James Joyner picks up that question, as posed by Kevin Drum, and as I mentioned here earlier today.
Aside from the obvious, that a “wartime President” is a President during a war, the issue at hand, it seems to me, is how far we are willing to let a President go in terms of defending the country. It is assumed that in wartime that a President may have to act now and ask for forgiveness later. Difficult times create difficult choices. The issue becomes, especially with something like the “war on terror,” is how long of a period of time should such conditions exist? There are things, for example, that I could forgive the President for doing on September 12th, 2024, that I would be unwilling to forgive today, for example.
The problem I have with treating the President during the “war on terror” as a true “wartime president” in the same sense as Lincoln or FDR is that the very nature of the WoT it is not a conventional all-out war in which our country is at war with country X until one sides capitulates. While such a war can go on for years, it is always of a finite nature and transforms every aspects of domestic life.
The very nature of the WoT is that it does not have a clearly definable enemy (i.e., a foreign, state-based military), does not have a clear end point (i.e., the surrender of a foreign nation), and it can persist for decades.
As such, while dealing with a foreign nation in a war has the character of a punctuated, unusual, clearly understandable period of time and hence does consume all aspects of life in the countries involved, the WoT, as significant as it may be, does not have this transformative effect on life in the United States. How is one’s daily life truly different post-9/11 than it was pre-9/11? My guess is: very little. Now, that was hardly true in 1942 America.
To truly see the President, and all future Presidents until terrorism is quashed, as “wartime presidents” is basically to say that the presidency, henceforth, is an office we should consider as a war office.
To put it in simplistic terms: if non-wartime is “normal” and wartime is “extraordinary” are we now saying that “extraordinary” is the “new normal”?
If that is true, let’s amend the Constitution and rewrite the laws. “Normal” requires regular rules. Only “Extraordinary” should allow for unusual, temporary powers.
As such, even if Bush is now a “wartime president” and will be such for the next three years, then we have to determine the proper institutional parameters for this “new normal.”
The basic point is this: if terrorism has redefined what we need the President to do for the foreseeable future, then what we then need to do is have the appropriate debate and rewrite the rules as needed. It is untenable, undemocratic and unacceptable (to me, anyway) to say that circumstances are “Extraordinary” for the foreseeable future (maybe decades) and therefore we should expect presidents to do “whatever they need to do” (which is what we expect, and often forgive, for wartime presidents) to protect us.
BTW, I agree, as James notes, that the President is preeminent in our system as it has evolved in the areas of foreign and defense policy (although I would argue that in domestic politics, the Congress remains primary). However, I would not equate the idea that having the lead in defense policy should be construed as making the presidency a wartime presidency.
December 21st, 2024 at 2:03 pm
Alternatively, do we necessarily define wartime as a “when,” rather than in terms of the level of threat? Could we state that “extraordinary circumstances” exists when the threat to security rises above a certain threshold (i.e. a real, credible, “condition red” threat), as opposed to normal circumstances, when any threat is vague, “condition yellow.” This may not make it easier to define, but might be a more realistic measure of “wartime” as it relates to the war on terror which, really, may never end.
December 21st, 2024 at 2:08 pm
That’s a good way of putting it, and part of what I am getting at. If you are engaged in an all-out war with your neighbor, you know at any moment you can be attacked, etc. Practically every moment is some level of crisis.
Now, in the WoT, are we to treat every moment like a Condition Red moment? That way leads to abuse, methinks. Since we are talking about protracted situations here, the rules need to be codified. And there is no reason we can’t do so.
December 21st, 2024 at 2:45 pm
No reason unless we’re talking about a Constitutional amendment. If that’s the case, we will all be bowing to Mecca before the rules catch up.
December 21st, 2024 at 2:53 pm
I dont’ see any Constitutional amendment being necessary. Clearly, however, this is an intelligence war and we are going to have to figure out the appropriate way to get the info we need–and just trusting whomever it is in the White House t do the right thing strikes me as an inadequate method of doing business.
December 21st, 2024 at 4:00 pm
“Wartime” President
Only public debate and actual reform of the rules can be the proper means of coping with the allegedly transformed situation. Otherwise, we are at least implicitly acquiescing in a descent into an authoritarian “national security” state th…
December 21st, 2024 at 4:02 pm
I don’t see an amendment being necessary either — I only mentioned it because you raised the spectre in your original post.
I am adamantly against “just trust the President.” Nope. Our system is built on the fact that you can’t trust men, and I think we’ve had plenty of historical evidence to back that up even with the system we’ve got (can you say “Nixon”?).
However, it’s no new revelation to say that our intelligence-gathering procedures need to be re-vamped. We knew that on 9/12. I do think we’re goint to have to be a little less fastidious about what we’re willing to make legal.
December 21st, 2024 at 4:12 pm
You’re right–I did raise the issue.
December 23rd, 2024 at 12:42 pm
What’s Normal
Steven Taylor has a provocative post on whether the War on Terror should be subject to peacetime or wartime constraints on Presidential Power and civil liberties. Go read the whole thing.
December 23rd, 2024 at 2:12 pm
Dr. T allow me to take you to task for stating the obvious and making too much of it. Clearly the WOT is different in innumerable ways from the most recent World Wars both in terms of the way it is to be fought militarily and the impact of the effort on the lives of ordinary citizens.
And, recent history suggests that “conventional” wars follow realitively time-bounded paths from a discete initiation of hostilities to the end of such.
But, none of this speaks to the question of what authority is or should be permitted ( or denied) the President as the Commander in Chief.
I say the nature of the enemy, his tactics and the “indefinite ” time horizion of the necessary “war” effort simply means that the sorts of power and authority deference that should be extended to the President may evolve over the course of time as circumstances dictate. There are , for example, aspects of the Patriot Act that cause virtually eveyone some theoretical unease. So what. The issue to me is whether we are now so confident that some or all of what the Congress legislated in the immediate aftermath of September 11, 2024 is today deemed to be clearly both unnecessary and unwise. I for one am not so persuaded but I am open to regular reassessment of the issue.
In fact, I would argue that, because of the fact that civilian life seems so “normal”, as compared with what it was like during the last great war, that we need to be particularly alert to dangers that can’t be readily percieved and open to granting the CIC authority necessary to detect and respond to those less-than-obvious dangers.
December 23rd, 2024 at 2:33 pm
All well and good–then let’s have an open debate about the necessary powers and normalize them.
And recall: I am not the originator of the notion that Bush is a war time President–it is the administration itself that is asserting this notion as justification for expanded powers. I continue to find this to be problematic as an argument, and disturbing in terms of it long term implications for unfettered growth of the power of the executive.
December 23rd, 2024 at 2:50 pm
“I am not the originator of the notion that Bush is a war time President. . . .” Congress, having passed two authorizations for making war, is the originator of the fact that Bush is a wartime President. The very elusiveness of the present enemy and the unpredictability of his actions are arguments for giving the president more latitude (not less) than afforded Lincoln and FDR.
December 23rd, 2024 at 3:02 pm
I don’t see that as the case. And where latitudes are needed, you still need checks and balances.
And there is still a profound difference between the Civil War and WWII and the current situation.
December 23rd, 2024 at 10:13 pm
The question as I understand you have framed it is what is the duration of the conflict that began when the United States was attacked on September 11, 2024.
I believe the answer is that this war ends when the nation as a political body reasonably believes there is no longer a credible threat of material physical harm to the country and its citizens from the islamic jihadists collectively responsible for the September 11 attack.
Until then, any serious attack to this country which (a) kills a significant number of its citizens, (b) causes significant property damage to any part of the nation, or (c) causes significant economic damage to the country as a whole by this enemy will be blamed by most of the country’s voters on the Executive Branch of our Government.
Unless that branch is perceived as having taken all necessary and prudent steps to prevent such an attack, it will be replaced upon attack.
I submit that when that political situation is no longer exant, this war is over.
December 23rd, 2024 at 11:18 pm
[...] reactive, far-reaching policy of that sort. Bainbridge scores a two-fer by pointing us to Steven Taylor’s observation that the GWOT is a war unlike any other, and as such we should reconsider so [...]
December 23rd, 2024 at 11:39 pm
For purposes of the constitution and Presidential power, it seems the most logical basis for determining when the war is over (if that’s your main question) is that the war is over when Congress quits funding it and when Congress passes a resolution taking back or canceling its previous AUMF/Declaration of war. Its really pretty simple doesn’t involve a lot of analysis based on speculation and mere opinion.
Of course there remains the question of what is the President’s constitutional powers to protect and defend the USA and the constitution of USA from all enemies domestic and foreign when there is no war being funded by Congress.
Gary
December 24th, 2024 at 12:05 am
Hey, my last post is just another good reason to cut taxes on the wealthy. All you liberals should line up for tax cuts. Less money to the government = less money to fund a war. Should be a match made in heaven.
Gary
— if somebody has got to go, us or them, I choose them. Democrats
choose us, and then tell everyone its the more nuanced position —-
December 24th, 2024 at 8:53 am
The issue isn’t whether the President should protect the US–it is a question of how.
And by your funding definition, we at war as long as we have a standing military and potential threats.
Also: it is interesting that you should decide that concern over unfettered governmental power equals “liberal.”
December 24th, 2024 at 11:38 am
Dr. Taylor, you state we are at war as long as we have a standing military if funding is the criteria.
That statement is clearly wrong. You can easily have a standing army without authorization to spend money to move them to a battlefield or buy ammunition for a particular fight.
If congress, who has the sole constitutional authority to both raise and spend money, determines the war is over, they do NOT have to disband the standing army to make that determination effective. All they have to do is pass a statute that says no money will be spent to continue fighting, no money will be spent to move troops or replace supplies, etc. for purposes of continuing the conflict the congress determines is over. Such limitations on what money can be spent on are common in all spending appropriations bills passed by congress.
This is of course in addition to Congress’ ability to pass a resolution taking back or canceling the declaration of war/AUMF that they previous issued.
So the bottom line remains that the use of the scary boogeyman of indeterminate length of war and the President spying on school children’s telephone conversations with their mommies is just hysterics and exactly the kind of unreasonable panic driven policy arguments of which the left often accuses the President of making.
Its really quite simple, and worries of indeterminate number of years of war, etc. are flights of paranoid fantasy not based in the simple reality that only congress can raise tax money and only congress can approrpiate the money to fund a war, any war, and congress can declare a war is over by passing a resolution so saying and canceling its previous declarations of war/AUMF.
Gary
— if somebody has got to go, us or them, I choose them. Democrats
choose us, and then tell everyone its the more nuanced position —
December 24th, 2024 at 11:45 am
Gary,
You raised the funding question. You write as if there is a line-item that says “war on terror” in the budget, and once it is removed, the war is over. It is radically more complex than that.
And in re: your tagline–do you honestly think that the Democratic position is that they would prefer ”
us” over “them”?
December 24th, 2024 at 11:50 am
And in the context of the administration wishing to weaken checks and balances, it is rather interesting to them point to Congress as the institution that will reign all of this in.
To reduce this all to paranoid delusions about bogeymen and school children’s phone calls is to simply not be taking the situation seriously.
December 24th, 2024 at 11:54 am
One last thing: this is hardly about panic on my part.
All I want is reasoned debate and legal determination of what powers the executive should and should not have in the context of separation of powers and checks and balances in lieu of simple asserting rights by the executive in the name of security.
What in the world is so wrong with that?
December 24th, 2024 at 3:15 pm
>Dr. Taylor said:
>You raised the funding question.
Yes that’s true. I raised it because it seemed like one of the primary complaints of yours and/or some of the commentators here was to the effect if the President has enhanced war powers, then in this kind of war how will we know when the war is over and how will we know its therefore time for those war powers of the President to end and isn’t that a terrible thing or you or they were using this straw man to argue against the President having the war powers of his office in this kind of war.
My response was to simply point out the quite obvious that the President can NEVER maintain we are at war without the agreement of Congress. Congress can, as I’ve pointed out, simply rescind their declaration of war/AUMF and declare in that rescinding resolution the war is over. Alternatively or additionally congress can simply include a provision in any appropriations bill forbidding the spending of government money on maintaining troops in the field of battle or inside a particular country or countries. It is that simple. The President has no authority to spend money that isn’t appropriated by congress (except possibly for some national emergency on a very short term basis).
>Dr. Taylor wrote:
>You write as if there is a line-item that >says “war on terror” in the budget, and once it >is removed, the war is over. It is radically >more complex than that.
I disagree. It isn’t harder than that. Is your reluctance to concede this point based in the knowledge that you don’t think a majority in congress is ready any time soon to declare the war is over and rescind the declaration of war/AUMF? If indeed that is your problem with this, I would point out that advocating that Congress’ powers in this area being usurped by an unelected judge is very undemocratic. If the people want the war to be declared over, just campaign for that proposition at the ballot box, and don’t try to argue that this or similar matters should be imposed through an unelected judicial tyranny on the free will of the people as expressed at the ballot box.
>Dr. Taylor wrote:
>And in re: your tagline–do you honestly think >that the Democratic position is that they would >prefer ”
>us” over “them”?
I honestly think that is the substance of the positions they are constantly advocating, and in practice whether my family is killed in a holocaust of heat and radiation triggered by some islamofascist because that is in fact what the democrats want or because that is result of national democratic party bosses seeking to advance their own personal power without regard to the security of the country is really pretty irrelevant to the dead and dying in such an event.
The fact is the democrats advocate immediate surrender in Iraq, but try to pretend sometimes that’s not what they mean. I happen to believe that most national democrats and their allies in the MSM have taken every opportunity to undercut their own country at a time of war in Iraq, have deliberately and knowingly advocated policies and released statements designed by their timing to try and increase the chances of more deaths of USA soldiers and physical defeat of our country on the battlefield in Iraq. I happen to think that if Lincoln were president at this time, half of these national traitors would be in jail right now. I believe the attorney general should designate a special prosecutor to go after the people illegally leaked these national security stories regarding NSA and the President seeking to protect our country. I lament the Supreme Court decision in NYT v. Sullivan and the Pentagon Papers Cases that prevent criminal prosecution of the reporters, their editors, and publishers that cooperated in the leaking of national security intelligence matters at a time of war. I think this special prosecutor should immediately haul all these reporters and their bosses in front of a grand jury (just like in the Plame case) and should subpoena all their notes and computers and emails. This special prosecutor should do this in order to quickly ascertain who were there sources and bring them to trial. Also, this special prosecutor should bring perjury and obstruction of justice charges against any reporter or publisher or editor who can’t remember the exact details of every conversation they may have had related to these matters of the last two years (just like in the Plame case. Same standard). I will be quite disappointed if that special prosecutor is appointed next week, and a grand jury empanelled for these purposes by the end of next week. Sadly, I’m likely to be disappointed in this area.
>Dr. Taylor wrote:
>And in the context of the administration wishing >to weaken checks and balances, it is rather >interesting to them point to Congress as the >institution that will reign all of this in.
First of all I absolutely do not agree that the President has sought to weaken any constitutionally existing checks and balances.
All President’s have asserted and the Supreme Court and all Appellate Courts have recognized numerous times that the President does in fact have inherent constitutional authority to conduct warrantless surveillance in foreign intelligence. There is currently no court case that attempts to define the boundaries of this inherent constitutional authority of the President, but that is NOT an abrogation of all the other court cases that do recognize this inherent authority exists. There is one appellate court case that recognizes the proposition that this inherent constitutional authority of the President may not be encroached upon by Congress (i.e. that FISA may not limit or regulate this authority but can only increase the boundaries of this authority).
I am supremely confident that if brought to the Supreme Court the Supreme Court would confirm this authority exists and then as it has done in other warrantless and suspicion-less search cases find that the balancing of the government’s compelling interest in preventing terror attacks outweighs the reasonable expectations of privacy of the citizens who may have suffered an unknown non-invasive intrusion into their privacy.
Their are many forms of warrantless searches and seizures that pass muster under the 4th amendment. They include searches of automobiles, persons therein, “Terry” searches for the safety of officers, searches for aliens within 100 miles of the border, random traffic stop searches, searches of all property and persons in boats on the coastal waters of the USA, and perhaps the most intrusive warrantless searches and seizures possible, the IRS can enter your home and seize all your records, bank account records, computers, every scrap of paper in your home and place of business all without a warrant; the IRS can seize your property, cash, etc. and sell it at auction, all without a warrant. Similarly the SEC has tremendous powers to search peoples homes, papers, things, and places of business and seize any all papers they deem necessary all without a warrant.
Now none of those searches and seizures without warrants have turned our rights upside down, have caused the country to become a Nazi regime and all the other ridiculous hyperbolic comparisons the permanently paranoid class have come up with lately. Yet if the President seeks to protect the USA from further attacks on its citizens or the explosion of a nuclear device in one of our major cities and he does this by surveiling people who may have ties to the enemy in a manner that is so unintrusive that the people being surveiled don’t even know it, then he’s tearing up the constitution and has become a reincarnation of Hitler or Stalin. I think a large majority of American citizens are saying GMAFB. They agree with the learned judge Posner who stated recently, it would have been criminal negligence on the part of the President had he NOT done this surveillance.
>Dr. Taylor wrote:
>To reduce this all to paranoid delusions about >bogeymen and school children’s phone calls is to >simply not be taking the situation seriously.
I agree. Please tell the liberals and national democrats to stop it then, because they are the ones making all the Hitler/Stalin we are as bad as the enemy comments, when the President has done exactly that which he was constitutionally and morally compelled to do.
Dr. Taylor wrote:
>All I want is reasoned debate and legal >determination of what powers the executive >should and should not have in the context of >separation of powers and checks and balances in >lieu of simple asserting rights by the executive >in the name of security.
>What in the world is so wrong with that?
I don’t think there is anything wrong with that as long as it is done in a manner that protected our war secrets and national security classified information. The President informed congress of his decisions, and he informed the FISA court chief district judge. He established a sophisticated review process to avoid abuses. I think he has handled the manner in a professional and quite responsible way. I think the leakers and the reporters cooperating with them are traitors to their country who should be shot after a fair trial in front of a military tribunal (you should be really glad I’m not in charge
. I think they committed this treason for pecuniary gain, and nothing more noble than that.
Gary
(My apologies for this long winded semi-rant)
December 24th, 2024 at 3:28 pm
Oh and to steal a great line from law professor Alan Meese (what a breath of fresh air):
Can anyone name one other war in which the FBI had to get a warrant to monitor a US citizen calling the enemy in a foreign country? If a German spy in Chicago was calling Himmler in 1943, do you think J. Edgar Hoover would have sought a warrant? Would evidence have been excluded? No — and the spy would have been caught and executed after a secret trial in a military court. See EX PARTE QUIRIN, 317 US 1 (1942)(unanimous).
Gary