Life as a Spectator Sport

Warning—long post ahead. Further warning—I may not know what I'm talking about, as I'm not a lawyer. But I can read, and think, and draw conclusions. If the conclusions I've drawn are unjustified by the facts, I wouldn't mind someone setting me straight.

I read through the memo referred to in Monday's Wall Street Journal article, after Bobby posted a link to it on Bark Bark Woof Woof, and was struck immediately by the endless references to statutes and legal precedent. Granted, this is lawyer-ese and I'm not a lawyer, but it still seemed like using a nuclear bomb to swat a fly. It doesn't appear to me, in my non-lawyerly naivete, that such minutiae was necessary in order to establish our right to define interrogation methods and use them against our enemies.

Summarized, the report consists of four sections:

• Pertinent international law, including the Geneva Convention;
  
• Pertinent domestic law, including the Torture Statute of Federal Criminal Law;
  
• The rights of the President as Commander-in-Chief; and,
  
• Operational aspects of the Uniform Code of Military Justice.

It's the third section—the apparently unlimited and dictatorial powers the president can exercise—that most discussion has focused on. I find it puzzling that the authors of this report went to such lengths both to enumerate them and to provide historical and legal precedent for them. One would think, after all, that a thorough examination of international and domestic law would lay a sufficient base for what is legal. The protracted elucidation of the president's power suggests that he intended to go beyond what was legal under domestic and international law. My first inclination was to say that he intended to break what would be the law for any private citizen, and wanted assurance that as President he could get away with it, and that may indeed have been the primary purpose of this document.

After some online investigation, however, I was left with a much more disturbing conclusion about the overall situation.

The constitution of the United States says, in Article 1, Section 1, Clause 1:

The executive Power shall be vested in a President of the United States of America.

Section Two states:

Clause 1: 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 Offences against the United States, except in Cases of Impeachment.

Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

This is the sum total of the constitutional foundation for executive power and for the president's position as Commander-in-Chief of the armed services. To an eye untrained both in the law and in history, it would take a broad interpretation indeed to find in these laws the statement in the memo that, "In the light of the President's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President's ultimate authority in these areas."

The authors of the memo contend that the courts have provided that broad interpretation, though the cases quoted in the memo are so far from pertinent to the President's executive power as to make their choice suspect. For example, the memo says:

The Supreme Court has established a canon of statutory construction that statues are to be construed in a manner that avoids constitutional difficulties so long as a reasonable alternative construction is available.

It goes on to cite a Florida case from 1988, Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, which quotes an earlier case in saying:

[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, [courts] will construe [a] statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.

Pretty convincing? Turns out that the case cited in the memo was a suit brought by the Edward J. DeBartolo Corp. against a Florida union whose members were distributing handbills at a mall owned by the plaintiff. Another company had begun construction of a building connecting to the mall. This second company was not paying union wages to its employees, and the handbill asked shoppers at the mall to boycott the businesses who leased space in the mall. A first court ruled that since the second company was not affiliated with the owner of the mall, nor with the businesses in the mall, it was not proper for the union to potentially damage them because of its gripe with the other company. I think most people would find that a reasonable conclusion, and the National Labor Relations Board, which had sided originally with the union, then changed its mind and ordered the union members to stop their handbilling. On appeal, however, the lower court's ruling was overturned. The appeals court said that "(n)either the courts nor the NLRB has directly considered the constitutionality of restricting nonpicketing union publicity." It was in this context that the appeals court quoted an earlier Supreme Court ruling (NLRB v. Catholic Bishop of Chicago) in saying:

'an Act of Congress (should) not be construed to violate the Constitution if any other possible construction remains available'

Two things are worth noting here. First, the Supreme Court's ruling in the NLRB case pertained to Acts of Congress, not to acts of the President. I think there is a significant legal distinction here, though I don't know enough to delineate it. Second, how on earth does one stretch a decision on union handbilling into a broad constitutionally-approved climate for Presidential infallibility?

One way, of course, is to cut and paste from whatever source one can find, whether it has any applicability or not.

It is worth noting, by the way, that the Supreme Court subsequently struck down the ruling of the appeals court in this particular case, saying in essence that because personal confrontation took place between the handbillers and the mall shoppers, the handbilling fell under statutes prohibiting coercion and was therefore not protected by the free speech clause of the Constitution. It rejected the appeals court's citation of NLRB v. Catholic Bishop of Chicago.

In other words, the ruling which the memo quotes as justification that "criminal statues are not read as infringing on the President's ultimate authority in these areas" (the conduct of war), was overturned by the Supreme Court.

I don't have time to look at all the other citations—blogging doesn't pay my bills. Nor is there space here to go into all of them, and I'm not sure the rulings are all available on the net. I wish someone with better qualifications than mine, and better access to legal resources, would do so, however.

In a nutshell, then, the memo seems to opine that as the top military commander of the nation, the President may do pretty much whatever he wants to do. I suspect most Americans were not aware of that, and would, like myself, take exception to it. The underlying assumption is that (1) a state of war exists; and that (2) the President's actions are undertaken for the defense of the country.

Why did we need a war with Iraq, then? Because it appears to give George W. Bush the right to say, "I'm a war president." Because when we are at war, he is the Commander-in-Chief of the nation's military, with broad powers to do as he wishes.

Moreover, if there is no constitutional limit on his behavior, it appears to me that he can't be impeached for anything he does as Commander-in-Chief (other than, perhaps, outright treason). Even more potentially frightening, it may be legal for others to carry out his direct orders, whatever they may be—especially if he has put them in writing, as the memo suggests.

Richard Nixon tried the argument that "I'm the President; therefore whatever I do is okay," and it didn't fly. But we weren't at war then. Bush's handlers learned their lesson.

We laughed when he said, "I'm a war president" on Meet the Press. He may be having the last laugh.

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