The Conservative Case for President Bush's Exercise of Presidential Powers: Why It Fails to Convince, and Ignores Mainstream View on the Constitution

By JOHN W. DEAN
Friday, May. 05, 2006

For some time, I have wondered how the best and brightest of the young lawyers of the Bush/Cheney Administration manage to remain untroubled by the conspicuous lawlessness inherent in the policies they embrace and promote, regarding matters such as indefinitely imprisoning enemy combatants, torture, and warrantless wiretapping - to name only the most conspicuous. Recently, I had an opportunity - in a public setting - to learn more about the nature of their thinking firsthand.

On April 25, 2006 the Center on Law & Security of the New York University School of Law held a conference entitled "Presidential Powers: An American Debate." I had the pleasure of opening the conference as the keynote speaker, with a front row seat to listen to the four panels of distinguished scholars during the day that followed.

The panels were well-balanced, each containing representatives of both sides of the political spectrum. Nevertheless, the panelists' observations throughout the day were close to unanimous in finding that the Bush/Cheney Administration has expanded presidential powers beyond prior limits of propriety.

The final panel of the day was very representative of the conference. I'll focus on the views of two speakers from that session - whose remarks I found illustrative of the respective points of view. The latter speaker's comments may be especially notable, for they are the thoughts of a young lawyer who is, in the main, a Bush defender.

Anthony Lewis On Bush's Exercise Of Presidential Powers

Former New York Times reporter and columnist Anthony Lewis addressed Bush and Cheney's "unrestrained presidential power" by noting that "President Bush and his lawyers argue that he can do what he wants [even] in fields where Congress has explicitly pre-empted the process." As examples, Lewis mentioned Bush's refusal to comply with the Foreign Intelligence Surveillance Act, which Congress in 1978 made the "exclusive means" by which such intelligence can be gathered; Bush's contention that the laws (treaties and statutes) prohibiting torture do not apply to his presidency; and most striking, Bush's claim that he can "have American citizens arrested on suspicion of a connection with terrorism, and held indefinitely in solitary confinement, without a trial and without access to a lawyer."

Lewis believes "the menace of unrestrained presidential power is greater today more tenacious[]" than when President Truman sought to seize the American steel mills in 1952, to prevent a strike that could hamper the ability to protect American interests in the Korean War. He deemed Bush's actions more troubling than Truman's because unlike the Korean War - indeed, all previous wars -- the war on terror has no end. "So the power successfully claimed by Bush today," Lewis pointed out, "will be available to Presidents for an indefinite time."

Singling out one of Bush's lawyers, Professor John Yoo, Lewis described his recent book The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, as "preposterous" in its claim "that the framers of our Constitution did not have the President in mind when they embraced the idea of the separation of powers." During the Truman years, Lewis noted, such legal arguments, when offered by the government, were dismissed by federal courts as "grotesque"; today, however, Lewis remarked, making such arguments "has become an industry" with conservative lawyers.

Lewis reminded all of Justice Jackson's admonition in the Court's ruling rejecting Truman's power grab in Youngstown: "With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations."

While Anthony Lewis falls left of center on many issues, his views were rather mainstream and centrists on the issue of presidential powers. Indeed, at the conference, they were the consensus position of the day.

Who Is Patrick Philbin?

Responding to Lewis's position was a former Bush/Cheney Administration attorney, Patrick Philbin, whom I was most interested in hearing speak.

Philbin was a law clerk for Judge Laurence Silberman of the District of Columbia Circuit Court of Appeals, and for Justice Clarence Thomas. The lanky, sober-faced young lawyer found himself on the defensive at the NYU conference, but he has been there before. Indeed, I thought it commendable that he reportedly made efforts to rein in the quietly ruthless David Addington, Vice President Dick Cheney's top aide: According to The Washington Post, Philbin's efforts resulted in Addington's successfully blocking Philbin's appointment to be deputy solicitor general, even though Attorney General Alberto Gonzales wanted Philbin in that role.

Philbin served as a Deputy Assistant Attorney General in the Office of Legal Counsel. While there, he sent a number of memoranda to then White House Counsel Alberto Gonzales regarding the establishment of military commissions, the purported lack of federal court jurisdiction over Guantanamo, and other matters relating to dealing with purported terrorists. Philbin's work is among the infamous "Torture Papers" assembled by Karen Greenberg.

While only a few of Philbin's memos have been made public, The New York Times, looked at a November 6, 2001 memorandum in which he claimed the President had "inherent authority" as commander in chief to establish military commissions. The reporter found that Philbin had relied on the authority of Ex Parte Quirin, the 1942 Supreme Court ruling upholding President Franklin Roosevelt's decision to try eight Nazi saboteurs by a military commission - and a holding not considered among the finest of the High Court. According to news accounts, Philbin also argued that trying detainees for violations of the laws of war did "not mean that terrorists will receive protections of the Geneva Conventions."

Philbin On Bush's Presidential Powers

Philbin saw his role at the conference "to be the right-winger." And sure enough, there was little the Bush/Cheney Administration had undertaken that he found out of the ordinary; rather, he deemed the current situation as exemplifying just the "sort of crises that the framers [of the Constitution] expected."

Philbin believes that our nation's founders had planned for situations not unlike the war against terrorists, and he feels that "things are generally functioning the way [planned] within the Constitutional framework." Contrary to the Cassandras at the conference, Philbin believes that the "checks and balances are operating and can address any imbalance that might arise from the current national security crisis."

While Philbin finds nothing out of constitutional order, he does concede that the current national security crisis -- terrorism -- has resulted in an unprecedented focus on the powers of the president as commander in chief. Nonetheless, in his view, this is all covered by the Constitution: Philbin seems to simply take for granted that the president has the powers he is now exercising.

Philbin does make a distinction, however, between the current "war on terrorism" and past wars. In World War I and II, Korea, and Vietnam, presidents commanded "big armies in the field" under declarations of war. Today, though we have a "state of armed conflict with al-Qaeda an organization capable of killing more people on [the] mainland United States than have been killed since the Civil War, and [in] any sort of foreign attack," Philbin explains that "because it is not a war that involves large armies in the filed, but a secretive foe that operates by stealth," this "is mostly a war that relies on intelligence."

Drawing on his government experience, he said, "I don't think that people realize that people in the government, every day, every week, they are presented with the threat information showing that every day there's a group of people out there who are very intelligent, very highly motivated, very skillful, who are staying up late and getting up early figuring out the best way to kill 100, 1,000, 10,000 if they can pull it off, Americans."

This reality, according to Philbin, "puts a lot of focus on the meaning of the Commander in Chief Clause." Because unlike foreign wars, now the commander in chief is face to face with the enemy here in the United States, Philbin argues that prior examinations of presidential powers have been in relationship to foreign wars, where dealing with the enemy is "one step, two steps, three steps, removed." With the war on terror, he says, the president must "directly engage[e] with the enemy." And the activities that Bush has taken - surveillance, interrogation (read: torture) and detention - all relate to "directly engaging with the enemy."

Finally, Philbin claimed that, contrary to all the hand-wringing at the conference and elsewhere, we are not "on the brink of the extinction of civil liberties."

Assessing Philbin's Position: Why It's Strikingly Weak

I took rather copious notes during Philbin's presentation. But I could barely believe what I had written down, so I requested a transcript. And sure enough, his contentions are just as weak as I have summarized them.

To begin, the fundamental claim that Bush and Cheney are toeing the Constitutional line is absurd. While this may be standard constitutional law as understood from the point of view of the Federalist Society and scholars like John Yoo, it is anything but the consensus understanding among experts in the field of separation of powers that the President, as Commander In Chief, has unlimited powers in any war, be it domestic or foreign. And notwithstanding Philbin's claims that this is all as the founders saw it, they made no such distinction.

Credit must be given Philbin for not claiming, as most conservative scholars do, that the war of terror confronts the nation (and the president) with extraordinary and unparalleled dangers - dangers so rare and unusually grave that they justify exercising unprecedented (indeed, previously nonexistent) constitutional powers. That is a flawed argument -- and Philbin seems to recognize it. As awful as acts of terrorism may be, in the larger context, a greater number of Americans are still threatened by deadly consequences from drowning, industrial accidents, drunk drivers, and myriad medical diseases than by an act of a terrorist.

The argument that claims that the scope of presidential powers varies, based on whether the enemy is on American versus foreign soil, is one I had never heard. Aside from the fact that the Constitution makes no such distinction, history has failed to draw such a fine distinction. For example, we had a foreign invasion with the War of 1812, and more recently, communists operated "cells" with the United States throughout the Cold War. Yet no one argued these situations created special powers for the Commander in Chief.

He utterly fails to make a persuasive argument that civil liberties are not threatened by Bush and Cheney. Indeed, it is not possible to make such an argument, simple declarative statements to the contrary notwithstanding.

In sum, Patrick Philbin's arguments were remarkably feeble. Listening to his sincere presentation, however, I did not doubt that he truly believes the tendentious gibberish that the right wingers have glommed onto to justify and rationalize their activities. Still, I wondered if one day Patrick will look back on his views the way many of those involved with the internment of Japanese American during World War II have done - and regretted to their dying day their misguided zealotry.


John W. Dean, a FindLaw columnist, is a former counsel to the President.

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