The President in Wartime


Published April 03, 2008, issue of April 11, 2008.
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The Bush administration recently declassified a secret Justice Department memo from 2003 that shows just how serious a threat our democracy faces in the current war on terrorism. Unfortunately, the threat revealed in the memo is not from Al Qaeda, but from us.

The memo was addressed to the legal department of the Pentagon. It was meant to advise the military on how far it may lawfully go in roughing up captured terrorism suspects during interrogation. The answer was, pretty far indeed. It was the considered legal opinion of the chief legal office of the United States, the Department of Justice, that the president of the United States is — well, above the law. “In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy,” wrote the memo’s author, John Yoo, then a Justice Department lawyer.

In fact, Yoo wrote, “Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute would be unconstitutional as applied in this context.” That is, the law would conflict with the Constitution’s designation of the president as commander in chief, charged with doing whatever necessary to protect the nation during wartime. There’s “original intent” for you.

And who decides what constitutes “wartime”? According to the Constitution, the Senate does. But that’s old stuff. Nowadays, we’re at war whenever the president says we are. All he has to do is decide we’re under attack — or threatened with attack — and order our troops to open fire.

And when does the war end? When the president says so. Right now, for example, we face an enemy so shadowy and ubiquitous — terrorism — that the war could last, we’re told, for a generation. Until then, according to the Bush Justice Department, the president may do whatever he thinks necessary to protect us. In other words, anything he wants.

The Yoo memo was withdrawn a year after its drafting, following a revolt by government lawyers. But a similar Yoo memo, issued to the CIA, remains in force. Congress passed a law overriding it a few years ago, but the president vetoed the bill.

It’s hard to imagine what terrorists could do that would threaten our democracy more than this president’s notion of his power. Next time we choose a president, we ought to find out how the contenders define the job.

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