo, and likely the Yoo memo, that provided the legal justification for the warrantless surveillance, also rely on dishonesty about the Constitution and about Alexander Hamilton and the Federalist Papers. I'll explain below the fold.
The President's constitutional power to protect the security of the United States and the lives and saftey of its people must be understood in the light of the Founders' intention to create a federal government "cloathed with all the powers requisite to the complete execution of this trust." The Federalist No. 23.
But what does Federalist 23 actually say?
THE necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union, is the point at the examination of which we are now arrived.
This inquiry will naturally divide itself into three branches the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. Its distribution and organization will more properly claim our attention under the succeeding head.
The lie of Bybee and Yoo is obvious. Federalist 23 is not speaking of Presidential power. It is speaking of the power granted the federal government. To cite Federalist 23 as support for a claim of Presidential power over the Congress and the Courts is to flat out lie.
The Bybee memo continues its dishonesty:
The text, structure and history of the Constitution entrusted the President with the primary responsibility, and thus the Power, to ensure the security of the United States in situations of grave and unforeseen emergencies. . . . U.S. Const., Art. 2, [Sections 1 and 2].
What do Article 2, Sections 1 and 2 of the Constitution say?
The executive Power shall be vested in a President of the United States of America. . . . 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.
It appears that Yoo and Bybee are not strict textualists on this issue. What Article do they ignore? How about Article 1, Section 8? The powers of the Congress include:
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
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 . . .
So how can this possibly lead to the Yoo/Bybee assertion of Presidential plenary power? By lying about it. It is that simple. But perhaps Alexander Hamilton and case law will support their case in other writings. I explore that now.A Supreme Court opinion cited by Yoo/Bybee to support their assertions of plenary Presidential power is The Prize Cases, decided in 1863. To Yoo/Bybee, the Prize Cases stand for the proposition that the President has unfettered power to act to defend the security of the Nation. But what did the Prize Cases actually say? The Prize Cases involved the seizure of certain vessels who tried to defy the blockade of the South declared by President Lincoln prior to the formal declarations by Congress of an insurrection. Subsequently, four months later, Congress did make such declaration. So does this buttress Yoo/Bybee's point? Let's see:
By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is 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 has no power to initiate or declare a war either against a foreign nation or a domestic State. But, by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the government of a State or of the United States.
If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader or States organized in rebellion, it is nonetheless a war although the declaration of it be "unilateral." . . . This greatest of civil wars was not gradually developed by [p669] popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.
. . . Whether the President, in fulfilling his duties as Commander-in-chief in suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. "He must determine what degree of force the crisis demands."
. . . If it were necessary to the technical existence of a war that it should have a legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in enacting laws to enable the Government to prosecute the war with vigor and efficiency. And finally, in 1861, we find Congress "ex majore cautela" and in anticipation of such astute objections, passing an act approving, legalizing, and making valid all the acts, proclamations, and orders of the President, &c., as if they had been issued and done under the previous express authority and direction of the Congress of the United States. [p671]
. . . On this first question, therefore, we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion which neutrals are bound to regard.
If this is support for the Yoo/Bybee view, I don't see it. Lincoln took up arms, via blockade, against the insurrection, formal and declared, of the Southern states. What that has to do with the matters at hand is not clear at all to me. Moreover, Congressional acts are cited as authority for the President's actions. Surely this does not argue for unfettered Presidential Commander in Chief power. In essence, the Prize Cases, the Apollon case and others cited by Yoo/Bybee relate to the President's ability to act in defense of the country when the country is attacked. Think Pearl Harbor. The question of waiting days or weeks for Congressional action to act in defense of the Nation is what those cases were about. If Bush were to have acted to stop the 9/11 attacks without Congressional authorization then the analogy would hold. But unless Bush is acting in ways to stop specific attacks that are imminent and by known parties now, then these analogies do not hold. What Yoo/Bybee argue for is that the President can turn the country into a police state by invoking Commander in Chief powers. And this is simply ludicrous.
While Yoo/Bybee cite the Framers, Hamilton and the Federalist Papers, it is obvious that that Hamilton and the Federalist Papers destroy their arguments. For example, in Federalist 24, Hamilton wrote:
A stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature.
If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.
So much for plenary power of the Executive. Hamilton write Federalist 24 precisely to rebut the very claims Yoo/Bybee now make as to the unfettered power of the President as Commander in Chief. This is the dispositive proof that Yoo/Bybee are merely lying.
And what of Federalist 26 Here, Hamilton allays the fears of an American monarchy:
It may not be amiss in this place concisely to remark the origin and progress of the idea, which aims at the exclusion of military establishments in time of peace. Though in speculative minds it may arise from a contemplation of the nature and tendency of such institutions, fortified by the events that have happened in other ages and countries, yet as a national sentiment, it must be traced to those habits of thinking which we derive from the nation from whom the inhabitants of these States have in general sprung.
In England, for a long time after the Norman Conquest, the authority of the monarch was almost unlimited. Inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. But it was not till the revolution in 1688, which elevated the Prince of Orange to the throne of Great Britain, that English liberty was completely triumphant. As incident to the undefined power of making war, an acknowledged prerogative of the crown, Charles II. had, by his own authority, kept on foot in time of peace a body of 5,000 regular troops. And this number James II. increased to 30,000; who were paid out of his civil list. At the revolution, to abolish the exercise of so dangerous an authority, it became an article of the Bill of Rights then framed, that ``the raising or keeping a standing army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law.''
In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. The patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. They were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community.
Mr. Yoo, Mr. Bybee, may I introduce you to Mr. Alexander Hamilton.
Yesterday, Senator Russ Feingold said:
The President believes that he has the power to override the laws that Congress has passed. This is not how our democratic system of government works. The President does not get to pick and choose which laws he wants to follow. He is a president, not a king.
Senator Feingold, Alexander Hamilton agrees with you.