Daily Wisdom

January 31, 2006

Presidential Authority

The President of the United States (POTUS) takes an oath of office which says...

I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

When enlisting, military personnel take a similar oath...

I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.

Along with the responsibility to defend the Constitution comes authority. The Constitution appoints the POTUS as Commander-in-Chief (C-i-C) of the military. As C-i-C, the POTUS is empowered to "defend the Constitution" implicitly... "against all enemies foreign and domestic".

So what is this Constitution that the POTUS and the military are to defend? A document? A piece of paper? Clearly not. The Constitution is more than a document, it is an idea. It is an organizing principle. It is a basis for governing. It is a blueprint for a nation. It is a way of life. It is in fact, that which "constitutes" America itself.

The Preamble to the Constitution reads...

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

When a foreign terrorist organization like Al-Qaeda upsets the "domestic Tranquility" by hi-jacking airplanes and flying them into buildings killing thousands of Americans, the Constitution provides "for the common defence" by authorizing the POTUS to act as C-i-C to direct military forces as required to eliminate the threat. When a foreign power is suspected of harboring terrorists and weapons of mass destruction, which might reasonably be used against Americans, the Constitution fairly cries out that steps be taken to "INSURE domestic Tranquility".

Of course, the entire government in all of its branches must work in unison to "insure domestic Tranquility". Congress must pass laws like the Patriot Act, that allow our enemies to be discovered and thwarted. The Judiciary must uphold those laws which the Congress passes, as well as the constitutional authority granted to the President. To do less, in my opinion, is an act of treason.

The POTUS however, plays a unique role as C-i-C during a time of war. He can conduct surveillance (including warrantless surveillance) on foreign powers and terrorists. This constitutional authority has been accepted as a matter of course by every President since George Washington. Robert Turner, in an excellent article on this subject Here, reminds us that the three branches of government are separate and co-equal, and that no law passed by Congress (including FISA) can limit the constitutional authority of another branch...

Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that "the president does have that authority" and noted "FISA could not encroach on the president's constitutional power.

The President's constitutional authority to conduct warrantless surveillance on foreign powers and terrorists is not limited to electronic data-gathering (i.e., wire-taps), but extends to all forms of information including aerial reconnaissance, satellite imagery, human intelligence, interrogation of prisoners, and physical searches and seizures.

Does this mean that we should practice torture on prisoners to extract vital information? Absolutely not. And the stated policy of the U.S. military excludes torture from its interrogation procedures. But we must recognize that discomfort, hazing or psychological tactics does not constitute torture.

In a time of war, obtaining intelligence about the enemy is crucial to victory. Those who would try to deny our C-i-C the constitutional authority to do so, are at best on shaky legal ground, and at worst... border on treason.

UPDATE: For an excellent analysis which completely supports my point of view, go Here.

17 Comments:

At 1/31/2006 5:54 PM , Blogger cranky old fart said...

I hear you and will respond to this post more fully when I have time. But it really doesn't answer my earlier comment, does it?

 
At 1/31/2006 6:35 PM , Blogger Hawkeye® said...

Cranky,
Not directly, but if you caught my drift, I said in effect...

If President Bush made some kind of snide remark (as you suggest) that he was going to do what he wanted to anyway, then I believe what he was inferring was that he will continue to do anything that lies within his constitutional jurisdiction, and NO law passed by Congress can trump that constitutional authority.

 
At 1/31/2006 6:40 PM , Blogger Hawkeye® said...

Cranky,
P.S.-- If you read the article I linked to, then you would see that Jimmy Carter reserved the same right for himself when the FISA law was first passed, and Bill Clinton did likewise when amendments to FISA were passed. They said in other words, even though I'm signing this bill I'm not bound by it. GWB is in good company eh?

 
At 2/01/2006 12:30 AM , Blogger camojack said...

Hawkeye®:
I would scarcely call Carter and/or Clinton "good company".

Never, in fact...

 
At 2/01/2006 10:02 AM , Blogger cranky old fart said...

I was referring to my torture comment. I've left another one at that post.

As for this post, well, we just disagree as to GWB's abuse of Congress's co-equal power.

It appears to me that an executive that claims to possess any power he decides to claim, is potentially very dangerous. Especially under the cover of perpetual war.

 
At 2/01/2006 10:35 AM , Blogger RAM said...

Hey Old Fart, I have more problem with the "liberties" Clinton took with his interns and subordinants.
He seemed to think he could do whatever he wanted and I didn't hear a peep from Dism then!

How about stealing White House property or destroying equiptment when he and his "co-president" left?

If I had my "druthers", I would change outgoing Presidents from pardoning criminals like Marc Rich.

BTW, I don't consider Gerald Ford's pardon of Nixon in the same category. He was simply trying to protect the office of the Presidency from shame.

Which is something Clinton almost destroyed. Hillary would like to finish the job, but with her recent actions, and then last night her and the Dims standing and clapping about not doing ANYTHING about social security reform, if Americans have a ounce of sense, Dims will go down in flames again in 2006!

 
At 2/01/2006 11:18 AM , Blogger cranky old fart said...

Ram,

I'll never understand the RW need to impeach someone over blowjobs, while giving torture and profiteering a pass. But hey, that's just me.

 
At 2/01/2006 1:49 PM , Blogger Hawkeye® said...

Camo,
I know... that was a sarcastic remark (:D)

 
At 2/01/2006 5:45 PM , Anonymous Amy Proctor said...

Clinton was impeached because he lied under oath. Would it have been better if he'd lied under oath about something else? I hear from fellow Democrats that Clinton is an "unusually good liar." That is his legacy.

 
At 2/01/2006 5:46 PM , Anonymous Amy Proctor said...

I would also suggest that it is the liberal lack of understanding matters of morality that leads to most of the trouble in our country.

 
At 2/02/2006 8:23 AM , Blogger Hawkeye® said...

Amy,
Great points both. I'm with you 100% on the morality issue. It's apparent that those who lean to the left also lean toward things which the Bible considers perverse, immoral or sinful.

No wonder they hate the Christian Right. They want a world that is free from any reminders of religion so that they can practice their abominations without feelings of guilt.

Regards...

 
At 2/02/2006 10:00 AM , Blogger cranky old fart said...

Ok, ya got me, he LIED about a blowjob. Sheesh. I'm so glad we thoroughly rooted out that treasonous behaviour before it led to, I don't know, wholesale intercourse! Tax dollars well spent indeed!

I think you missed the point.

 
At 2/02/2006 10:27 PM , Anonymous R.A.M. said...

cranky old brain fart:

Obviously it is YOU, who completely misses the REAL point!

lol

Hawkeye: I had to post as "other". I am on my other computer and don't remember my password.

The laptop has it in the password manager. ;-)

 
At 2/03/2006 10:15 AM , Blogger cranky old fart said...

Well, ya certainly got me with that one r.a.m.....lol

 
At 2/03/2006 2:29 PM , Blogger Barb said...

Senators and Congress persons swear this oath:
"I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."
From what I have seen lately , many of these oathtakers had their fingers crossed when they were sworn in. Either that , or they simply understand the difference between truth and lies. Hmmmmmm.

 
At 2/04/2006 4:33 PM , Anonymous West Coast Liberal said...

To Hawkeye:
I have a profound and visceral hatred for the Christian right in this country.

If you were to compare evangelical Christian leadership (Falwell, Robertson, Dobson) in this country to that of nations in Asia, you will see a clear difference.

There is no less of a desire on the part of evangelical missionaries in Cambodia, Vietnam and Indonesia to spread the gospel. However, unlike the hypocritical Christian leaders in America, these missionaries are all about the bible, personal relationships with God, and doing what is right in the eyes of God.

These upright and righteous individuals have no interest in getting involved in any sort of politics whatsoever, unlike the hypocritical Christian right in this country that constantly holds rallies to support certain politicians. These missionaries do not get into the sort of name-calling political crap that evangelicals in this country so embrace.

These missionaries in Asia are also more interested in making people aware of the word of God and not creative mega churches with comfy seats and superior sound systems.

These missionaries in Asia frankly do not give a shit about who is in charge of the country cos they are aware that the road to heaven does not pass through a voting booth. Contrast that with the crazy evangelicals in this country who clutch their bibles while scrambling to vote for candidates that obviously pander to their interests in the hopes of earning a few votes.

The evangelical missionaries in Asia are not interested in demonizing Islam or any other religion cos at the end of the day, it's not as if we are judged by God on what we said or did not say about Islam or any other religion.

Last but not least, the Christians in Asia do not focus on the inconsequential things that evangelicals in this country so love to do, e.g. spelling "Jesus" with a capital "J", spelling "Christmas" instead of "Xmas".

The evangelical right, with its attitude of intolerance and bigotry, rightfully deserves criticism that it gets.

Forget about criticism from liberals in this country. Even if every liberal in thi country disappeared from the face of this planet, the American evengelical right will still receive, and rightfully so, a ton of criticism from people from outside this country.

 
At 2/04/2006 10:42 PM , Blogger Hawkeye® said...

WCL,
Good for you.

 

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