Bush Administration Justifications of Its Illegal Activity

Here's a little more background on what I see as the two primary justifications presented by the Bush administration for their supposed right to ignore the laws of the country and to be exempt from any oversight from any other branch of government.

The two justifications claimed by the administration are:

(1) As a result of the 9/11 attacks and the subsequent Authorization to Use Military Force (AUMF) passed by Congress and granting permission to the administration to invade Afganistan, we are currently in a state of war.

(2) Under Article II of the Constitution, the executive branch has unlimited powers in time of war. These powers are not bound by any of the laws of the country -- even, if I'm not mistaken, by the same Constitution that grants these powers -- and cannot be overseen or checked by either of the other two branches of government (or anyone else, for that matter).

Item (1) has been refuted many times, even by Attorney General Alberto Gonzales (2/6/06): "There was not a war declaration, either in connection with al Qaeda or in Iraq. It was an authorization to use military force." It can and has been argued that we are in a state of undeclared war, but the power to declare war is granted only to the Congress.

(2) Article II, Section 2 famously makes the President "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". Proponents of the theory of the unitary executive take this to mean that the President is vested by the Constitution with unlimited power to command the country, militarily and otherwise, in times of war.

The two main problems with this are first, that Congress has not declared the country to be in a state of war, and second, that the administration claims that an undeclared state of war exists, that it grants the President untrammeled power, and that is a 'Long War' that will last for many decades and perhaps generations into the future.

(It's important to note, by the way, that the President is Commander in Chief only of the armed forces -- not of the members of Congress or any other civilian members of the other branches of government, and certainly not of his civilian citizen-employers.)

I'm not in any way a Constitutional scholar, so I can't unravel or dissect the various legal precedents that support various interpretations of these Article II powers. When all is said and done, it is a simple and popularly appealling argument to say that we have been in some sort of a state of war ever since 9/11, and that the dangers of wartime demand a pragmatic increase of the President's powers.

But even this simply compelling argument has been refuted time and time again in our nation's history, as lengthily documented by Greenwald and other legal scholars.

Here's what one of those scholars wrote in 2004:

"... As Hamilton explained, the President's military authority would be 'much inferior' to that of the British King: 'It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature.' The Federalist No. 69, p. 357."

These words were written by Justice Antonin Scalia, in his opinion in Hamdi v. Rumsfeld, the case brought by the father of an American citizen arrested on orders of the Bush Administration, held incommunicado for two years without being charged with any crime, and ultimately released.

Both quotes in this post are taken from Greenwald's book, "How Would A Patriot Act".