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.

Saturday, January 27, 2007

Public servant v. Military Commander

(updated below)

Garry Wills has an Op-Ed in the New York Times this morning criticizing the practice of constantly referring to the President as the "Commander-in-Chief":

The word has become a synonym for “president.” It is said that we “elect a commander in chief.” It is asked whether this or that candidate is “worthy to be our commander in chief.”

But the president is not our commander in chief. He certainly is not mine. I am not in the Army. . . .

The glorification of the president as a war leader is registered in numerous and substantial executive aggrandizements; but it is symbolized in other ways that, while small in themselves, dispose the citizenry to accept those aggrandizements.

Wills recounts that Dwight Eisenhower, "a real general," would not exchange salutes while President, because saluting was for those in the military, not civilian Presidents. The practice of presidential saluting was begun by Ronald Reagan, who -- like our current President -- loved ceremonial displays of warrior courage and military power even though (more likely: because) he had none in his real history.

The point Wills makes is an important one, but like most politically insightful points, my first exposure to this insight was in the blogosphere. Back in January, 2006, as part of its "reporting" on the NSA scandal, Newsweek's Evan Thomas and Daniel Klaidman labeled objections over President Bush's illegal eavesdropping program as "histrionics," and pronounced that "the debate was narrow and somewhat vacuous." After all, this was all that had happened with the NSA scandal:

The message to White House lawyers from their commander in chief, recalls one who was deeply involved at the time, was clear enough: find a way to exercise the full panoply of powers granted the president by Congress and the Constitution.

In response, Digby wrote (emphasis in original):

First of all, I'm sick of this bullshit about the president being the commander in chief all the time. This isn't a military dictatorship. Citizens, and even lawyers in the Justice department, don't have a commander in chief. We have a president. I know that's not as glamorous or as, like, totally awesome, but that is what it is. A civilian, elected official who functions as the commander in chief of the armed forces.

It was Digby's post which led me to include a passage on this topic in How Would a Patriot Act? (p. 84), and to note specifically that this was not some stylistic preference but a matter of constitutional division of powers:

Moreover, while President Bush's supporters are fond of referring to him as the "commander in chief" -- typically to insinuate that he should be beyond criticism or that his authority cannot be questioned, particularly in "times of war" -- the president under our system of government holds that position only with regard to those in the armed forces (see Article II, Section 2 of the Constitution: "The president shall be Commander in Chief of the Army and Navy of the United States"). With regard to Americans generally, the president is not our "commander" but instead our elected public servant, subject to the mandates of the law like every other citizen and subordinate to the will of the people.

This is much more than semantics. The constant, improper references to President Bush as "Commander-in-Chief" -- rather than what Theodore Roosevelt called "merely the most important among a large number of public servants" -- pervades the media and shapes how it talks about the President in all sorts of destructive ways. Just look at the January, 2006 Newsweek article on the NSA scandal to see the sickness that infects the perspective of those who see the President as the Supreme Military Leader.

According to Newsweek back then, there was nothing to be concerned about with regard to the President's lawbreaking and secret eavesdropping. Illegal eavesdropping was merely the by-product of a President "determined to stand tall in the war on terror" because he faced "a mortal yet invisible enemy." And Bush was doing what any Commander-in-Chief worth his salt would do: "a president will almost always choose to violate individual rights over the risk of losing a war." And what was the real worry which Evans and Klaidman had concerning the "histrionics" over the lawless NSA program? This:

The American public may be less than sympathetic to the targets of the Bush antiterror crackdown. But if the administration is shown to have violated the civil liberties of mainstream peace groups or (heaven forbid!) members of the press, the outcry could produce an overreaction. After the reformers got through with the intelligence community post-Watergate, Richard Nixon acerbically commented, "They cut the balls off the CIA." He was not entirely exaggerating.

These are journalists writing for one of our country's leading news magazines and they were mocking the concern that the Commander-in-Chief might abuse his secret and unlawful eavesdropping powers to spy on journalists ("heaven forbid!") . What the President ordered was merely an "antiterror crackdown" and the Commander-in-Chief was using all of his powers to protect the nation during War, as any good Commander does.

And, said Newsweek, if it did occur that the Commander abused his powers by eavesdropping on journalists and political opponents (and, just incidentally, we still don't know how the Bush administration used these secret eavesdropping powers, but one hopes we will be finding out soon), then their concern was not that it would constitute a grave abuse of power or threat to press freedoms. Instead, they were worried that such a revelation would "produce an overreaction" -- like the Watergate revelations did -- and take away too much of the Commander-in-Chief's powers.

These are journalists who lament Watergate -- not the break-in or the cover-up, but the revelations of that conduct -- because they "cut the balls off" the Commander-in-Chief (through emasculating measures such as oversight and the rule of law). That mindset -- President as War Commander -- leads directly to this, from Newsweek's Thomas and Klaidman:

The talk at the White House in the days and weeks after 9/11 was all about suitcase nukes and germ warfare and surprise decapitation strikes. . . .

Such chilling sights are not likely to inspire thoughtful ruminations about the separation of powers or the true meaning of the Fourth Amendment's ban on unreasonable searches and seizures. The message to White House lawyers from their commander in chief, recalls one who was deeply involved at the time, was clear enough: find a way to exercise the full panoply of powers granted the president by Congress and the Constitution. If that meant pushing the boundaries of the law, so be it. . . .

The Bush administration did not throw away the Bill of Rights in the months and years that followed; indeed, NEWSWEEK has learned, ferocious behind-the-scenes infighting stalled for a time the administration's ambitious program of electronic spying on U.S. citizens at home and abroad.

See, when you're the Commander-in-Chief, you can't afford "thoughtful ruminations about the separation of powers or the true meaning of the Fourth Amendment's ban on unreasonable searches and seizures." Lofty concepts like the "Constitution" and the "law" might be fine for effete law professors and whiny "histrionic" liberals to prattle on about, but a Commander-in-Chief -- "determined to stand tall in the war on terror" -- doesn't have time for those things, and that's understandable. He has a War to win, and he is therefore above such petty constraints. War is hell and all of that, and the Commander-in-Chief is our Leader in War.

Right after I read Wills' Op-Ed this morning, I just happened to read this article from Jonah Goldberg, expressing horror that Democrats did not stand and cheer loudly or frequently enough during the State of the Union, when the Leader -- to use Jules Crittenden's immortal words -- "address[ed] us . . . and show[ed] us the way forward." Jonah wrote:

But it is revealing. Indeed, the Democratic party's most honest moment Tuesday night came not in Webb's brusque words but in the Democrats' brusquer body language.

The president asserted that no one wants failure in Iraq. Understandably, the commander in chief wanted to avoid conceding how very real a possibility failure is, so he chose his rhetoric carefully. He spoke in the abstract about the bipartisan desire for victory and success.

And yet the Democrats for the most part sat on their hands, refusing to applaud, never mind rise in favor of such statements from a wartime president.

What kind of Americans don't "rise in favor" and cheer when their glorious Commander-in-Chief gives a war cry? To find the answer, let's turn the floor over again to Theodore Roosevelt, who apparently had some sort of future-travelling ability that enabled him to see and hear the Bush movement. Roosevelt, writing in the middle of a war, wrote:

[The President] should be supported or opposed exactly to the degree which is warranted by his good conduct or bad conduct, his efficiency or inefficiency in rendering loyal, able, and disinterested service to the Nation as a whole.

Therefore it is absolutely necessary that there should be full liberty to tell the truth about his acts, and this means that it is exactly necessary to blame him when he does wrong as to praise him when he does right. Any other attitude in an American citizen is both base and servile.

To announce that there must be no criticism of the President, or that we are to stand by the President, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public.

In describing what he found "base and servile" -- not to mention "morally treasonable" and "unpatriotic" -- Roosevelt used words almost identical to those used by Jonah. Roosevelt said it was "base and servile" for someone "to announce that . . . we are to stand by the President, right or wrong." Jonah chided Democrats for failing to "rise in favor of such statements from a wartime president." Base. Servile. Unpatriotic. Morally Treasonable.

Most media flaws are so fundamental and systemic that they will take a long time to resolve, if they can be at all. But one quick, easy and critical step would be to cease speaking of the elected civilian President as our military Commander and instead treat him as the public servant that he is. There is no obligation or duty to support the President, fully including matters relating to war. Quite the contrary: he "should be supported or opposed exactly to the degree which is warranted by his good conduct or bad conduct, his efficiency or inefficiency in rendering loyal, able, and disinterested service to the Nation as a whole."

UPDATE: Jim Henley writes that he was posting about the improper references to the President as "Commader-in-Chief" all the way back in 2002, when virtually the entire country was paying homage to the President as monarch. And indeed Henley did make that point (emphasis in original):

The President is not “our Commander-in-Chief.” He is Commander-in-Chief of the armed forces. (You can look it up.) . . . If you ain’t in the uniformed services or the active duty militia, you ain’t got a commander-in-chief. It’s a republican thing, with a small ‘r.’

The very best kind.

By pointing to Digby's post, I was, of course, merely identifying the first time I read someone making this point, not purporting to identify the First Time Ever that it was made in the Whole World, though the fact that Henley was pointing this out as far back as 2002 only serves to bolster my claim that the "most politically insightful points" are typically found first in the blogosphere (though Henley has to then go ruin that point by admitting that he first encountered it in a 1991 book review in The New York Review of Books, also by Garry Wills, but that was The Pre-Blog Era).

Whatever its origins, this point is sufficiently clear, and it seems like a straightforward enough proposition that national journalists should have no difficulty ingesting it and adhereing to it.

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