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Framing the Presidency

What kind of executive branch did America’s constitutional framers have in mind? It’s a question with which federal courts are now busy wrestling. And the quality of liberty American citizens enjoy very much depends on their answers.

  • Aziz Huq
Published: February 19, 2007

Cross posted from The Nation

February 19, 2007

What kind of executive branch did America’s constitutional framers have in mind? It’s a question with which federal courts are now busy wrestling. And the quality of liberty American citizens enjoy very much depends on their answers.

Today, President Bush’s lawyers claim unlimited power to seize, indefinitely and without charges, individuals the Administration deems “enemy combatants.” In two separate appellate court cases—one of which, Omar v. Harvey was argued earlier this month, the President’s lawyers made the following, remarkable claim: When international entanglements are involved, signified in the Omar case by a United Nationals Security Council resolution, US officials can detain a US citizen, indefinitely. Last week, the DC Court of Appeals rightly—and squarely—rejected this legally specious claim. It remains to be seen whether the DC Court of Appeals will reject a similar claim in the case of Munaf v. Harvey.

(In Omar v. Harvey, a US citizen, Shawqi Omar, was arrested by US personnel at his home in Baghdad in October 2004. After Omar was arrested, he was taken to a US prison in Baghdad, interrogated and subjected to electric shocks. He remains in US custody, rotated through a series of prisons in Iraq. In Munaf v. Harvey, another US citizen, Mohammed Munaf, now a prisoner at Camp Cropper in Iraq, is claiming an unfair trial in connection with his death sentence imposed by an Iraqi court for his role in the kidnapping of three Romanian journalists, for whom he was acting as translator.)

The Framers had well-articulated trouble with the notion of freewheeling executive power. The Presidency they created, and the institution that is celebrated today, broke decisively from European traditions of monarchical absolutism. Indeed the English tradition of government, upon which ours is modeled, decisively rejected the King’s claim to stand above the law; that was in 1688, almost a century before the Anmerican Revolution.

Today, along with all the other US presidents, we remember two great leaders: George Washington and Abraham Lincoln. Both men understood and practiced the wisdom of executive restraint even in times of crisis. They understood that power flows from righteousness not from soldier’s steel. The measure of a nation, as much as the measure of a man, is the ability to hold true under pressure to universal truths of decency and humility.

Executive authority strains most vigorously against its constitutional restraints in times of war and in matters of human liberty. Both Washington and Lincoln faced precisely these dilemmas, and resolved them without compromising America’s dignity or reputation.

In the Revolutionary War, British forces acted with rank disregard for the well-being of their American prisoners, leaving literally hundreds to die under wretched conditions in prison ships off New York’s harbors.

Yet General Washington would not descend to their level. “Treat them with humanity,” said Washington in 1776, of British prisoned taken after the Battle of Trenton, “and let them have no reason to complain of our copying the brutal ways of the British Army in their treatment of our unfortunate brethren.”

The Bush Administration’s current effort to vanquish Al Qaeda and the menace of terrorism rests on America’s capacity to maintain the good faith and trust of a globalized world. When our safety depends on Uzbekistan’s willingness to secure loose nukes and Indonesia’s alacrity in shutting down jihadist websites, international cooperation is at a premium. To act as though the international law of human rights has no application to American action, by contrast, is a surefire way to extinguish that cooperation.

The Civil War era provides equally important lessonsn for our own times.  While Lincoln famously decided in April 1861 to suspend the Great Writ of Habeas Corpus, which is the Constitution’s committed remedy for unlawful executive detention, he did not purport to stand above the law. To the contrary, Lincoln acted only in the face of imminent and undeniable disaster, with Confederate forces looming on Washington from Virginia, and an angry Baltimore mob attacking Union troop deployments.

Yet as soon as crisis receded, Lincoln returned to Congress to seek legislative approval for the unlawful detentions. Lincoln eloquently pleaded his own case, candidly revealing the causes and dimensions of the moment’s need. And Congress duly authorized what, at the time, had been unlawful executive action.

The contrasts to today could not be more stark. The emergency powers the President claims have no expiration date. Unlike Lincoln, President Bush shows no readiness to be candid to Congress. Executive detention operations from Guantnamo to Italy to Iraq have fostered the contempt of the world community. Germany and Italy have issued warrants against CIA agents due to their involvement in the illicit kidnapping of terrorism suspects. Just this week, Argentina’s president frankly told visiting Attorney General Alberto Gonzales that the President’s torture policies were wholly unacceptable.

When the nation’s leading law enforcement official becomes persona non grata around the world, we have cause for concern. Thomas Jefferson said it best in the Declaration of Independence: The fledgling nation, Jefferson noted, had to maintain the “decent respect for the opinions of mankind.

Above all, it is the President, in his respect for the due process of law and the inherent dignity of citizens and non-citizens alike, who must maintain this respect. Today more than other any calendar date is a chance to reflect on whether in the Bush Administration, this trust continues to be fulfilled.

Aziz Huq: “Framing the Presidency” (pdf)