The Use of Extraordinary Powers

There has been considerable commentary around the blogs on this story. The story concerns Professor Walter F. Murphy, emeritus of Princeton University who is certainly among the most distinguished scholars of public law in political science. While attempting to travel by air, he was detained for being on a watch list. Now the man is not only the McCormick Professor of Jurisprudence (emeritus) but he is also a retired Marine colonel having fought in Korean War and served for an additional 19 years in the reserves. The heart of the story is this bit, from the Professor

I presented my credentials from the Marine Corps to a very polite clerk for American Airlines. One of the two people to whom I talked asked a question and offered a frightening comment: "Have you been in any peace marches? We ban a lot of people from flying because of that." I explained that I had not so marched but had, in September, 2006, given a lecture at Princeton, televised and put on the Web, highly critical of George Bush for his many violations of the Constitution. "That'll do it," the man said. "

A rather frightening reason for an American, especially a distinguished and heroic American, to be on a watch list. As I say, a number of people have commented on it including Josh Marshall and Mark Kleiman among others.

I just want to add that this points up my opinion that the use of these powers, watch lists, arbitrary detention and the like do not serve the interests of public security but only the personal security of the government officials granted these powers. The kinds of power that George Bush and the conservatives are claiming have very little value for aiding the government is providing security (indeed these powers may, even in the most honest of hands, be detrimental). The purpose they do serve is to make it possible for the government official to keep his position, and his power, even if he fails to provide the security he is supposed to provide. That is why this nation does not provide such power to government officials and why, as a consequence, we have grown to be so powerful and secure.

Bush Weakening II

This is another great post by Josh Marshall at Talking Points Memo. He discusses the White House brouhaha over Nancy Pelosi going to Syria. I think he nails the issue (not surprisingly I should think this as it goes along with my previous post). Bush is weakening and Nancy Pelosi going to Syria and doing the sorts of things that a US President and/or Secretary of State should be doing, point up the inability of this White House to do its job. George Bush no longer has the credibility or stature to perform on the international stage the way the President of the United States ought to be able to. What is more striking about this dust up though is that George Bush seems far less concerned over his inability to do the job, than he is over the fact that Nancy Pelosi doing it points up his failure. George Bush doesn't much care if he fails, or if his failures hurt the United States or the people of the United States. George Bush is only angered if his failures get publicly displayed so that he looks bad.

This ties in to the desire in this administration for such unparalleled and absolute power to seize and arrest people without oversight. Such power granted to government officials is not used to provide the citizenry with better security. It is invariably used so that the government officials can continue to do a mediocre or louse job of providing security but not fear having their failures become publicly known. That is what George Bush wants these powers for.

Commander in Chief

I want to talk about the role of President as commander in chief. This is a Presidential role which has expanded greatly in the past half century or so, and then now under George Bush the right wing has been arguing that the President's role is nearly absolute. This interpretation of the President's role as commander in chief is odd coming from the so-called strict constructionists. First, what does the constitution actually say.

Article II, section 2

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;

emphasis added. The phrase "when called into the actual Service of the United States;" suggests that when we are not at war the President does not, constitutionally, have power as Commander in Chief. This suspicion is bolstered by reference to The Federalist Papers Number 69 where Hamilton writes

The President will have only the occasional command
of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union.

Now I'm not a strict constructionist and I do not call for a return to constitutional interpretation that would prevent the President from taking any military action without a congressional declaration of war. But it is clear that the current trend in thinking that the President's power to act with the military is absolute, is itself absurd.