Like hell he can

IN THE NEWS
Let's not act surprised at Vice President Dick Cheney's assertion that he can de-classify any document, under the provisions of an executive order that President Bush signed in 2003. Cheney's statement is perfectly consistent with what the Bush Administration has said about Guantanamo Bay and other executive decisions made since 9/11. The Administration believes that war creates situations that only the executive branch has the authority to handle. Article II, section 2 of the US Constitution contains only 34 words about the President's war powers ("The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States"), but the Bush team has been willing to stuff the justification for everything from warrantless wiretaps to Guantanamo Bay into those few words. If you're shocked, shocked to discover that Cheney wants to stretch Article II, section 2 even further, you just haven't been paying attention.

The only surprising development is the absence of mass demonstrations over a clear subversion of the Constitution. Nothing in the US Constitution says that a state of war nullifies the Constitution itself. The issue is not, as jurists have argued in past decades, the wartime limitations on free speech or other individual liberties of the Bill of Rights. The real question is the separation of powers, the system of overlapping responsibilities that the Framers clearly and deliberately assigned to the different branches of the federal government. In other words, there's never really been a debate over whether a Roman-style dictator is granted emergency powers during war; the Constitution clearly does not allow it. We've managed somehow to get through a Civil War, two World Wars, and the threat of nuclear armageddon without a dictator. Rather than defending the Constitution that somehow saw them through these national emergencies, Americans are watching docilely while the Administration says, Because some terrorists got lucky, the Consitution is now whatever we say it is. Or we just ignore it.

If that doesn't get the average American's blood boiling, how about the craven way in which Cheney exercised his so-called authority? Rather than de-classify a document and present it to the public, the Administration leaked the information to a select group of "friendly" reporters. The Constitution certainly does not grant the executive branch the authority to be sneaky and underhanded in presenting a cassus belli to the American public.

Americans should have already been on their guard when, in 2001, Bush broke with centuries of  political tradition and Constitutional interpretation in naming Cheney as a virtual "co-President." The Bush people will continue to bend and break the Constitution, as long as there isn't a noisy, obnoxious protest. Not the timid complaints of the Congressional Democrats, a few choice bon mots on the talk shows, a witty cartoon in The New Yorker, a fund-raising campaign for a particular PAC or party, or another primal scream in the blogs. The only way these abuses will end is if you, Dear Reader, get out there and put yourself on the line. It's what "America's heroes" have done in countless wars, where blood was spilt to preserve, not suspend, the US Constitution. You will have to be polite and persuasive to those who don't agree with you, but you will have to confront them. You will have to make time out of your busy schedule to make your voice heard--in person, not in an e-mail or letter to the editor that will be quickly ignored. You will have to demand of leaders that that lead, providing the organization and means needed to convert a single person's outrage into a roaring tumult. If you have waited your whole life for the moment when you can do something important, that time has arrived.

Comments

[CW]

Sorry, but you are incorrect on this one. The Vice President has original classification authority, and any official with such authority also has declassification authority, dependent on relative position to the original classifier. Because Plame's status (if she had one, which is another question) (if it were truly classified, which is yet an additional question) would have been classified by the DCI and because the VP is senior to the DCI, the VP could declassify that status if he wanted to. This is not a constitutional question but a matter of executive policy - specifically EO 12958, I believe.

[J.]

CW, while you may be right that Cheney may have had declassification authority over the issue in question, the point still is, was the document declassified for the right purposes (i.e., an event had occurred or timeframe had passed that made it possible to declassify the information)? I suspect not. And if it were properly declassified, the question still remains as to why the VP told Libby to release the information to reporters and not just let it sit in the archives, like so much other data are.

[mark safranski]

"We've managed somehow to get through a Civil War, two World Wars, and the threat of nuclear armageddon without a dictator"

True, but the interpretation of the scope of the president's war powers by SCOTUS and the courts have always been extremely broad during wartime as opposed to the peacetime use of military force for missions less than war. " Deferential" is the phrase generally employed. There is some merit to that given that the Framers did seem to indicate the exceptional circusmstance of war or insurrection in several places in the text of the Constitution and Bill of Rights.

You need only look at the historical record of Lincoln, Wilson, FDR and the handling of nuclear forces during the Cold War to find war powers-based precedents that far exceed those of Bush. Truman received a strong rebuke over the Steel Mills but that was the exception and the issue there was tangential to war powers at best.

[Ivan Carter]

in response to the above post; yes, an Executive Branch's power may be somewhat larger, as directly related to acting Commander in Chief, in the absence of legislation one way or another. but note also that the Constitution demotes Congress' power with greater specificity than the executive branch's however. this aside, any such powers do not mean that the most basic clause of the constituion -- the separation of powers - that congress shall legislate,and the exeuctive branch shall administer, gets nullified during any war time

Lincoln acted in exceptional times, as our union was literally split in two and would have been the United States no more, but two separate countries. to analogize this and then state what are the best laws as we move forward, is wholly misplaced. it would require that the executive branch has specific legislative authority over congress in whatever regard it sees fit (see http://www.pressthenews.com/dancing_on_the_edge.html ), when this is expressly the opposite of the constitution's most basic provision and purpose.

why do conservatives hate democracy? http://www.pressthenews.com/mtpleaks.htm is it a hatred of it, or a misperceived belief that to "protect it" one must compromise it? http://www.pressthenews.com/misc_the_const.html which, of course, is not protecting democracy at all, but relegating it to subservient status to our own righteous opinions, views, and insecurities. which is not democracy.

[comparison and contrast essay]

We think some merit to that given that the Framers did seem to indicate the exceptional circusmstance of war or insurrection in several places in the text of the Constitution and Bill of Rights.

[free lance writing jobs]

Lincoln acted in exceptional times, as our union was literally split in two and would have been the United States no more, but two separate countries. to analogize this and then state what are the best laws as we move forward, is wholly misplaced. it would require that the executive branch has specific legislative authority over congress in whatever regard it sees fit