The Law: George Bush as Commander in Chief: Toward the Nether World of Constitutionalism

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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.

--Article II, Section 2

President George W. Bush's sweeping assertions of authority as commander in chief have launched presidential power on a trajectory toward the realm of illimitable and unaccountable executive power, the nether world of American constitutionalism. The president, according to the Bush administration, may initiate preventive war and institute domestic surveillance of Americans' telephone calls and e-mail messages, all without specific congressional authorization. It is contended that the president may designate, seize, and detain any American citizen as an "enemy combatant" and imprison him in solitary confinement, indefinitely, without access to legal counsel and a judicial hearing. Further, it is argued that the president possesses the authority to suspend the Geneva Convention and federal laws that prohibit torture. Among other powers asserted, the president, as commander in chief, may establish military tribunals, terminate treaties, order acts of extraordinary rendition, and take actions that he perceives as necessary to the maintenance of national security and the common defense. Under this theory, any law that restricts the commander in chief's authority is presumptively unconstitutional. At all events, the president may exercise an "override" authority in the unlikely event that Congress would by statute seek to restrain the president.

It is likely that the Anglo-American world has not heard such raw assertions of executive power since Oliver Cromwell anointed himself "Lord Protector" of England. President Bush's contentions are, to borrow from the title of John Dean's book, Worse Than Watergate (2004), and they raise questions of fundamental importance to the republic: is the commander in chief altogether beyond control of Congress? What is the scope of power conferred upon the commander in chief to which the president may lay claim? Does the president enjoy the authority to override U.S. statutes--what the English monarchy embraced and advanced as a dispensing power, an attribute of the royal prerogative?

As we shall see, President Bush would ascribe to the commander in chief powers that were never possessed by the president when the post was incorporated into the Constitution, and which may not be engrafted by a theory of a presidential revisory power. In fact, President Bush's assertions soar beyond the modest authority assigned by the Constitutional Convention to the commander in chief. All invocations of the president's power as commander in chief must begin with Alexander Hamilton's explanation in Federalist no. 69 that the president's authority would be "much inferior" to that of the English king and that "it would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy" (Hamilton, Madison, and Jay 1937, 448). No "first General" may pretend to exercise the bundle of policy-making powers adduced by President Bush.

The lines and curves of the administration's arguments have distorted the origins, scope, and history of the Commander-in-Chief Clause, and they represent a profound threat to constitutional government and republican values. The president, as commander in chief, has no constitutional authority except the power to repel invasions of the United States. His authority to conduct war, once authorized by Congress, is conferred by statute. As a consequence, the president has no power--except that of resisting sudden attacks on the nation--that cannot be stripped by Congress.

Origins of the Commander-in-Chief Clause

There is, in the history of the Commander-in-Chief Clause, no hint of the warmaking and policy-making authority that President Bush would attribute to it. …