Secret Legal Memos and the Meaning of "War"

The explosive legal memos of the Bush administration released yesterday justify presidential privileged that supersedes many laws and constitutional protections. They assert that president could unilaterally abrogate foreign treaties, ignore any guidance from Congress in dealing with detainees suspected of terrorism, and conduct a program of domestic eavesdropping without warrants.

The justification for such strident executive privilege is based on the notion that the president, as Commander in Chief, has the right to take any and all action necessary in a time of war to defeat an enemy. The word "war" appears in the memos several times such as in the following example:

"First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

I don't mind if my dentist wants to call the campaign against Al Qaeda a war. I don't even mind if the talking heads on cable news continue to go on about the "War on Terror." Everyone knows what they mean.

It should not be forgotten, however, that "war" has a specfic legal meaning in the United States. War can only be declaired by the Congress and, indeed, in a legal state of war, the Commander in Chief is endowed with certain special privleges. But, in a state of warfare or "virtual war," such as we've been in since 9/11, the Commander in Chief has no special legal authority.

I would not expect Joe the dentist or Sean Hannity to be sticklers for the legal definition of war. Fighting is fighting. It's all some form of war. I would, however, expect that the president's legal council makes that distinction. If he or she does not, who will?

The very reason the Founders gave Congress the sole prerogative to declare war was to prevent the president from abusing his authority as Commander in Chief. If the president had the right to declare war at will and in so doing be granted special legal privileges that enabled him to circumvent the constitution, we would have a serious problem on our hands: a dictatorship in all but name.

The secret legal memos just released suggest the administration was operating as if in a legal state of war despite there being no congressional declaration. This to me is one of the most disturbing breaches of the constitution committed by the Bush administration and the key reason why the legal arguments are inherently and absolutely indefensible.

But what do you think?


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