Enemy Combatant?

Oct 072007
Authors: John A. Straayer

What if, and of course this is a huge “what-if,” Mr. Cheney happened to see a copy of the Collegian editorial, which contained the naughty four-letter word?

What if he didn’t like it, even though he’d used that word himself in the United States Senate but believed that directing it at the Commander in Chief in a time of war was not the same as using it to show disrespect to an ordinary politician?

What if in his judgment, it showed some lack of full support for the Commander in Chief and thus for the war effort, and what if in his view that gave some aid and comfort to the enemy who also might have read the editorial?

And what if Mr. Cheney communicated his views to the Commander in Chief, who normally believes what the V.P. says, and then the Commander-in-Chief decided that J. David McSwane’s words gave aid and comfort to the enemy and thus qualified him as an “enemy combatant” – not an “unlawful combatant,” as mentioned in the Geneva Convention, but an “enemy combatant” which is not mentioned?

Then what?

In one of a growing flow of publications focusing on the efforts of Mr. Cheney and Mr. Bush to strengthen the presidency to the level of power enjoyed by the Nixon administration in which Cheney served, Frederick Schwarz of the Brennan Center for Justice at the New York University School of Law and Aziz Huq and the Brennen Center, characterize this administration’s efforts to expand the power of the executive and marginalize the role of the Congress and courts as “monarchial.”

We’ve witnessed the “imperial presidency” in the past; now the push, Schwarz and Huq say, is to go further, and infuse the Commander in Chief with king-like, unquestioned, and unchecked or balanced, authority.

The administration argument and strategy are simple: we are at war, the president is the Commander in Chief and the extent of his constitutional authority in a time of war is defined by the Justice Department Office of Legal Council which is a part of the executive branch and is mightily influenced by the views of the vice president’s chief staffer, David Addington who, along with Cheney, has long itched to expand presidential power.

This office writes memos that define the president’s constitutional power and thus constitute the “law of the land”, in the President’s judgment. The memos are secret.

If the Commander says the war exists, which may be here at home or abroad, it exists. If he deems someone an “enemy combatant”, that person is an “enemy combatant”.

And now what?

Here are a few lines from Schwarz and Huq’s 2007 book “Unchecked and Unbalanced; Presidential Power in a Time of Terror.”

“Richard Nixon first advanced a claim to unchecked executive authority over national security matters, claiming imperiously that ‘when the President does it, that means it’s not illegal'” (p.154).

“. the Bush Administration contended that the president could designate any one, U.S. citizen or foreigner, anywhere in the world as an “enemy combatant”, and detain that person indefinitely without any independent review of the president’s determination.” (p.142).

“In the name of national security, the Administration of President George W. Bush claims that the Constitution’s structure of separated branches sharing powers is inadequate. It claims we must place unfettered, absolute trust in the executive branch” (p.200).

“James Madison wrote in the Federalist Papers . the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny” (p.202).

Well, then what?

What would happen to J. David McSwane? Would he be able to consult an attorney or request a writ of habeas corpus? Would he be subjected to “Extraordinary Rendition” and sent to a black hole foreign prison, as have others, then tortured?

Would there be petitions on the plaza demanding his release, or at least his right to see a lawyer? Would Collegian advertisers place ads in the paper demanding that the government honor what they, and he, thought were his constitutional rights? Would talk radio entertainers rail about abuse of power?

Would we ever see McSwane again?

What now stands in the way of what seems such a far-fetched episode?

A Congress that sometimes backs the President blindly for partisan reasons or for fear of appearing “soft,” and at other times is simply stonewalled by an executive claiming authority to do what it wants for reasons which are secret?

The courts, which the executive claims have limited or no jurisdiction over cases involving national security and, in any case, are populated by many former administration lawyers?

An American public whose concerns about concentrated power rise and fall more in relation to their personal well-being than in defense of constitutional principle?

For the framers of our national constitution, human nature is such that we are all potential tyrants, and the preservation of liberty is inextricably linked to successful checks on governmental power. They should know; they lived close to monarchial power.

Generations which ignore the wisdom of these old guys who designed our system a couple of hundred years ago do so at their peril – and this generation is no exception.

Are you reading our constitution? Are you studying our history?

Stay awake.

John A. Straayer is a professor of political science. His column appears occasionally in the Collegian. Letters and feedback can be sent to letters@collegian.com.

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