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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, June 19, 2006

To all political reporters: Please go read Federalist 69

The Boston Globe's Charlie Savage continues to exemplify how journalists are supposed to investigate and cover stories. Savage is one of the very few journalists who understands and covers one of the most extraordinary political events in our country's history -- the explicit seizure of lawbreaking powers by the President. Savage's latest article documents how contrary Bush's presidential power theories are to the core founding principles of our government as set forth in the Federalist Papers:

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. . . .

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."

The most astonishing aspect of these lawbreaking scandals is how straightforward and easily resolved they are. The administration deliberately invokes all sorts of obfuscating legalisms to cloud the issues, but few things are clearer than the fact that Bush's claim to possess unchecked and unlimited power in the area of national security and terrorism -- a view grounded in the Yoo theory -- is not just a deviation from, but is the very antithesis of, the principal goal of the Constitution's framers: namely, to ensure that there is no such thing as unchecked power in our system of Government, but only power that is constantly restrained and balanced by the other two branches.

Beyond those conceptual issues, Justice Antonin Scalia -- as I discuss at length in my book -- conclusively demonstrated in his opinion in Hamdi v. Rumsfeld, that Federalist 69 by itself precludes Bush's claim that Article II bestows to him unlimited powers to act with regard to all matters concerning national security (including measures taken against U.S. citizens on U.S. soil):

Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. 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.”

Those who claim that Article II somehow vests unrestrained power in the President to act with regard to all national security matters do not ever address this question, because they cannot: how do the powers which they seek to vest in George W. Bush differ from those possessed by the British King? They do not. The whole point of Fedearlist 69 -- and one of the principal points of the Federalist Papers generally -- is to assure worried Americans that the creation of the office of the President would not result in a new King in the area of national security. As Savage reports:

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.

A President who can exercise power with which neither Congress nor the courts can "interfere," and who can exercise those powers even in violation of laws duly enacted by the American people through their Congress, is a President who, by definition, has the powers of a monarch -- the very situation which, as Scalia explains, is what the Founders sought, first and foremost, to avoid. The "idea" that the very Founders who waged war to escape the rule of a King would create a Constitution which creates a new monarch is too frivolous to merit real debate. And Federalist 69, by itself, makes that clear. If any reporters other than Savage have read Federalist 69, there would be more stories informing Americans of how clear that is.

The most tragically hilarious part of Savage's article is the reaction of John Yoo to the claim that he has fundamentally distorted the plain meaning of the Federalist Papers when constructing his President-as-King theories:

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.

So the chief architect of this administration's theories of presidential power thinks that Federalist 69 -- one of the principal documents from the Founders regarding the scope and limits of presidential power -- is mere "rhetorical excess" which ought to be ignored, or at least it ought not "be read for more than it is worth." I supposed Yoo's authoritarian fantasies of the all-powerful One Man Ruler ought to be given more weight than the promises and commitments made by the Founders in order to persuade their fellow citizens to ratify the Constitution.

It should not come as a surprise that the Bush administration's theories of presidential power -- which are guiding how our country is governed and which have spawned abusive scandal after scandal -- relies upon the view that the views of the founders ought to be ignored. Federalist 69 is not all that long. All reporters could read it quickly and understand it easily. Like Savage did, they ought to. Perhaps then they could realize -- and then inform the country -- that the powers claimed by Commander-in-Chief George W. Bush are the very opposite of the core, defining principles of our country.

* * * *

I will be on the Al Franken Show from 1:30-2:00 p.m. EST to discuss How Would a Patriot Act? Tonight, I will be in Philadelphia for a book event, sponsored by Drinking Liberally, beginning at 6:00 p.m., at Higher Grounds Cafe -- 631 North 3rd St., Philadelphia, PA 19123. Tomorrow (Tuesday), I will be in Boston for another Drinking Liberally book event, beginning at 6:00 p.m., at the Middlesex Lounge -- 315 Massachusetts Ave, Cambridge, MA.

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