I just want to point out something about the Constitution that I think has been overlooked, and quite possibly for a long time, but especially since President Bush took office. Bush and his people keep talking about "the inherent authority of the President as Commander-in-Chief during wartime." What they don't point out is: There's no such thing in the Constitution. Go ahead. Show me where it points out just what these powers are. You can't, because it doesn't, because they aren't there. This whole business about how the president has extraordinary powers inherent as Commander-in-Chief of the Armed Forces is a fantasy, forced against the will of logic into the law. One could have called it a "rape" and not been far off. But what is the legal basis of this concept? First, let's review exactly, and in full detail, what the constitution says about the president's role as Commander-in-Chief.
Article II, Section. 2.
Clause 1: 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;
That's it. That's all it says. It does not say that he may abandon the constitution when ordering the military into action. It does not say that he can ignore the rules under which the military is required to operate in carrying out his commands. Before I go further, I feel I should point out that right above this oft-referenced part of the Constitution, the part that, for all the Bush Administration cares is the only relevant part of the Constitution, is this even more important one.
Article II, Section 1, Clause 8:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) 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."
In the Enumerated Powers Clause of the Constitution, this is what it says about the authority of Congress to determine how the military may be used during war or peace.:
Article I, Section 8, :
Clause 1: The Congress shall have Power To...
Clause 11: To declare War, grant Letters of Marque and Reprisal(*), and make Rules concerning Captures on Land and Water;
Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
Clause 13: To provide and maintain a Navy;
Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;
Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
(*)A Letter of Marque and Reprisal is a license granted by a state to a private citizen to capture the merchant ships of another nation. So not even the president can order someone to do this.)
To me, that clearly means that it is the Congress, and not the Commander-in-Chief of the Armed Forces (be they at war or not, and I will get to that in a moment), who decides how the military will behave. So where does President Bush get that the idea that he decides how the Armed Forces behave, when temporarily under his command?
Remember that the Founding Fathers never intended that there be a permanent Army. They wrote into the Constitution a provision that allowed the Congress to raise and support an Army, but no appropriation could be for more than two years. (So how do the contractors working for the DoD get deals for longer than two years, if no appropriation shall be for longer than that? Separate question. In fact, how does this permit them to sign a four-year contract with me when I enlisted in the Air Force in 1982? Another separate question.) And they also decided that the Congress would decide how our military personnel, whether in wartime or not, would behave. Now, should the Armed Forces have been needed, the Founders didn't want them to be under their own command. (That's called a junta.) So they assigned the role of Commander-in-Chief to the highest elected office in the country, which happened to be the President of the United States. But, in his role as Commander-in-Chief, he is still bound by the rules the Congress lays down for behavior of our Armed Forces.
The Founders never intended that the President could take command of the Armed Forces, who are governed by the rules that Congress laid down, and institute his own rules that are contrary to what the Congress dictated. If he were to order a soldier to do something that contravened the rules the Congress set in place, then he would be giving them an illegal order under the law. (The law being what the Congress writes, not the president. See Article I.) That soldier would be perfectly within his rights to respectfully refuse to carry out that order with impunity. He (the soldier, and a hypothetical one who could be male or female, so please forgive me for not inclusing both genders each time - I liked the women I served with) took an oath to obey "the lawful orders of those appointed over" him. Any unlawful order would be as valid as an order from you or me. The president does not have the authority to order the troops to do illegal things. Bush thinks he does.
And therein lies the problem. In order for Bush to be able to order the military to do his bidding, he must have a war going on for him to assume the role of Commander-in-Chief. (By the way, you noticed how often Republicans running for "President of the United States" refer to that office as the "Commander-in-Chief", as if that was the title to which they were trying to get elected? That should tell you what they intend to do with the office of President.) And since he feels that during wartime, he is not bound in any way, shape or form by the rules for the military established by Congress (even though the role of "Commander-in-Chief" must be seen as being a member of the military bound by the same rules as everyone else), he believes that his powers during wartime are unlimited. So he must always keep us in a state of war. Without a war, he has no "inherent authority as Comander-in-Chief during wartime." Do I honestly believe that he is that petty? I can't be 100% certain about Bush though I truly believe he can be, but I am about Cheney, and it is Cheney who is the real power behind the rise of the Imperial Presidency.
For it Dick Cheney who brought in David Addington and John Yoo into the administration to write their policies of the president's powers during wartime, a state they intended to keep the country in for their entire time in office. They are the ones who took Ronald Reagan's theory of how to run a State Government (as in, the United States, not a State Nation) called The Unitary Executive. It essentially said that all Executive Branch decisions and authority in a state government should derive from a single person, the Governor, and that there not be so much power distributed to independent agencies. At least, that's the bare bones gist of it. Cheney's people tried to apply that theory to running the federal government, though it could never work. It could never work because it was contrary to how our federal system of government was designed to operate. You see, the Constitution only guaranteed the people that their states would provide a republican (small "r") form of government, meaning that they would be represented in their government body by someone else who would also represent many others. There was no guarantee made that the people coulsd have a hand in choosing those representatives in government, but that was left up to the states. Most of them saw the wisdom in letting the people choose their elected officials, except for the US Senators who, by the Constitution, would be picked by the state governments (either the legislatures, or the governor alone, or however they decided to do it; it was Democracy, and it was all the buzz!) In turn, those states were otherwise free to decide for themselves how they wished to govern themselves in all matters not empowered to the Congress.
But when it came to the federal government, the Constitution spelled out clear delineations on who would do what. The law of the land would be determined by the Congress. This power was plenary, except where the constitution specified it to the states or to the people. The President was empowered to carry out the law of the land as written by Congress. If you will recall his oath of office above, that is pretty much what his constitutional duty is, along with preserving, protecting, and defending the Constitution of the United States. Nothing about carrying out a political agenda. Other than being empowered to determine foreign policy, nothing about the right to start a war whenever he felt like it. That power was reserved to the Congress. And nothing whatsoever about treating the Constitution of the United States like a "goddamned piece of paper". In fact, one could easily argue, quite the opposite. And the Supreme Court (and such inferior courts as Congress may create) would determine how to interpret the law in a manner consistent with the Constitution. The real Constitution. Not the one they wished they took an oath to preserve, protect abnd defend.
George Bush and Dick Cheney falsely believe that they have the authority to do whatever they want to do when acting to protect the country. But protecting the country is not what they are sworn to do. They are sworn to protect the constitution, and no amount of "breaking-the-constitution-to-protect-it"-type logic can justify their actions. When they diverted some $700,000,000 from fighting the war in Afghanistan (which, at the time, was an authorized use of the money, for fighting in Afghanistan, that is) to begin planning the invasion of Iraq (which, at the time, was not an authorized use of the money, for planning the invasion, that is), they violated the Constitution. When they detained people on the battlefield and fully intended to hold them indefinitely, never bring them to trial for anything, and periodically use torture to obtain unreliable information, they violated the Constitution. When they signed bills passed by Congress into law and then quietly issued accompanying signing statements that, for all practical purposes, said that the president would not adhere to any law which he felt infringed on his "inherent authority as Commander-in-Chief during wartime", they violated the Constitution. I ask you, I implore you, please explain to me, why are we allowing either of these gentlemen to serve out the remainder of their terms of office, when they clearly and plainly have no intention of obeying the laws or the Constitution they each took an oath to uphold? Why?