History Justifies War Powers

Article excerpt


Contrary to the fearful voice of Associate Justice Robert Jackson dissenting in Korematsu vs. United States (1944), emergency powers asserted by presidents in times of war have not turned into loaded guns lying around for misuse by any zealous official who claims an urgent need.

History speaks otherwise. During the Civil War, for instance, President Abraham Lincoln extraconstitutionally summoned an army, expended unappropriated funds, unilaterally suspended the writ of habeas corpus, and suppressed speech friendly to the Confederacy. Congress belatedly ratified Lincoln's legislative usurpations. They were not repeated during the war. Neither did they establish presidential war principles that crept into nonemergency circumstances.

President Franklin D. Roosevelt's ugly relocation of Japanese American citizens and residents into concentration camps has been discredited. Indeed, Congress voted reparations for the victims in the Civil Liberties Act of 1988; and, convictions for defying curfew and relocations orders have been voided. Learning from FDR's example, President George W. Bush in the wake of the September 11, 2001, terrorist attacks lectured against stereotyping of Arabs or Muslims and established a special FBI unit to investigate crimes against either minority group.

More than constitutional text or syllogism, the largely reassuring history of presidential war powers will control the impending decisions of the U.S. Supreme Court concerning the Guantanamo Bay detainees and the indefinite detentions of three United States citizens as enemy combatants in the nation's war on global terrorism.

September 11, 2001, marked the entry of the United States into that war every bit as much as December 7, 1941, marked its entry into World War II. The terrorist enemy has made every American citizen anywhere in the world fair game, as the grisliness of September 11 attests.

In warring against international terrorism, President George W. Bush has claimed the power to detain enemy combatants indefinitely without judicial review, whether citizens or aliens. The unreviewable detentions serve threefold purposes: to extract intelligence that might thwart future editions of September 11 or otherwise save Americans from a terrorist attack; to prevent captured enemies from returning to combat; and, to avoid distracting the military from its overriding mission of killing and capturing the enemy by requiring the gathering of legally admissible battlefield evidence to disprove easily fabricated claims of mistaken identity. Detainees are denied a right to counsel. Any lawyer worth his salt would advise against talking, thus frustrating the intelligence objective of the detention.

President Bush's detractors assail the idea of unchecked power to designate and to detain enemy combatants, especially because it could become a permanent fixture of executive authority.

The global terrorism war confronts no clear end point. In addition, the rights to an attorney and to judicial review of the president's designations are necessary, it is said, to avoid arbitrary or capricious or ill-founded detentions.

More important, to ratify the principle of unlimited presidential power to designate and to imprison enemy combatants would create a "slippery slope" leading to its misuse against political opponents or disliked minorities. …