WASHINGTON, DC, February 7, 2013 — “Whereas the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense…”
-President Roosevelt, Executive Order 9066, February 1942
In the name of national security, US presidents have historically enacted extreme policies that have violated civil liberties. From time to time, grave crises have threatened the United States and have compelled President’s to react accordingly.
The Constitution does not say the Executive branch can suspend habeas corpus or violate civil liberties. However, presidents have used laws, US Code, and Executive Orders to justify emergency powers that consequently violate our civil liberties.
Every President has the awesome responsibility of balancing national security risk with preserving the Constitution.
Resolving the war on terror, the national emergency of our time, will likely take several decades to resolve. Unfortunately, freedoms and civil liberties are necessary casualties of this long war. Without security, there is uncertainty and uncertainty leads to chaos.
Emergency powers are inherent to the office of the President and are protected by the US Constitution and through legislative action. According to a 1973 Senate special committee, presidential emergency powers are authorized in over 470 provisions of federal law. To date, US Presidents have authored and enacted 147 Executive Orders (EO) related to national security. These laws and EOs are, in effect, a menu for the president to reference when enacting emergency powers.
What is most compelling for the president’s emergency powers is the Constitutionally mandated oath of office, “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States”. This oath implies the President has vast powers as Commander in Chief to “preserve” and “protect” the Constitution as he sees fit.
As President Obama takes his second oath on Monday we should all ponder the nature of the powers we have given him.
President George Washington set the precedent for emergency powers when he faced the country’s first real national emergency. From 1791 to 1794, farmers in Pennsylvania were enraged after the federal government imposed unreasonable taxes on locally brewed whiskey that effectively wiped out the farmers’ profits. The new tax was so unacceptable to these farmers that they attacked tax collectors and rioted. Eventually, they attacked a federal marshal and destroyed the regional inspector’s home and property.
Washington called up a 13,000 man militia under the Militia Law of 1792 to quell the rebellion. A force of 13,000 men may seem excessive, but Washington used restraint to quell the rebellion with minimal casualties.
Washington’s choice to use the militia to suppress the Whiskey Rebellion established the Executive branch’s power to react to emergencies in a measured manner.
Unfortunately, subsequent Presidents failed to emulate Washington’s moderation and leadership when temporarily raising the bar of acceptable standards in the name of national security.
The most famous instance of a President violating civil rights in the name of national security is when President Lincoln suspended habeas corpus. Lincoln’s policy authorized the military to summarily arrest, detain indefinitely, and try US citizens at its discretion. Supreme Court Chief Justice Roger Taney’s declaration that Lincoln’s actions were unconstitutional had minimal affect because the Army supported Lincoln. However, in March 1863 after much debate and opposition from Democrats, Congress passed the Habeas Corpus Act, which sanctioned Lincoln’s actions. As a result, over 10,000 Americans were incarcerated without trial.
History decided that Lincoln’s actions in defense of the Union were justified.
One of the most egregious examples of Presidential emergency powers violating civil liberties is when President Franklin Delano Roosevelt (FDR) authored EO 9066 in February 1942. EO 9066 designated parts of Arizona, Washington state, Oregon, and California’s coastal areas as military zones, which delegated extreme powers to the military. EO 9066 permitted the military to relocate immigrants and American citizens into assembly areas, commonly called “internment camps,” based on their ethnic heritage. The military was able to detain these people without probable cause, warrants, or trials, all in direct violation of the Constitution as written in the Fourth, Fifth and Sixth Amendments.
President Roosevelt authorized EO 9066 because of the hysteria in America caused by the attack on Pearl Harbor. Americans wanted to ensure no one of Japanese, German, or Italian descent could threaten security on the home front. Specifically, FDR thought EO 9066 would protect America during World War II against homegrown saboteurs and spies. As a result, from 1942 to 1945, approximately120,000 Japanese-Americans and resident aliens were detained, while 5,000 German and 300 Italian resident aliens were also interned.
History has not viewed Roosevelt’s violation of the Constitution with as much approval as it has viewed Lincoln’s.
In 2001, shortly after the 9/11 attacks, President George W. Bush labeled al Qaeda a threat to national security and assumed emergency powers to combat global terrorism. Congress then passed the Patriot Act of 2001. At the time, the collective American intelligence agencies were not able to articulate the threat properly, so President Bush used extreme actions to prosecute al Qaeda and preserve national security. The Act included warrantless electronic surveillance of Americans suspected of terrorism. This aspect of the Patriot Act permitted the government to violate Constitutional rights as afforded by the Fourth Amendment.
Bush also authorized indefinite detention of captured enemy combatants in foreign prisons and Guantanamo Bay. He believed that al Qaeda operatives, facilitators, and financiers were unlawful combatants and could be subjected to enhanced interrogation techniques like waterboarding. Speaking of prisoners at Guantanamo Bush said, “Three people were water boarded and I believe that decision saved lives. Their interrogations helped break up plots to attack American diplomatic facilities abroad, Heathrow airport and Canary Wharf in London, and multiple targets in the United States.”
Just before midnight on New Years Eve, President Obama signed the National Defense Authorization Act of 2012, which stemmed from previous NDAAs and the Bush-era post-9/11 CT doctrine. President Obama’s version of the NDAA expanded military indefinite detention powers. Specifically, NDAA Section 1021 states, “Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in sub- section (b)) pending disposition under the law of war” (NDAA, 2012).
This provision of the NDAA permits the military to detain anyone who supports terrorists, and anyone engaged in or supporting hostilities against the US. Further, Section 1021 states such persons can be detained without trial until the end of hostilities.
While this seems extreme, it was ratified by Congress and passed into law so the President could effectively prosecute the global war on terrorism. In response to public outcries, the NDAA of 2013 supposedly removes indefinite detention language; however, the final NDAA of 2013 has yet to be passed and disseminated to the public.
President Obama’s drone strike program to kill high-value terrorists has been viewed as an unchecked power in the name of national security. The idea is to kill enough terrorists to break the will of others and discourage future membership. This program has been considered a controversial but necessary cog in the counter-terrorism campaign.
The cost of the President maintaining this degree of unchecked power is that democratic principles are more vulnerable to scrutiny of being hypocritical; that America’s credibility is undermined by an absolute power. Even if the drone program is legal, does it usurp democracy? The thought of one man in the government making life or death choices on behalf of an entire country does not necessarily equate to the founding father’s principles. If we are a country “by the people and for the people,” the people should know details of this program so they can make an informed decision on which candidate is best suited to manage it. If details of the program are kept secret, then the appearance of abuse and corruption may overshadow the altruistic purpose to defeat terrorism.
Former CIA Director General Hayden articulates this best, “This program rests on the personal legitimacy of the president, and that’s not sustainable.” Additionally, the President has set a new international precedent that other countries will most likely use to further their agenda.
The benefits of the President maintaining this degree of power are that he can make timely decisions and takes responsibility for each strike. The President is the only person suitable to take responsibility for these drone strikes. He has the highest access to relevant, real-time intelligence, which provides the necessary criteria for a drone strike. If a committee makes these decisions, then a terrorist may move before the order is given, which does nothing to reduce the threat. Terrorism is too fluid and flexible for a long drawn out decision-making process. In order to disrupt terrorist support networks and destroy their leadership, justice and action must be swift, fluid, and flexible.
The examples from President Washington to President Obama demonstrate that national emergency situations are difficult to prepare for and extreme methods to resolve them, even if they cause temporary harm to our way of life, are necessary. The President’s emergency powers should go as far as our laws and acceptable morals allow them to go to effectively combat terrorism and resolve other national emergencies. Historical precedent has demonstrated the Executive Branch is the only flexible portion of the government that can react quickly enough to preserve the Constitution, defend our national security, and uphold the principles of civil liberties.
After 9/11, Americans supported a swift and effective response from the President to combat AQ and their supporters. However, we did not understand the consequences of unchecked sweeping policy changes. With good intentions, the US Government reacted impulsively to thwart perceived threats, creating several unchecked Presidential powers that needed proper oversight.
In 2013 the fog of war is not as thick as it was in 2001, and our national resources are better poised to hinder terrorism globally.
However, every emergency power must have proper oversight and technical control from external sources in order to prevent questionable counterterrorism activities.
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