Monday, June 12, 2006
Activist NeoConservatives. How to Corrupt "Original Intent" to mean anything you want it to mean. In this case to Create King George W.
By Charlie Savage | June 11, 2006
SINCE THE TERRORIST ATTACKS of Sept. 11, 2001, the Bush administration has made sweeping claims about the power the Constitution gives the president as ``commander in chief." Because the president is responsible for protecting national security, the administration has argued, Congress cannot restrict his powers in a time of war.
President Bush hasn't been shy about putting his philosophy into action. In a series of ``signing statements," Bush has claimed that he has the authority to disobey several recent laws passed by Congress, including a ban on torturing detainees and oversight provisions in the USA Patriot Act. Nor has the president limited his opposition to laws passed on his watch; Bush has also authorized the military to wiretap Americans' international phone calls without warrants, defying a 1978 law, the Foreign Intelligence Surveillance Act, or FISA.
To make his case for these broadened powers, Bush and his administration have fallen back on a familiar strategy: pointing to the Constitution and looking to the founders as a guide to its meaning. This ``originalist" approach has been a hallmark of the Bush White House, informing everything from its taste in judges to its opposition to abortion. Relying on a tried and true method of divining the original intent of the Founding Fathers-reading the Federalist Papers, the essays written in 1787 and 1788 by three of the founders to explain the meaning of the Constitution-the administration asserts that it is using executive power as the founders intended.
Yet scholars from across the political spectrum question the historical cases Bush and Vice President Dick Cheney have made. In an effort to find backing for their view of presidential power, these scholars argue, the administration has quoted selectively, taken passages out of context, and simply ignored what many constitutional scholars say is the Federalist Paper that most squarely addresses the president's wartime powers: Federalist 69.
Richard Epstein, a conservative law professor at the University of Chicago who embraces originalism, said Federalist 69 shows that the administration's legal theory is ``just wrong" and called its failure to acknowledge the paper ``scandalous."
``How can you not talk about Federalist 69?" he said. ``All you have to do is go on Google and put in `Federalist Papers' and `commander in chief' and it pops up."
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The administration's historical case has emerged gradually. Last December, after Bush's warrantless surveillance program was exposed, Cheney explained in a rare session with reporters why he believed the president could bypass FISA. The vice president argued that Congress had gone too far after the Watergate scandal when it passed a series of laws-the warrant statute among them-that sought to limit the president's powers. For a broader explanation of the legal underpinnings of his argument, Cheney referred reporters to a 1987 report about the Iran-Contra scandal, one he'd had a leading hand in producing when he was a Republican congressman.
In the Iran-Contra scandal, officials in President Reagan's administration violated a law cutting off funds to anti-Marxist rebels in Nicaragua. Yet many Republicans argued at the time that the law itself was unconstitutional, as it infringed on the president's prerogative to run foreign affairs and national security. Cheney was among those defenders. When Congress issued a report concluding that a ``cabal of zealots" had broken the law, Cheney oversaw a dissenting report that instead faulted Congress for passing unconstitutional legislation.
``Judgments about the Iran-Contra affair ultimately must rest upon one's views about the proper roles of Congress and the president in foreign policy," Cheney's report said. ``The fundamental law of the land is the Constitution. Unconstitutional statutes violate the rule of law every bit as much as do willful violations of constitutional statutes."
A month after Cheney suggested looking up his old Iran-Contra report, the Bush Justice Department issued a 42-page legal memo defending Bush's warrantless spying program and echoing the legal arguments in Cheney's report. Both Cheney's report and the Justice Department's spying memo argue that the Constitution puts the commander in chief beyond the reach of Congress in matters of national security.
Like the Cheney report, the spying memo cites fragments of sentences from several Federalist papers. Both, for example, point to Federalist 70's discussion of how the executive will be able to act with ``decision, activity, secrecy, and dispatch," especially ``in a time of war [when] the energy of the executive is the bulwark of the national security."
Neither Cheney's report nor the spying memo, however, mention that the point of Federalist 70 was to explain why the founders decided to put just one president atop the executive branch instead of a council. The essay says nothing about limiting the power of Congress to pass laws regulating how the executive branch carries out its responsibilities for protecting national security-a power the Constitution gives Congress in Article I.
And then there is the omission of Federalist 69. ``These documents, shockingly, do not even alert the reader to the existence of the powerfully contrary language and reasoning of what is universally agreed to be the most relevant of the Federalist Papers on the powers of the commander in chief-that is, Federalist 69," said Harvard law professor Laurence Tribe.
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Alexander Hamilton, wrote Federalist 69 in 1788, as the nation was debating whether to ratify the Constitution. At the time, many Americans feared that the proposed Constitution might concentrate too much power in the president. Having just fought a war to rid themselves of the British king, they did not want to end up with a home-grown dictator.
The Constitution called for the American president, like the British king, to oversee the nation's military. But in Federalist 69, Hamilton explained that the American commander in chief's powers would be subject to strong checks and balances, including submission to regulation by laws passed by Congress. Hamilton describes the commander in chief as ``nothing more" than the ``first general" in the military hierarchy. The commander in chief's powers are ``much inferior" to a king because all the power to declare war and to create and regulate armies is given instead to Congress, he explained.
Some state governors, Hamilton noted, had greater security powers as head of their state militias than the president would. ``It may well be a question whether [the constitutions] of New Hampshire and Massachusetts, in particular, do not...confer larger powers upon their respective governors than could be claimed by a president of the United States."
The Justice Department did not respond to a request that it explain why it failed to acknowledge the existence of Federalist 69 in its memo on warrantless surveillance. But defenders of the Bush-Cheney administration argue that its critics are exaggerating the importance of Federalist 69. They say it is wrong to suggest that it proves that the founders intended the president to be subject to congressional regulations such as FISA.
Douglas Kmiec, a Reagan Justice Department official who is now a Pepperdine University law professor, said that Federalist 69 must be read alongside other Federalist Papers that cut the other way, such as one in which Hamilton wrote that ``energy in the executive ... is essential to the protection of the community against foreign attacks."
Citing similar passages in other Federalist Papers, John Yoo, a former official in the Bush Justice Department, added that Federalist 69 is just one among many records of the founders' thinking, some of which are contradictory or misleading. In his recent book, ``The Powers of War and Peace" (Chicago), Yoo dismissed Federalist 69 as ``rhetorical excess" that exaggerated the difference between a king and a president.
``Fed 69 should not be read for more than what it is worth," Yoo, who is now a Berkeley law professor, wrote in an e-mail. The administration, he added, is ``following the general view of presidents of both parties for many years, since probably [President Franklin Roosevelt]," so its legal reasoning is not ``unserious."
But David Golove, a New York University law professor, said the buildup of executive power in recent generations is ``completely irrelevant" from an originalist perspective. If the proper way to interpret the Constitution is by looking to what the founders intended, he said, then it is Federalist 69, not Franklin Roosevelt's record, that matters. ``The irony is that this administration claims to be originalists," Golove said.
Indeed, even Vice President Cheney may not fully subscribe to this particular originalist argument. At the same session in which he directed reporters to his Iran-Contra report, his comments suggested that the root of the administration's argument for a powerful commander in chief may lie not in the 18th century, but rather very much in the here and now. ``I believe in a strong, robust executive authority," he said, ``and I think the world we live in demands it."
Charlie Savage is a reporter in the Globe's Washington bureau. E-mail firstname.lastname@example.org.