Saturday, 17 March 2007

A view of executive power, 145 years ago

The following are extracts from the book Executive Power, by B. R. Curtis. The book was published in 1862 and I was lucky enough to get my hands on a copy the last time I was in Washington DC.

From the preface:

Extract from President Lincoln’s proclamation of September 22, 1862. … "Understand I raise no objection against it on legal or constitutional or legal grounds; for, as commander-in-chief of the army and navy, in time of war, I suppose I have a right to take any measure which may be best to subdue the enemy." — President Lincoln to the Chicago Delegation.

Pp 24-27:
The framers of the Constitution thought it wise that the powers of the commander-in-chief of the military forces of the United States should be placed in the hands of the chief civil magistrate.

But all the powers of the President are executive merely. He cannot make a law. He cannot repeal one. He can only execute the laws. He can neither make, nor suspend, nor alter them. He cannot even make an article of war. He may govern the army, either by general or special orders, but only in subordination to the Constitution and laws of the United States, and the articles of war enacted by the legislative power.

The time has certainly come when the people of the United States must understand, and must apply those great rules of civil liberty… If they fail to understand and apply them, if they fail to hold every branch of their government steadily to them, who can imagine what is to come out of this great and desperate struggle.

Are the great principles of free government to be used and consumed as means of war? Are we not wise enough and strong enough to carry on this war to a successful military end, without submitting to the loss of any one great principle of liberty. We are strong enough. We are wise enough, if the people and their servants will but understand and observe the just limits of military power.

What, then, are those limits? They are these. There is military law; there is martial law. Military law is that systems of laws enacted by the legislative power for the government of the army and navy of the United States, and of the militia when called into the actual service of the United States. It has no control whatever over any person or any property of any citizen.

But there is also Martial law. What is this? It is the will of a military commander, operating without any restraint, save his judgment, upon the lives, upon the property, upon the entire social and individual condition of all over whom this law extends. But, under the Constitution of the United States, over whom does such law extend?

Will any one be bold enough to say, in view of the history of our ancestors and ourselves, that the President of the United States can extend such law as that over the entire country, or over any defined geographical part thereof, … save in connection with some particular military operations which he is carrying on there? Since Charles I. lost his head, there has been no king in England who could make such law, in that realm. And where is there to be found, in our history, or our constitutions, either State or national, any warrant for saying, that a President of the United States has been empowered by the Constitution to extend martial law over the whole country, and to subject thereby to his military power, every right of every citizen? He has no such authority.

In time of war, a military commander, whether he be the commander-in-chief, or one of his subordinates, must possess and exercise powers both over the persons and the property of citizens which do not exist in times of peace. But he possesses and exercises such powers, not in spite of the Constitution and laws of the United States, or in derogation from their authority, but in virtue thereof and in strict subordination thereto.

The author goes on to say, on page 28, that the military authority that commander holds is restricted to the actual battlefield, the site of war, and not the entire legal territory.

P 29:
He is not the military commander of the citizens of the United States, but of its soldiers.

P 33 (out of 34):
Let the people be right, and no President can long be wrong; nor can he effect any fatal mischief if he should be.

Almost 150 years after the writing of this book, the contents are all the more relevant. The United States faces as unreal a 'war' now as it faced a real and necessary one then. That is, the US is supposedly in a war against terrorism today; it was in a real civil war in the mid-1800s.

Even in a civil war, as the author states, the president is not all-powerful in the ways of law. The wars in Afghanistan and Iraq do not include fighting on American soil or against the United States itself (most other wars have). The "war on terrorism" is even less of a reason for the president to extend his military war powers — which are far from unconditional — onto the people of the United States.

President George W. Bush has shown he does not care what the people of the United States think, unless it has a real political effect on him. Since he is a lame duck and cannot be reelected, Bush has no reason to listen other than to look better in the history books. Bush has himself stated that history will judge him well — a statement many people, myself included, view as utter idiocy.

The broad, overreaching powers of the Bush administration are disturbing, with things like the warrantless wiretapping issue, detention and rendition of untried noncitizens, and other civil liberty-harming areas of the 'war on terror'.

No president, whether a Lincoln, a Truman, or a Bush, is legally supreme. The current president seems to think otherwise with his White House's unfettered expansionist view of presidential authority, and the Bush administration's constant overriding of the checks and balances that the Congress and Supreme Court provide. Bush and Cheney believe in the unitary executive. What is written in the law books is often very different from what actually happens. The US Constitution is a 'just a piece of paper' after all.

Song stuck in my head right now: Flathead by The Fratellis

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