Answering the critics of the legal case for the war on terror.

• Author: Rivkin, David B., Jr.
• Position: The Federalist Society National Lawyers Convention - 2007: American Exceptionalism

A policy argument often advanced by critics of the Bush Administration's legal policies with respect to the War on Terror is that civil liberties today are being unnecessarily sacrificed on the altar of public safety. (1) This claim usually has two dimensions. The first is that the pre-September-11 balance between liberty and public safety was just right and that any effort to tilt it toward the order side of the ledger is unnecessary or inappropriate. (2) This claim is mystifying. In principle, I trust we all agree that liberty and public safety are balanced differently in peacetime than in wartime. (3) It would follow then, that if the peacetime, pre-September-11 balance were sufficient for handling the exigencies of today, then that balance was way off, too harsh, and not sufficiently protective of individual liberty. Indeed, after the decades of the Warren and Burger Courts' veritable rights revolution, to argue that the pre-September-11 balance was not liberal enough is, to put it mildly, not credible. There is, of course, the notion, advanced by some critics, that this is not a real war, but here again, the facts do not support it.

The second dimension is the assertion that, whatever the government is seeking, be it data mining, information on airline passengers traveling to the United States, or intercepts of telephone conversations and related activity, it would not really enhance our security, but would merely swamp the government with vast amounts of useless data. (4) Indeed, government is not very good at analyzing and integrating data, but we have to take the government as it is: clumsy and relatively inefficient. Yet, just as the inherent inefficiencies in defense procurement and waste and mismanagement in the Defense Department are not particularly good reasons for refusing to spend money on a first-class military establishment, the same is true for the rest of the government.

Furthermore, there is often serious historical blindness involved. Some people claim that the Bush Administration is asserting and exerting unprecedented powers. (5) Yet, these critics rarely acknowledge a broad array of aberrant actions by the U.S. government throughout American history, including the passage of the Alien and Sedition Acts, (6) the Palmer Raids, (7) the internment of Japanese-Americans during World War II, (8) President Lincoln's tendency to jail his political opponents without according them the benefit of habeas corpus, (9) and President Wilson's orders to the Postmaster General not to deliver newspapers and magazines that were critical of the war effort. (10) With the exception of the Palmer Raids, all of the practices listed above are flatly unconstitutional and cannot be countenanced even in wartime. Indeed, any serious historian looking at the behavior of the past American wartime Presidents--Lincoln, Wilson, and Roosevelt--would conclude that they employed far more aggressive and anti-libertarian measures than the Bush Administration. Yet, regrettably, this is not exactly the view expressed by the critics today. (11)

This historical amnesia aside, we also have a problem of legal and constitutional misperceptions. The common perception of the media, the academy, and the pundits is that the Bush Administration was operating within the context of the imperial presidency paradigm, stretching the executive power to its limits, and threatening liberty in the process. (12) This is, to put it gently, a myth. It is fueled, at least in part, by misrepresentations of what Administration officials have argued about executive power, misstating the Bush Administration's theoretical understandings and, much more, their practical applications. Consider the notion, oft-advanced by critics, that, for the first time in American history, the Administration had claimed "dispensing powers"--the ability of a President to ignore existing statutes. (13) In reality, the notion that the President has both the right, and indeed the duty, to disobey unconstitutional laws, is neither unique to the Bush Administration nor even particularly controversial. Indeed, probably the best and most erudite Office of Legal Council memorandum written on this subject, "Presidential Authority to Decline to Execute Unconstitutional Statutes," (14) was authored on November 2, 1994, by Walter Dellinger, then President Clinton's Assistant Attorney General for the Office of Legal Counsel. Nobody in the Bush Administration has ever argued for a general "dispensing power," that is to say, the power to set aside statutes that the President simply does not like.

Far from seeing an imperial executive, instead, we witnessed an unprecedented assault by Congress to cabin the executive branch's ability to exercise its Article II powers relating to foreign affairs and national defense, including such matters as the...