Abstract
During the summer of 2004, a series of internal Bush administration memos and reports became public that detailed a variety of justifications for the administration’s detention, handling, and interrogation of various suspects and combatants captured in the war on terrorism and the war in Iraq. Most of these documents were authored or supervised by administration lawyers including White House Counsel Alberto Gonzales, William J. Haynes II, general counsel to the Department of Defense; David Addington, counsel to Vice President Dick Cheney, Assistant Attorney General Jay Bybee, head of the Department of Justice’s Office of Legal Counsel, and John Yoo, deputy assistant attorney general in the Office of Legal Counsel.
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Notes
Quoted in James P. Pfiffner, “Torture as Public Policy,” Working Paper of the School of Public Policy, George Mason University, 2004, 1.
From Antonio M. Taguba, “Article 15–6 Investigation of the 800th Military Policy Brigade,” February 26, 2004, Part I, Sec. 2, No. 5; quoted in Pfiffner, “Torture as Public Policy,” 2.
Jay S. Bybee, assistant attorney general, U.S. Department of Justice, “Memorandum for Alberto R. Gonzales,” August 1, 2002. Available at <://www.washington post.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf> Accessed on January 10, 2005. On December 30, 2004, the Justice Department issued a new memorandum, authored by Acting Assistant Attorney General Daniel Levin, that repudiated the administration’s August 2002 memorandum, specifically rejecting the earlier, narrow view of torture that attempted to defend some acts otherwise considered under the rubric of torture. News reports attributed the change at least in part to Alberto Gonzales’s impending confirmation hearings for attorney general. There was, however, no refutation or reconsideration of the administration’s views on presidential power in the 17page memo. R. Jeffrey Smith and Dan Eggen, “Justice Expands ‘Torture’ Definition,” Washington Post, December 31, 2004, A1.
See Garry Wills’s brilliant demolition of the myth of three coequal branches in A Necessary Evil (New York:Simon & Schuster, 1999), Chap. 5. See also Robert J. Spitzer, President and Congress (New York:McGraw-Hill, 1993), 13–6.
Harold Hongju Koh, The National Security Constitution (New Haven, CT:Yale University Press, 1990), 75–6.
Gaillard Hunt, ed., The Writings of James Madison, 9 vols. (New York:G.P. Putnam’s Sons, 1900–1910) 6:248.
Louis Fisher, Presidential War Power (Lawrence, KS:University Press of Kansas, 1995), 9.
The prodigious literature confirming this understanding includes Clinton Rossiter, The Supreme Court and the Commander in Chief (Ithaca, NY:Cornell University Press, 1976; first published, 1951); Edward S. Corwin, The President:Office and Powers (New York:New York University Press, 1957), Chap. 6; Clinton Rossiter, The American Presidency (New York:New American Library, 1960), 22; Louis Henkin, Foreign Affairs and the Constitution (Mineola, NY:Foundation Press, 1972); Charles A. Lofgren, “War-Making Under the Constitution,” Yale Law Journal 81 (March 1972):672–702; W. Taylor Reveley, War Powers of the President and Congress (Charlottesville, VA:University of Virginia Press, 1981); Edward Keynes, Undeclared War (University Park, PA:Pennsylvania State University Press, 1982); Jules Lobel, “Covert War and Congressional Authority,” University of Pennsylvania Law Review 134 (June 1986):1035–1045; Donald L. Robinson, “To the Best of My Ability” (New York:W.W. Norton, 1987); David Gray Adler, “The Constitution and Presidential Warmaking,” Political Science Quarterly 103 (Spring 1988):1–36; Francis D. Wormuth and Edwin B. Firmage, To Chain the Dog of War (Urbana, IL:University of Illinois Press, 1989); Michael J. Glennon, Constitutional Diplomacy (Princeton, NJ:Princeton University Press, 1990); Koh, The National Security Constitution; Spitzer, President and Congress; Fisher, Presidential War Power; Louis Fisher, Congressional Abdication on War and Spending (College Station, TX:Texas A & M University Press, 2000). Some of these writers disagree about the legality or propriety of modern expansive executive war making, but all broadly agree in their view of what the founders intended.
Haig, 291–2 cites Chicago & Southern Air Lines v. Waterman S.S. Corp, 333 U.S. 103 (1948); Harisiades v. Shaughnessy, 342 U.S. 580 (1952); and Zemel v. Rusk, 381 U.S. 1 (1965).
Louis Fisher, “Congressional Checks on Military Initiatives,” Political Science Quarterly 109 (Winter 1994–1995):756–8.
Rossiter describes how “the Supreme Court, in deciding several hundred cases involving the scope of the national war powers, has interpreted the President’s status and authority as commander in chief.” The Supreme Court and the Commander in Chief, v.
Adam Liptak, “Legal Scholars Criticize Torture Memos,” New York Times, June 25, 2004, A14.
Quoted in Dana Milbank, “The Administration vs. the Administration,” Washington Post, June 29, 2004, A21.
Daniel Levin, acting assistant attorney general, Office of Legal Counsel, U.S. Department of Justice, “Memorandum for James B. Comey, deputy attorney general,” December 30, 2004; accessed at <://www.usdoj.gov/olc/dagmemo.pdf> on January 17, 2005; Eric Lichtblau, “Gonzales Speaks against Torture at Senate Confirmation Hearing,” New York Times, January 7, 2005, A18.
Eric Lichtblau, “Broad Influence for Justice Dept. Choice,” New York Times, November 21, 2004, 30.
John Yoo, deputy assistant attorney general, Office of Legal Counsel, U.S. Department of Justice, “Applying the War Powers Resolution to the War on Terrorism,” testimony before the Subcommittee on the Constitution, Committee on the Judiciary, U.S. Senate, April 17, 2002.
Dana Milbank, “In Cheney’s Shadow, Counsel Pushes the Conservative Cause,” Washington Post, October 11, 2004, A21.
Liptak, “Legal Scholars Criticize Torture Memos” Adam Liptak, “How Far Can a Government Lawyer Go?” New York Times, June 27, 2004, 4–3; Dana Priest and R. Jeffrey Smith, “Memo Offered Justification for Use of Torture,” Washington Post, June 8, 2004, A1.
Milbank, “In Cheney’s Shadow,” A21.
“Prepared Remarks of Attorney General John Ashcroft,” delivered before the Federalist Society, November 12, 2004. Accessed at <http://www.usdoj.gov/ag/speeches/2004/111204federalist.htmgt; on February 1, 2005.
Robert J. Spitzer, “The Constitutionality of the Presidential Line-Item Veto,” Political Science Quarterly 112 (Summer 1997):261–84; “Lost and Found:Researching the Second Amendment,” Chicago-Kent Law Review 76 (2000):349–401; “Saving the Constitution from Lawyers,” in Politics and Constitutionalism, ed., Spitzer (Albany, NY:SUNY Press, 2000), 185–225. In these writings, I argue that law reviews have cultivated two wayward constitutional theories:that the president possesses a constitutionally based item veto, and that the Second Amendment protects an individual right to bear arms. Both of these theories originated and were cultivated in the pages of law reviews, and later found their way into political and legal debates.
John C. Yoo, “The Continuation of Politics by Other Means:The Original Understanding of War Powers,” California Law Review 84 (March 1996):170–305. Yoo’s arguments from his 1996 article also appear in a subsequent article (with an unintentionally ironic subtitle):“CLIO at War:The Misuse of History in the War Powers Debate,” University of Colorado Law Review 70 (Fall 1999):1169–222.
Yoo, “The Continuation of Politics,” 170.
Among the most aggressive statements of the modern strong presidency argument are:Gordon S. Jones and John A. Marini, eds., The Imperial Congress (New York:Pharos Books, 1988); L. Gordon Crovitz and Jeremy A. Rabkin, eds., The Fettered Presidency (Washington, DC:American Enterprise Institute, 1989); Terry Eastland, Energy in the Executive (New York:Free Press, 1992). None of these sources offers arguments about the CIC power on the scale of Yoo. The broader contours of the debate over competing views of presidential power are analyzed in Spitzer, President and Congress, Chap. 7; Raymond Tatalovich and Thomas S. Engeman, The Presidency and Political Science (Baltimore, MD:Johns Hopkins University Press, 2003).
Neither Yoo’s article nor any other secondary source is cited in the Report, but his arguments are distinctive, and because they are repeated in the Report’s arguments, and because of Yoo’s key role, I assume a connection.
Louis Fisher, “Unchecked Presidential Wars,” University of Pennsylvania Law Review 148 (May 2000):1637–72. See 1658–68 for the discussion on Yoo.
Priest and Smith, “Memo Offered Justification,” A1.
See John Yoo, The Powers of War and Peace:The Constitution and Foreign Affairs After 9/11 (Chicago:University of Chicago Press, 2005).
See Mary Ann Glendon, Rights Talk (New York:Free Press, 1991); Robert J. Spitzer, The Right to Bear Arms (Santa Barbara, CA:ABC-CLIO, 2001), 82–3.
Harold J. Berman, William R. Greiner, and Samir N. Saliba, The Nature and Functions of Law, 6th ed. (New York:Foundation Press, 2004), 13. See also Chap. 6 on legal reasoning.
Steven Vago, Law and Society (Englewood Cliffs, NJ:Prentice-Hall, 1991), 279. See also Ruggero J. Aldisert, Logic for Lawyers (New York:Clark Boardman Co., 1989).
Kenney Hegland, Introduction to the Study and Practice of Law, 3rd ed. (St. Paul, MN:West Publishing, 2000), 16.
Stephen Gillers, “The American Legal Profession,” in Fundamentals of American Law (New York:Oxford University Press, 1996), 166–7. The adversary system has its limits; lawyers are not supposed to lie to clients, or encourage clients to lie, for example. Prosecutors in criminal cases who uncover evidence that would help the defendant are obligated to make that information available.
Kenneth Mayer, “The Return of the King? Presidential Power and the Law,” PRG Report, 26(Spring 2004):13.
Lawrence M. Friedman, American Law in the 20th Century (New Haven, CT:Yale University Press, 2002), 486.
Rosa Ehrenreich, “Look Who’s Editing,” Lingua Franca (January/February 1996):58–63; Bernard J. Hibbitts, “Last Writes? Reassessing the Law Review in the Age of Cyberspace,” New York University Law Review 71 (June 1996):615–88; Christopher Shea, “Students v. Professors,” The Chronicle of Higher Education, June 2, 1995, A33–4. Faculty oversight has actually declined since 1970, although there has been a recent revival of the call for greater faculty control. Roger C. Cramton, “ ‘The Most Remarkable Institution’:The American Law Review,” Journal of Legal Education 35 (1986):6.
Hibbitts, “Last Writes?” 647–8. Despite continued, even growing criticism of student control of law reviews, students continue to control an ever-growing number of such publications.
Richard A. Posner, “Against the Law Reviews,” Legal Affairs (November/December 2004), accessed at <://www.legalaffairs.org/issues/November-December-2004/toc.html> on January 14, 2005.
Friedman, American Law, 498; Kermit L. Hall, The Magic Mirror (New York:Oxford University Press, 1989), 218.
Garry Wills, “To Keep and Bear Arms,” New York Review of Books, September 21, 1995, 71.
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© 2006 Michael A. Genovese and Lori Cox Han
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Spitzer, R.J. (2006). The Commander in Chief Power and Constitutional Invention in the Bush Administration. In: Genovese, M.A., Han, L.C. (eds) The Presidency and the Challenge of Democracy. The Evolving American Presidency Series. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230600744_5
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