A fellow DUer suggested I post --Whaddya say about Const. Law

[kurtyboy]

I wrote a midterm for my ConLaw class a few weeks ago. We had to produce a condensed (and rushed!) SCOTUS ruling on a hypothetical case entitled United States v. Bush (2005) where the President is being investigated by a Special Prosecutor for violations of the War Crimes Act--which provides criminal penalties (including capital punishment) for US citizens who violate the Geneva Conventions.

I had to hold my nose, but my ruling read this way:

United States v. Bush (2005)

The Court is asked to rule on several arguments against allowing an investigation into the legality of certain military and intelligence operations in the so-called “war on terror.” The Fourth Circuit Court of Appeals has ruled that the President may exercise his executive immunity and is therefore exempt from prosecution in this matter. Counsel for the petitioner (the Special Prosecutor appointed at the request of the Attorney General) holds that the George W. Bush, the 43rd President of the United States, bears the ultimate responsibility for illegal actions taken by individuals in the field of battle and also in intelligence efforts to ascertain operational plans of the enemy—actions that are, in the eyes of the petitioner, in violation of the Geneva Conventions and are therefore prosecutable in the territory of the United States under the mandate of the War Crimes Act (WCA) (18 U.S.C. § 2441). Further, the petitioner argues that the Office of the President is uncooperative with the investigation and this “foot-dragging” is tantamount to an obstruction of justice.

The respondent, the President of the United States, counters on three separate bases that the criminal investigation by the Special Prosecutor should not continue: (1) The Court cannot review this case because to do so would violate the separation of powers doctrine; (2) regardless of the justiciability of this issue, the WCA is an unconstitutional limit on presidential war powers; and (3) even if the Court finds the WCA to be constitutional, the President must be afforded executive immunity from prosecution.

The President’s first argument concerning the separation of powers offers a rationale arising from an argument similar to President Truman’s in Youngstown (1952): In that case, the President argued that unilateral executive actions are justified out of an inherent aggregate power derived from Article II (Youngstown, 159) whenever the President deems national security is at risk. The President of the United States (POTUS) is constitutionally vested with the whole of the executive power of the Union and he is furthermore, explicitly, the Commander in Chief of the armed forces. While scholars may argue that war-making power is constitutionally reserved to the Congress in Article I, § 8, it is also true that Congress has authorized presidentially-directed military action in both Afghanistan and Iraq—unlike the case in Youngstown, where the President had no such congressional mandate. The President must by necessity be allowed maximum latitude to faithfully execute the will of Congress—and the judiciary cannot interfere with the constitutional responsibilities of the Commander in Chief, especially in matters regarding war-making.

Moreover, the President contends—on grounds closely related to those in the first argument—that the WCA is by its very nature unconstitutional. Because the Congress has authorized sweeping power for the President—for instance, “ll necessary and appropriate force” in the Authorization for Use of Military Force (AUMF) (Hamdi, 163) and to use military force, “as he determines to be necessary and appropriate” in the Iraq War Resolution (IWR)—the Congress cannot also demand that the President adhere to laws that would limit the number of options he or she may consider. To do so would put the President in the impossible position of having to choose between two contradictory instructions from Congress. If such a choice is forced, as it seems to have been here, adherence to the WCA must naturally be the least favorable option, since the President is constitutionally charged with the responsibility of Commander in Chief, and his sworn paramount duty is the protection of that very same document and the Republic it establishes. Any congressional restriction of the President’s judgment and his/her ability to make congressionally-authorized war is clearly at odds with this grave responsibility.

Finally, the President makes a strong case that even if the Court should disagree with the first and second arguments, certainly the third argument—that the President enjoys executive immunity from prosecution—is valid. The historical basis for the immunity is clear, and precedent allows for no other course than to respect the presidency in such a way that no inhibitive threat of prosecution will alter a president’s best judgment in his or her office. Additionally, immunity must be extended to individuals even after they leave the Office of the President of the United States. Otherwise, timidity and temperance will characterize the actions of all future presidents, and the constitutionally-required boldness and strength of the office will forever be diminished.

We are inclined to disagree with the President’s first argument that the doctrine of separation of powers would preclude us from rendering a decision in this case. This is clearly a dispute between the executive and the legislative branches over whether a law, the WCA, is constitutional. In fact, the president makes that very case in his second argument. As such, the judiciary is the only constitutional venue where this dispute may be settled. Article III, § 2 clearly delegates this judicial power, “extend to all cases, in Law and Equity, arising under this Constitution.” Nevertheless, this court will proceed with great caution, recognizing the President’s claim that his role as Commander-in-Chief of the armed forces is out of necessity insulated from the most rigorous legal review. But we also note that the President could have avoided any legal scrutiny in the first place by ordering the Attorney General to remove the Special Prosecutor on the grounds that the SP was interfering with the President’s executive duties (Morrison, 134): That the President chose otherwise is taken by this Court to be a de facto admission of justiciability on this issue—and also a tacit acknowledgment that a separation-of-powers problem does not exist between the Executive and the Legislative branches, at least in the case of the Special Prosecutor Act.

The Court finds the President’s second contention to be more compelling than the first. To any reasonable examiner, the language of the congressional authorizations for the use of military force in Iraq and Afghanistan is essentially unlimited in the scope of action the President may take in his prosecution of war. The phrase in the IWR referencing the President’s use of force, “as he determines to be necessary and appropriate,” is particularly terse in this regard. Congress divests its interest in the “details” here—the President is vested with sole judgment in the war’s prosecution by such language, and to rule out any option the President might exercise in his aggregate role of Commander-in-Chief and sworn protector of the Constitution would be to enter into the sort of logic that allows the Constitution to destroy itself.

The WCA, as written, would wrongly limit the President’s options. If enforced against the President (we do not consider any of the President’s subordinates in this ruling), the act would have the effect of forcing the President to review every last military order for compliance—not just with the WCA, but with the several conventions and treaties to which the United States is signatory. To do so is certainly possible, but not necessarily advisable to a military commander looking to make the most expeditious choices for his or her charges—it is simply too time-consuming and “inhibitive” (to use the President’s description). For example, military acts that might be both legal and advisable would nonetheless suffer from a President’s concern over the whim of federal criminal courts.

Furthermore, even if a military act is in clear violation of the WCA and the treaties it mentions, the act may nevertheless be the only appropriate way to protect the Constitution and the Republic—what would citizens have the President do then? Obviously, what has been said about the Bill of Rights is also true of the Geneva Conventions—they are “not a suicide pact”—and the President must ultimately act by siding with the Republic’s survival, treaties notwithstanding.

To summarize, there is a separation-of-powers issue that is approached in this argument, but the issue is overridden by the logical difficulties of the Congress authorizing a nearly unlimited palette of military options for the president on one hand, while simultaneously restricting the president’s options on the other. The President’s constitutional oath must prevail over this logical contradiction—his or her judgment must constitutionally come first.

But the President’s first two arguments need not have been addressed when we’ve considered his third contention: That the POTUS enjoys executive immunity from prosecution at least as long as he or she is bound to exercise the power of the chief executive. This principle is based upon the notion that in order to “faithfully execute the Office of the President of the United States” a sitting president must have an utterly complete capability to act in any manner he sees fit, without fear of legal interference. This principle was cited in both Mississippi v. Johnson (141) and Nixon v. Fitzgerald (142) regarding civil immunity. The court now extends the same immunity to criminal prosecutions, with precisely the same rationale; if the President can expect legal criminal challenges to his or her decisions, with the attendant criminal penalties, the President will naturally shy away from making the truly difficult choices that any chief executive is expected to make—right or wrong. Such limitations would render the office of the President fundamentally impotent in the eyes of the framers and in our estimation as well. However, as we have noted in the past;

“Absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment (Nixon v. Fitzgerald).”

The President ought to be allowed to exercise legally unfettered judgment in his or her execution of duties.

The decision of the Fourth Circuit Court of Appeals is affirmed.

So, I say the President will always be allowed complete and unfettered latitude in war-power issues (and this will be extended to diplomatic issues...)--this Court simply does not have the will to force the rule of law onto the Chief Executive when he is carrying out official duties.

I got the highest mark in the class--but I might be a washed up. Whaddaya think?

[Hissyspit]

1. The IWR is full of all kinds of B.S. It's embarassing. Don't know how

that would affect the argument...

[Kenneth ken]

2. it's somewhat over my head

but I think you make good arguments and conclusions. What I ultimately come away with is that it is the responsibility of Congress to set whatever boundaries they feel necessary so as to check the complete and unfettered latitude conveyed upon POTUS, and further to provide vigilant oversight to ensure POTUS doesn't exceed the authority granted.

In this particular case, you seem to be critical of the latitude Congress allowed, which ought to serve as a caution for future Congress' in issuing similar resolutions. The latitude allowed further limits the capacity to perform its overisght responsibility.

It seems to me that if the IWR is written sloppily enough, it conveys to POTUS the ability to argue that "elements in (Iran/Suria?Saudi Arabia/Kuwait (pick any country) ) are supporting the resistance in Iraq, so the fight must be taken there as a logical extension of the original IWR.

[aquart]

3. Are you recognizing the press as a branch of government?

With investigative powers? The scrutiny of a Republican-controlled media is, shall we say, blindfolded?

Also, wasn't the civil immunity to prosecution withdrawn so that Clinton could be sued? So there is a newer precedent than the ones you cited.

"The court now extends the same immunity to criminal prosecutions, with precisely the same rationale; if the President can expect legal criminal challenges to his or her decisions, with the attendant criminal penalties, the President will naturally shy away from making the truly difficult choices that any chief executive is expected to make—right or wrong." But the rationale was superceded to allow Paula Jones to sue Bill Clinton. So I don't see how you can argue it, and I especially don't see how you can use that discarded rationale to EXTEND the immunity. I would be so much more inclined to use Jones v. Clinton to hoist them with their own petard, but that's just me.

Here's my biggest problem. You seemed to be assuming that the Executive is a superior, not an equal branch of the US gov't. The job of the Executive seems, in your view, to be that of omnipotent overlord, rather than a servant of the people charged with the execution of the people's laws. These are the laws passed by the legislative branch. You have also given the POTUS the right to violate treaties at will, as if being untrustworthy is more valuable to a state than steadfast reliability. The quote about the Bill of Rights not being "a suicide pact" is part of an atrocious attempt to abrogate those rights, and it's appalling that you quoted it in your decision. Treaties are entered into to protect nations in various ways. To assume a treaty signed in good faith is "a suicide pact" assumes that we stand alone in the world with no one to trust. Which, if this attitude is used to govern, is exactly what we will be.

Your professor liked this decision? What on god's earth were the others?

[kurtyboy]

7. The argument in my case relates to OFFICIAL duties--in Clinton v. Jones

it was unofficial actions. Different cases, on the whole....

[punpirate]

4. Well, that was nice and concise...

... in favor of unlimited power of the executive, which the separation of powers presumes to limit.

As for the ability of the Executive to limit investigation, see the later ruling in Nixon v. US with regard to the Executive's power to withhold material evidence, i.e., tapes recorded in the White House at public expense.

With regard to the WCA and the President's requirement to review before acting, the Executive is required to uphold all law. It is part of the sworn oath of the Executive and all his appointees. With particular regard to Art. VI of the Constitution, the Geneva Convention is the supreme law of the land, and must take precedence over any consideration of Executive privilege in or out of wartime.

As for the third contention, the clear intent of such a posture is that the Executive's ultimate defense for egregious and illegal behavior is defense of the nation, and that the court cannot intervene in any decisions made by the Executive in the defense of the nation. This is sophistry, since it presumes that one aspect of the Executive's office overrides the sworn obligation to faithfully execute the laws of the nation as Constitutionally defined. In terms of the defense of the nation, the law is narrowly drawn. The "war on terror" has been declared only by the Executive. Congress has made no such formal declaration, and could not logically do so.

As for Nixon v. Fitzgerald, it must be obvious, in looking at the historical record, that unlimited power afforded the Executive was not sufficiently kept in check by those forces of Congress and the press to prevent illegality. In fact, the Executive used illegal prerogatives to thwart the attentions of the press and to mislead Congress and agencies of the Executive branch. By definition, unlimited power encourages abuse.

Indeed, the separation of powers clauses explicit in the Constitution demand that the courts intercede when the law of the country is compromised by a gross usurpation of power by another branch, and particularly by the Executive, as the Founders clearly intended for the Constitution to limit the powers of same, in hopes of preventing the ascension to power of any individual hoping to accrue to himself aristocratic or king-like power.



Sorry, no time for detailed citations, but you get the idea. The whole notion of the Constitution and the separation of powers is upended by your argument (essentially the same one used by the Bushies) that war fundamentally changes the Constitutional balance of power. If that is so, any declaration of vague threat or redefinition can be used by the Executive to nullify or ignore existing law. The primary example of that is the arbitrary designation of detainees as "enemy combatants," a phrase which has no legal meaning in any existing law, national or international, for the purpose of enabling the Executive to evade due process and international law for specious purposes.

The great problem in adjudicating this issue lies in the fact that it is, essentially, without precedent. No president has yet exceeded the boundaries to the extent that Bush has. The closest example was the court's deference to the FDR administration's assertion that Japanese-American citizens could be locked up on the basis of race, in violation of all law regarding collective punishment and due process, a court decision which was revisited decades later and found to be suspect.

Cheers.

[shraby]

5. I'm just a lay person, but since

the Constitution is the supreme law of the land and the President has taken an oath to uphold the Constitution, I would think that in light of the fact that the Geneva Convention is a part of the Constitution, he would have to abide by it. If he doesn't want to follow the rules, he would first have to nullify the Geneva Convention. Otherwise he is in flagrant violation of the laws of the land.

[punpirate]

6. Oh, I agree...

... with that aspect. That's the point about Article VI. But, more important is the notion that the Executive can abridge any aspect of law simply by fiat and excuse any illegality with defense of the nation or executive privilege. That's plain perfidy. In fact, the rulings surrounding Watergate clearly indicate that executive privilege can't be used to subvert law, and that the Executive is equally bound by law.

Cheers.

[punpirate]

8. Missed the time allowed to edit my reply...

... but I also wanted to mention that it seems, from your argument, that you seem intent to rely on prior decisions, as if the court could not somehow revisit the decisions of earlier courts. Were this the case, the Warren court in 1954 would have been bound to not hear Brown v. Board of Education on the basis of a prior decision in Plessy v. Ferguson.

In imitation of other justices, I would assert it is the responsibility of the court to rule on fundamental attacks on the structure of the Constitution itself, even if there is no clear precedent in law to do so, in much the same way as the early Marshall court sought to assert judicial equality with the other branches via the ability to strike down law as unconstitutional, rather than simply rule on cases based on the law presented.

From Nixon onward, Republican presidents, particularly, have sought to "regain" purported lost executive power (this is a stated aim of the Bushies, according to Cheney). In fact, no power has been "lost" and such attempts have been actually to increase, disproportionately, the power of the Executive over the other two branches. The only way in which balance can be restored is for either or both the Congress or the courts to reassert their functional power.

In the case of the "war on terror," the Constitution itself is clear--it is either war on a nation state as formally declared by Congress, or it is a criminal offense. No war on terror has been formally declared by Congress (nor could it be); therefore, terrorist acts on US soil are criminal acts and should be treated as such, and existing law should be followed.

Cheers.