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

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.

# posted by

Thomas : 5:32 PM

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# posted by

37383938393839383938383 : 5:36 PM

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.

# posted by

37383938393839383938383 : 5:37 PM

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.

# posted by

Richard : 8:34 PM

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.

# posted by

Atiyah : 7:06 AM

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?

# posted by

Anonymous : 10:36 AM

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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