Let Us Hope Wider War Is Avoided, but the Turks Did Provide a Lesson in Constitutionalism, If Nothing Else

The likelihood of military action between Iraq and Turkey is quite frightening. I hope that cooler heads prevail and that the Iraqi Kurdish leadership makes it clear that they do not support at all the fanatical campaign of the PKK, regardless of the injustices to which Turkish Kurds have been subjected. There are other solutions than terrorism against innocent people, of which the PKK is guilty. I hope that the various parties find a solution to the PKK problem, as well as to the issue of the rights of Kurds to their own language, without igniting the region in a wider war.

That said, the Turkish government has at least shown the strength of their parliamentary system, in contrast to those who argue for unlimited powers of the US president to make war: “Turkish MPs today gave the green light to military operations in northern Iraq…

Imagine that. They actually had a parliamentary debate before approving military action. How novel.

9 Responses to “Let Us Hope Wider War Is Avoided, but the Turks Did Provide a Lesson in Constitutionalism, If Nothing Else”

  1. To be fair, they did discuss Iraq in Congress before barging in. But Bush does insist that he can do whatever he wants without the approval of any other branch of government, which is about as UnAmerican as you can get.

  2. Not only did Congress authorize the use of military force in Iraq, but the Bush administration also lost cases in the Supreme Court, such as Hamden, and went back to Congress for further authorization as directed by the Supreme Court (Military Commissions Act). As the William Jefferson case made clear, there are boundaries with respect to Executive authority with respect to Congress, and boundaries with respect to Congressional authority with respect to the Executive. There are no examples of this administration ignoring a Supreme Court decision (as opposed to say, Andrew Jackson), though there are many, many examples of the Supreme Court overturning as unconstitutional laws crafted by Congress – the most transgressive branch. I challenge Andy H. to name instances of the administration engaging in activities for which “the approval of any other branch of government” is required, where they have not obtained that approval.

  3. wgsalter: The Constitution expressly provides that Congress has the power to declare war, and also that the federal government has no powers not expressly granted it. It is disingenuous to argue that Congress has the right to give up its power to the President; it has no such power.

    The decision to invade Iraq was the President’s and it was and is an unconstitutional action.

    Also, the doctrine of the unitary presidency promoted by Bush et al. is exactly the sort of thing to which Andy is refering. So too are the ignoring of habeus corpus, warrantless domestic spying, torture, and the like.

  4. Mr. Steele: You are correct: the Constitution does expressly grant the Congress the power to declare war, and also to punish piracy and felonies on the high seas, and also to make rules concerning capture on land and water. As for the federal government’s powers, I also agree that it has limited powers, but the definition of them includes “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”, which, to be fair, is necessary to interpret – and reasonable men of good will can disagree on where the line falls. I argue that the Bush administration properly went to Congress and Congress EXERCISED its power by authorizing President Bush to invade Iraq – and therefore, whatever one’s opinion of the policy, it is absolutely constitutional. The “ignoring of habeus corpus” claim is belied not only by the fact that habeus corpus is conditional (both in terms of constitutional AND statutory application), but when the administration has been found to fall outside of the Supreme Court’s interpretation, it has immediately accepted and followed the Court’s dictates (note the Military Commissions Act as I cited, above.) As for “warrantless domestic spying”, there is no privacy expectation in the law for hostile alien communications, nor any need under the Fourth Amendment to produce a warrant to intercept them, unless you choose to excise the term “unreasonable” from the text, and otherwise to completely ignore how the actual authors interpreted the words they wrote, as practiced in the War of 1812, for example. Mr Madison did NOT seek a warrant to intercept British field communications as they marched on Washington to burn the White House. With respect to torture, I agree that it is against the Geneva Conventions and the uniform code of military justice. When it has been alleged, it has been investigated; where it has been proven, it has been punished. WHAT constitutes torture and WHAT constitutes aggressive interrogation techniques is a legal issue I am confident will be adjudicated in the near future, and as in every single other instance to date, I am confident that the administration will adhere to the rulings of our courts. And finally, the unitary executive. Well, where else do you think executive powers reside under the Constitution? Article 2 is not ambiguous on this point. It’s first sentence, in it’s entirety, reads: ” The executive power shall be vested in a President of the United States of America.”

  5. Congress has no power to delegate its powers to the President.

    Federal government intercepts have been blanket interceptions. In the AT&T case *all* internet traffic was given to NSA, and searched for content, according to whistleblower Mark Klein.

    Unitary presidency, at least as promoted by the Bush administration, is more than keeping all executive power within the presidency. Bush advisor John Yoo argued that Congress has no oversight over Presidential decisions to use military force, torture, to suspend habeus corpus, and whatnot.

    The Consititution is not ambiguous — the President is not a King.

  6. Mr Steele:
    Congress does not delegate it powers when it authorizes military force – it is expressly the province of the Congress to do so, and expressly the province of the Executive to wage war once authorized by Congress, or even without Congressional authorization in the case of invasion or rebellion (as in the Civil War). I accept that certain types of domestic surveillance are not permitted without a warrant, but others require none; for example, listening to radio wave transmissions requires no warrant, nor does reading the personals in the newspaper – though both might be used for private communications (in the same manner as if I proposed to my wife via skywriting). There is no law on the internet yet, and Mr Klein’s allegations should – and will – be thoroughly vetted. Then we’ll know what actually happened, and a legal judgment can be reached on whether those practices were inside or outside of the line. As for Mr Yoo, there were other attorneys on the other side of those questions, also within the Bush administration. The only thing that matters is not what someone advised or interpreted, but what actually happened, and how that is adjudicated. But with respect to separation of powers, the Supreme Court cannot execute the laws, nor the Executive legislate them, nor the Congress interpret them. No law that Congress passes – even unanimously – can take away the President’s power as Commander-in-Chief, or as the sole Executive organ of the Federal government. Congress can make laws, and often overreaches it authority when it does so, but it cannot – alone – revise the Constitution. I suggest that even a cursory reading of Supreme Court decisions, even during the Bush administration of the last seven years, would show that the Congress oversteps its bounds very regularly. Constitutional habeus corpus rights do NOT apply to prisoners of war (legal enemy combatants), and the growing body of law on ILLEGAL enemy combatants has been conformed with – or, as in the case of Hamden, when found to be wanting, the STATUTORY habeus corpus laws have been changed. I say stautory, because foreigners not resident in this country have no rights under the federal Constitution whatsoever. I wish that the people of eastern Europe, for the seventy years they lived under communism, could have claimed a right to free speech, press, assembly and worship – but they couldn’t, because they are neither Americans nor resident in America. Even American citizens abroad have no Consitutional rights with respect to other governments – try telling the Chinese you have a right to a jury trial by your peers in Beijing. So the notion that illegal enemy combatants have MORE rights than say German or Japanese legal combatants held in US POW camps in WWII is, shall we say, not good law. That doesn’t make the President a King, nor does it make the Congress more than a co-equal of the President, though with distinct and separate powers.
    My strong sense is that your issue is with policy, and that it troubles you how powerful the presidency really is, when you see that power weilded by someone with whom you disagree. But let’s get real: there is no prospect, none, zero – that George W. Bush will do anything on January 20th, 2009 except walk peacefully away from that power, which will be turned over not by him but by you and me to whomever comes next. Kings don’t do that – only democratically elected officials do.

  7. Mr Steele:
    One more point: It was the CONGRESS, not President Bush, that restricted habeus corpus rights and the courts that could hear related challenges, specifically through the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. Article II gives Congress the right to suspend habeus corpus when “the public safety may require it”, and Article III includes this passage: “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” Both sound like prerogatives of Congress to me.

  8. Tom G. Palmer

    Just a quick note. I think that wgsalter has made a mistake. The Attorney General attempted to suspend habeus corpus without any act of Congress governing US citizens. The issue had been debated in Congress (on a more limited basis) and rejected during the very, very limited discussion of the USA PATRIOT ACT.

  9. Tom,

    It’s been many years since we’ve crossed paths, so first let me say how much I admire your work, even if there are specific issues on which may may – of course – have different perspectives. I think Cato has tremendous positive impact and I’m a strong supporter of the rule of law and questioning the overreach of governmental power, everywhere but nowhere more so than right here at home. I wish you well.
    On the specific matter at hand, please give me more details on where you find that the the AG suspended habeus. Are you referring to the original treatment of Jose Padilla? Perhaps, but he had sufficient access to the courts to challenge (successfully) his treatment. There are not – to my knowledge – any Americans be held by Americans anywhere without full recourse to habeus. On the other hand, there are aliens who are being held without habeus, outside of the US, which I contend is legal if they are being held is as a legal combatant (i.e., uniformed service member) or as an unlawful enemy combatant. I would contend that it is perfectly legal (and appropriate) to hold legal belligerents without habeus within the US as well (e.g., POW camps), for the duration of hostilities. It’s when we have the circumstance of unlawful belligerents that things get complex. If resident in the US, the courts have afforded habeus, while outside the US, claims to habeus have been highly constrained. I would really appreciate if you could afford me the specific reference of the AG performing an overt act that suspended habeus – always willing to be learn from my mistakes. And of course, very interested in what you think should be the treatment of unlawful enemy combatants.


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