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.

Thursday, April 13, 2006

Does the debate over Iran matter?

Several weeks ago, I wrote a post about the death of shame in our pundit class, which observed that those who were most spectacularly and disastrously wrong in virtually all of their prognostications regarding Iraq not only refuse to accept any responsibility for their errors, but continue to parade around with the pretense of great wisdom and authority, seeking to dictate to us what our foreign policy choices ought to be, as though they are entitled to ongoing credibility.

Anonymous Liberal has a post up detailing that many of these pundits -- Bill Kristol, Victor Davis Hanson, Charles Krauthammer, Mark Steyn, etc. etc. -- are now in full-on war-monger mode -- again, this time with regard to the latest new Nazi Germany, Iran. The truly pathological passage which A.L. cites from Steyn -- where he urges "swift, massive, devastating force that decapitates the regime" (with no follow-up "touchy-feely nation-building") -- mocks itself. A.L. concludes that we need "some new hawkish pundits," because the current crop is so discredited and lame.

But does it really matter what any of us, pundits included, have to say about Iran? We are all running around engaged in a debate about how best to approach this situation, presumably laboring under the assumption that we are going to collectively decide this democratically, as a nation. But if the war-mongering radicals in the Bush administration convince The President that some sort of surgical strike, military attack or, decapitation assault against Iran is something we ought to do, will the Administration think that it needs any sort of Congressional authorization to engage in whatever war actions it desires? Very doubtful.

What prompted a focus on this issue is an e-mail I received from a reader, Wendell Bell, who asked this: "Will the Bush administration feel it necessary to go to Congress for a new AUMF to start the coming Iran war--or will the existing authorizations, as in so many other respects, be stretched to fit?"

There is simply no question that -- assorted Congressional authorizations to use military force to the side -- the administration believes that the President has the inherent power under Article II to order any military action which can be linked, however broadly or loosely, to a defense of the country against terrorism. To know this, one need only look to the September 25, 2001 Yoo Memorandum, still the official position of the entire executive branch. That memorandum is noted (at least here) most frequently for its concluding proclamation of generally unlimited presidential power, but the bulk of the memorandum is devoted to a discussion of the President's authority to order military force even in the absence of Congressional authorization. Here are some of its preliminary decrees:

Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11. . . .

We conclude that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations, to use military force abroad - especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States. . . .

These powers give the President broad constitutional authority to use military force in response to threats to the national security and foreign policy of the United States.

The administration, of course, sees its powers as being tantamount to those exercised by Abraham Lincoln during the incomparable crisis of the civil war. Hence:

By their terms, these provisions vest full control of the military forces of the United States in the President. The power of the President is at its zenith under the Constitution when the President is directing military operations of the armed forces, because the power of Commander in Chief is assigned solely to the President. It has long been the view of this Office that the Commander-in-Chief Clause is a substantive grant of authority to the President and that the scope of the President's authority to commit the armed forces to combat is very broad. See, e.g., Memorandum for Honorable Charles W. Colson, Special Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The President and the War Power: South Vietnam and the Cambodian Sanctuaries (May 22, 1970) (the "Rehnquist Memo").

The President's complete discretion in exercising the Commander-in-Chief power has also been recognized by the courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court explained that, whether the President "in fulfilling his duties as Commander in Chief" had met with a situation justifying treating the southern States as belligerents and instituting a blockade, was a question "to be decided by him" and which the Court could not question, but must leave to "the political department of the Government to which this power was entrusted."

And anyone who thinks that Congressional authorization is required just because the Constitution vests in Congress the authority to declare war is very confused:

If the Framers had wanted to require congressional consent before the initiation of military hostilities, they knew how to write such provisions. . . .

Given this context, it is clear that Congress's power to declare war does not constrain the President's independent and plenary constitutional authority over the use of military force. . . . .

The centralization of authority in the President alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch.

It goes on and on like that - touting "the centralization of authority in the President alone" in all matters relating to national security.

Just in case anyone is entertaining the idea that the Yoo Memorandum is a quaint and obsolete relic from a time past, the Department of Justice, in defending the President's authority to break our nation's eavesdropping laws, issued a 42-page single-spaced document on January 19, 2006 making clear that the Yoo Memorandum is still the prevailing view in the administration of the President's powers. In it, we learned that nothing can "interfere" with the President's decisions regarding national security:

Because the President has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al Qaeda, FISA would impermissibly interfere with the President’s most solemn constitutional obligation – to defend the United States against foreign attack.

Anything which "the President determine[s is] . . . necessary to the defense of the United States" -- including war on Iran -- is something that cannot be interfered with. Any residual doubts should be nicely dispelled by this:

* The DoJ Letter favorably cites an argument made by Attorney General Black during the Civil War that statutes restricting the President’s actions relating to war "could probably be read as simply providing ‘a recommendation’ that the President could decline to follow at his discretion." (p. 32; emphasis added);

* "[T]he President’s role as sole organ for the Nation in foreign affairs has long been recognized as carrying with it preeminent authority in the field of national security and foreign intelligence." (p. 30);

* The President is the "sole organ for the Nation in foreign affairs" (p. 1);

* "The President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected"), quoting a concurring opinion from radical Executive Branch fanatic Judge Laurence Silberman) (p. 10; emphasis added);

* "[I]t is clear that some presidential authorities in this context are beyond Congress’s ability to regulate" (p. 30);

* "Indeed, ‘in virtue of his rank as head of the forces, [the President] has certain powers and duties with which Congress cannot interfere’") (quoting Attorney General Robert H. Jackson) (p. 10);

* "Among the President’s most basic constitutional duties is the duty to protect the Nation from armed attack" and the "Constitution gives him all necessary authority to fulfill that responsibility." (p. 9);

* the President’s war powers "includes all that is necessary and proper for carrying these powers into execution" (p. 7; citation omitted, emphasis added) -- even in conflicts where no war has been declared by Congress (p. 26).

So we can have all the lofty and vigorous debates we want over whether a military offensive against Iran is desirable, prudent, disastrous, crazy, etc. But ultimately, nothing we think - or our representatives in Congress think - really matters, because these decisions, under this administration, are "for the President alone to make." We could refuse to authorize this military offensive, or even enact legislation banning it, and none of that would matter in the slightest. It's worth remembering that in our country today, the President is the "sole organ" in all such matters, and he has full, limitless, and un-limitable authority to do whatever he wants.

If the administration really resolves internally - whether for political reasons or bloodlust or some crazed Steyn-like beliefs or any combination of those or other motives - to attack Iran, is there any doubt that they will do that no matter how much opposition there is? One thing is clear - they believe they have the power and authority to do that unilaterally, and that they need no further authorization of any kind beyond the President's will.

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