The Madness Of King George: Spying, Now Torture

Now that President Bush has been forced to publicly embrace his self-ordained role as Commander in Chief of the entire U.S., he is much more forthcoming about enumerating the powers of his newly-minted military dictatorship.

From The Boston Globe, via Americablog:

After approving the bill [containing the McCain anti-torture amendment] last Friday, Bush issued a "signing statement" -- an official document in which a president lays out his interpretation of a new law -- declaring that he will view the interrogation limits in the context of his broader powers to protect national security. This means Bush believes he can waive the restrictions, the White House and legal specialists said.

"The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President . . . as Commander in Chief," Bush wrote, adding that this approach "will assist in achieving the shared objective of the Congress and the President . . . of protecting the American people from further terrorist attacks."

I added the bolded emphasis. Essentially what Bush is asserting, again, is that he has the power as Commander in Chief over the entire United States, to ignore or suspend any law he feels might hamper his ability to "protect Americans" from terrorism. Once again, Bush's interpretation of executive power has no justification in the U.S. Constitution.

From Article II, Section II of the Constitution:

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;

This gives Bush the power to command the active military, the National Guard and the Reserves. It does not, in any way, shape or form, give the President the power to command civilians or to ignore laws passed by Congress. Bush's role as Commander in Chief begins and ends with the military and when he asserts that it does not, he is asserting the power of a de facto military dictator.

Further, from Article II, Section III:

[H]e shall take Care that the Laws be faithfully executed;

With regard to the laws passed by Congress, this is the only power the President has. He is required to insure that the laws are faithfully executed. He is certainly never charged with "keeping the people safe", else, again the President would be able to assume a huge array of powers reserved for the Legislative. Neither President Bush, nor any other President, has the power to suspend the laws of the United States without facing the repercussions of his actions.

One example that seems to keep popping up among Bush supporters is Lincoln's suspension of habeas corpus rights during the Civil War. But this example does not fit the Bush paradigm. First, Lincoln was suspending the right as an emergency provision, while the nation was fighting a war on its own soil, in order to preserve the Union. The Civil War was an immediate danger to the Republic and required extraordinary measures. While Bush and his supporters may claim the same danger to the Republic from the "War on Terror", such assertions ring very hollow. As long as the United States remains a nation of civil rights, the risk of terrorist attack is ever-present. It's unrealistic to imagine that all danger from terrorism can be mitigated, especially with a broadly-defined and open-ended war against such. The amorphous threat of terrorism is not sufficient grounds for President Bush to claim extra-legal powers in the manner of Lincoln. The threat of terrorism does not rise to the level of a threat to the Republic, unless, of course, the fear of such allows the executive to claim unlimited power. By doing so, Bush is actually giving Al-Qaida the victory they seek by destroying our way of life.

Back, then, to Lincoln who, by virtue of a law passed by Congress in 1864, was able to legally suspend habeas corpus rights. The Supreme Court would, in 1866, severely restrict this power, but Lincoln's actions were legalized all the same. While the President does have the responsibility to assert extraordinary powers during a national crisis, he certainly cannot grant himself immunity from the consequences of those actions. Whether or not Bush's actions have "kept Americans safe", he knowingly and repeatedly broke the law and unless Congress retroactively changes the FISA law to legalize Bush's behavior, he stands culpable for his actions. Nothing in the Constitution allows the President to escape accountability for breaking the law while in office, even in a time of crisis (Lincoln's assassination left the question moot for his Presidency). Resignation or impeachment is the sacrifice a President is expected to make in such an instance, because our nation and rule of law are more important than the fortunes of one man. Bush and his supporters clearly think that, not only should Bush be allowed to break the law as he sees fit, but he should also escape any culpability for his crimes. Again, that is the very essence of a dictatorship; it raises the acts of one man over the laws that govern the whole country.

Back to the ban on torture:

"Of course the president has the obligation to follow this law, [but] he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case," the official added. "We are not expecting that those two responsibilities will come into conflict, but it's possible that they will."

Once again, the President does not have the authority to ignore the law in the course of conducting his responsibilities as Commander in Chief. The President has no constitutionally-granted authority to act as a second Legislative branch. This is a defining wall between those two branches of government and allowing the President to breach that wall has very grave consequences. If the President is allowed to ignore the FISA Act and then ignore the torture ban, what next? How far beyond the law is it acceptable for the President to go, once domestic spying and torture are allowed?

Whenever Bush apologists are approached with questions about his fascist tendencies of late, the answer is always the same: "It can't happen here. Liberals are just over-reacting." Are we? Because if the President is asserting the power to ignore the law in order to combat terrorism, then it already has happened here.