War Is No Blank Check

"A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens."

Those words from Supreme Court Justice Sandra Day O’Connor are music to the ears of every friend of freedom. That line is a direct slap at President George W. Bush, who has signaled by almost every word and deed that his personal declaration of war on “terror” is a blank check. He believes that the courts have no legal authority to even review his indefinite incarceration of American citizens and others without charge if he brands them “enemy combatants.” In this administration’s view, one may not even appeal that designation. Can one think of a more fundamental attack on American legal tradition that this? Thank goodness the Supreme Court recognized how subversive the Bush administration has been.

It is regrettable that Justice O’Connor did not point out that, strictly speaking, no state of war ever existed between the United States and Afghanistan, Iraq, or al-Qaeda. President Bush did not ask for a formal declaration of war from Congress, and that body did not issue one. Both, then, were complicit in a reprehensible violation of the Constitution, which vests the power to declare war solely with the Senate and House of Representatives. The Framers of the Constitution knew what they were doing. As The Federalist Papers makes clear, depriving the president of the power to declare and appropriate the money for war was intended to keep the executive weak relative to the legislative branch. (Even Congress was restricted in its financing of military matters: appropriations for the army can be for a term no longer than two years.) The last thing most Americans wanted in the late eighteenth century was a home-grown king with anything approaching absolute power. I’m not sure we can say the same for early 21st-century Americans.

All of this shows why the Supreme Court rulings in the Guatanamo and Hamdi cases are important, even if ambiguous in their details. The modern advocates of the fuehrer principle, of course, are beside themselves. How dare the president’s authority be challenged! Who the hell are the Supreme Court justices anyway? This about sums up the response to the rulings by the “conservatives” who saturate talk-radio. For all their mock reverence for America, they are surprisingly ignorant of the Constitution. “We’ve got to do something about the Supreme Court,” radio host Laura Ingraham declared. She’s endorsed Sen. Lindsay Graham’s proposal to restrict the Court from ruling in areas dear to their hearts, such as the treatment of “enemy combatants.” (We know what such treatment consists of.) It’s true that the Constitution (Article III, Section 2) permits the Congress to restrict the Supreme Court’s jurisdiction, but that doesn’t mean it’s a good idea to do so.

Anyone who favors prohibiting the courts from reviewing the president’s conduct with respect to detainees displays a shocking antagonism to this country’s founding ideals, which include the critical principle of habeas corpus. No protection against tyranny, short of the right of revolution, has been more important than the legal ability to challenge one’s detention before a judge. The war party and its media parrots symbolically spit on every great charter of liberty when they object to court review of the president’s wartime policies.

In this regard, it is amusing that these self-styled patriots love to designate who is and is not a “great American.” By their standards, anyone who faithfully defends every presidential whim couched in national-security lingo is accorded that label, and anyone who lifts an eyebrow at the usurpation we’re witnessing is suspect. By objective standards, it ought to be the other way around.

Sheldon Richman is senior fellow at The Future of Freedom Foundation, author of Tethered Citizens: Time to Repeal the Welfare State, and editor of The Freeman magazine. Send him email.

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