Balkinization  

Sunday, July 31, 2005

All Hail King Bush, God's Captain and Leader of His People

Brian Tamanaha

The 1628 session of the English House of Commons was occupied with debates over the king's claimed martial power to imprison people outside of ordinary legal processes as the king deemed necessary in defense of the state. The king's Secretary gave the following justification:

There is no man but desires to live under the law, and we all hold the common law our inheritance that does preserve us. We are in the government of a state. The martial law touches kings highly. It is their very original. They are God's captains and leaders of his people. The name of kings is sacred, and the foundation of the commonwealth depends on them. All civil government may pass well and have a happy success. And for arms and conducting of armies, it can admit of no formal law.

Four Centuries later, the Bush Administration has offered much the same argument: we are a nation under laws, but in his global war on terror Bush exercises authority above the law.

Sir Edward Coke's short answer to this argument, as sound then as it is now, was that England is a nation of laws. Either we abide by the rule of law, or we don't.

Comments:

I haven't seen the Bush administration--or anyone else, for that matter--make anything like the argument Brian describes here.

I have seen arguments that the constitution (or, the constitution together with the congressional authorizing resolutions) provides the president--this president and all others--authority sufficient to wage the war we are presently engaged in effectively. But that's an argument quite different from what Brian describes, because it's an argument about what the law provides.
 

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No, you disingenuous bastard, that is not Bush's argument. Bush's argument is that the rule of law includes inherent Executive powers, one of which is to make realtime tactical military decisions. The rule of law also includes the explicit text of the Constitution, which guarantees that the Executive is the Commander-in-Chief. Because military tribunals come within the Commander-in-Chief power, and because detainees who are tried before such tribunals are captured on battlefields pursuant to realtime tactical military decisions, the President has exclusive authority over this domain. That is the rule of law.

Bush has made no argument that the President has powers that put him above the law. He has made one argument and one argument only: that the rule of law includes the very constitutional powers that Democrats seek to deny him of exercise.

Thanks for being a bald-faced liar, Brian.
 

The frightening thing is that Brian, and folks who think like him, actually believe Bush is saying exactly what the king supposedly said in 1628. That is how intellectually paralyzing their hate of Bush has become. Their condition needs a clinical name, I think.
 

For me the only thing more pernicious than the notion that no law applies to the non US Citizens detained on foreign soil (which is not the Bush Administration’s position at any rate) is the notion that the US Constitution’s due process clause can be applied extra-territorially to foreign nationals wherever the US military happened to be in conflict or stationed. America may be a nation of laws but it is not a globe of American laws.

Can one imagine it. The camp-following journalists who make conflict into nightly entertainment will be joined by camp-following third rate American Attorneys in search of an income.

Of course the argument is which law applies not that there is no law covering the detainees. Normative rules are in place - you may not like the scope or their source but they are there. The fact that some of the detainee treatment is characterized as “abuse” or “unauthorized” means ipso facto there are rules.

The US and Western world is dealing with asymmetrical warfare. A high tech gargantuan inefficient (partly by design and party by happenstance) organisation on one side (your Government) facing off against low tech individual franchise terrorists with the extent of the linkages between them not fully known or understood. The US and the West generally is still feeling its way in dealing with this modern threat. The truth is things will go wrong and learning from these mistakes is part of the process. Legislative action has little to contribute. Only politicians and some lawyers are conceited enough to believe that passing a law might restore a reputation.
 

The question for the pro-Bush partisans here would of course be: What are the limits imposed on the President by the "law" on which they (and their more learned fellow travelers, like John Yoo) base the Imperial Presidency argument?

Last time I checked, George Bush (through the power of the Executive to wage war) had taken an American citizen into custody on American soil, declared him an "enemy combatant" (or more properly, an "unperson") who did not have any rights under the law, and argued that the President had the ability to do so, because the United States itself was a front in the Struggle Against Violent Extremism (formerly known as the War on Terror*).

If the President can do that, what exactly can't he do?

*Leaving aside the impossibility of declaring war on a tactic, now that it's a global struggle against a mindset, are we no longer "at war"? So therefore, should Padilla be set free?
 

paperweight, I'm not sure if I'm one of the "pro-Bush partisans" you're referring to (after all, John Yoo is no more learned than I), but I'll take a crack:

The president can't do all sorts of things. He can't nationalize the steel industry, for example.

But the president can use the armed forces of the nation to defend it. He can exercise a portion of the powers that, say, Abraham Lincoln exercised. (You do remember Lincoln, don't you? He's the president who ordered US troops into battle against...US citizens! We all know he should have been impeached for not simply having the Confederacy arrested.)
 

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