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OpEdNews Op Eds    H1'ed 8/1/10

Expanded Presidential "War" Power: a Time-Bomb Threatening Our Democracy

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Follow Me on Twitter     Message Sandy Shanks
Actually, there are several of these time-bombs, and they have been tossed into the coal bin of history, forgotten while they lay ticking. That, of course, assumes the reader even knew about them in the first place. Only a few knew of their existence when they were created. Today, those still aware of the threat are a mere handful of Americans.

Although the origin of the time-bombs goes back to the days of the Bush era and the GOP-controlled Congress, the Obama White House does not want the American public to be aware of their presence for a very good reason. They enhance the power of the Executive Branch beyond the boundaries of a democratic nation. Which is the point. There is enormous angst among those aware of the threat, and that the Obama administration and the Democratic-controlled Congress has done nothing to defuse these bombs which threaten our nation as we know it.

These bombs are significant pieces of legislation passed by Congress and signed into law by President Bush.

Habeas corpus is the foundation of a democratic nation. Its roots and traditions run deep in all democratic societies. Indeed, it can be argued that without habeas corpus, there is no democratic society. For the United States, democracy theoretically, could be short-lived. The origins of habeas corpus can be traced to the 39th clause of the Magna Carta signed by King John in 1215, which provided that: "No man shall be arrested or imprisoned...except by the lawful judgment of his peers or by the law of the land," with "or" being understood to mean "and."

The Bush administration suspended the right of habeas corpus in the United States. On October 17, 2006, President George W. Bush signed into law S.3930, the Military Commissions Act, a law that cancels the right of habeas corpus for foreigners accused of terrorism and for both Americans and foreigners who have been designated as "enemy combatants" by the executive branch. Under this law, any individual, citizen or non-citizen, can be deprived of the protection of due process at the whim of the Executive Branch, and be imprisoned indefinitely without legal recourse.

This act extremely frightened this writer. Beginning in late 2002, as war clouds gathered over Iraq, I voiced strong disapproval of the Bush Doctrine, which asserted the right of the U.S. to invade other nations for vague reasons: social engineering, nation building, or regime change. I greatly feared a knock on the door in the middle of the night. Friends of mine on a contributing email network also feared that they had been put on some kind of list because of their association with me. The fear was palpable among us. One might argue that my relationship with this act was intimate. It was, and not in a pleasant way.

To my knowledge this despicable act has never been challenged in the courts, despite the obvious contention that it should be. There is a marvelous conundrum here. Although pure conjecture, it is plausible that hundreds, perhaps thousands of Americans, immigrant citizens included, have been relocated in accordance with this law. However, for a law to be challenged in the courts it must reach the courts. By law the President can dictate the future of a citizen without the matter ever coming before the courts. Detained by federal authorities and placed in some secure location, the future of this citizen, removed from family, home, job, and friends becomes bleak. In such instances the courts and American citizens would remain blissfully unaware of the threat that could come to their home next, perhaps by mistake. A working father of two beautiful children with a loving wife, perhaps an immigrant citizen from Egypt,who has the same name as a known terrorist ... I don't have to draw it out for you.

The Defense Authorization Act of 2006 (H.R. 1815), passed by Congress on September 30, 2006, and signed into law by President Bush on October 17, 2006, empowers the president to impose martial law in the event of a terrorist "incident," if he or other federal officials perceive a shortfall of "public order." The use of martial law could come, for example, as a response to a terrorist attack, but it is not excluded that it could be imposed if some antiwar protests were to get unruly or after any major civil disturbance.

When Congress passed the Insurrection Act in 1807, the purpose was to severely restrict the President's ability to deploy the military within the United States. The Posse Comitatus Act of 1878 tightened these restrictions, imposing a two-year prison sentence on anyone who used the military within the U.S. without the express permission of Congress. Indeed, its Section 1385 (Use of Army and Air Force as posse comitatus), as later amended, states that "Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both".

Those protections are now gone. The National Defense Authorization Act for Fiscal Year 2007 (H.R. 5122) changed the name of the key provision in the statute book from "Insurrection Act" to "Enforcement of the Laws to Restore Public Order Act." While the U.S. Insurrection Act of 1807 stated that the President could deploy troops within the United States only "to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy," the new law allows the President not only to declare martial law and rule by decree, but it also gives the President the power to take charge of United States National Guard troops without the state governors' authorization. The law also expands the list of such permissible cases for martial law to include "natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition" -- and such "condition" is not defined or limited in scope. All the safeguards against the use of the military at home have been removed in favor of new powers being given to the President to do so nearly at his whim.

The National Security and Homeland Security Presidential Directive, signed by President Bush on May 4, 2007, an event that was generally not covered by U.S. mainstream media (as is the case of the laws mentioned) or discussed by the U.S. Congress, goes even further and declares that in the event of a "catastrophic event," the President can become what is best described as a de facto dictator: "The President shall lead the activities of the Federal Government for ensuring constitutional government."

At this particular point you may be outraged - I certainly hope so - I assert  that such laws are clearly unconstitutional. It isn't every day that one reads about dire threats to our democracy and our freedoms created by the Executive and Legislative Branches of our government. Yet, there is no outrage. Why? Because, with the possible exception ofthe National Guard clause of H.R. 5122, these laws lie dormant. They have not been used. They are a ticking bombs just below the surface of our democratic society ready to blow up at any instant. Lying dormant, the courts cannot determine the constitutionality of these laws.

When, if ever, these laws will be used by a President (not necessarily Obama) no one knows. Nor do we know the scruples of some future President. These laws may be enacted as a result of some horrifying calamity in the future, another 9/11, another Katrina, a catastrophic earthquake in California. The possibilities are endless. While there is a lot we do not know, one thing is for certain. Theoretically, whatever enormous tragedy that causes the enactment of these laws, such enactment will overshadow the tragedy itself a thousand times over and the very destruction of American values. These laws must be rescinded.

On a smaller scale there are strong indicators of the feeling in the Obama White House concerning executive power - only indications, mind you - but strong ones. Columnist Melvin A. Goodman is concerned. He writes "[President Obama] has made no attempt to investigate the crimes that were committed by the Bush administration, including torture and abuse, secret prisons and renditions." He adds, "But the president's most inexplicable failure, in view of his Harvard Law School background and commitment to constitutional rights, is his unwillingness to name a statutory inspector general (IG) at the Central Intelligence Agency (CIA)."

Goodman then provides some background. "The CIA's transgressions in the Iran-Contra scandal in the 1980s led to the creation of a statutory and independent IG, appointed by the president with the advice and consent of the Senate. A powerful IG was required because the CIA's internal investigations of its role in the sale of arms to Iran were inadequate in comparison with the investigations of Congressional and independent counsels. Until the creation of the statutory IG, Congressional oversight committees were not given full access to the CIA investigations, and not even the Justice Department received reports detailing suspected illegalities." He continues, "The most recent IG, John Helgerson, proved to be an effective watchdog. This earned him the ire of the last four CIA directors, who mounted an unprecedented attack on the CIA's only genuinely independent watchdog. Helgerson retired in February 2009 and has not been replaced. Clearly, CIA management prefers to operate without oversight. But it is less clear why President Obama, apparently with the shocking support of Senate Intelligence Committee Chairwoman Dianne Feinstein (D-California), has chosen to name no successor to Helgerson."

That is not a good omen. Neither is this: the Obama administration has refused to allow the Justice Department to launch a full investigation into the Bush administration's torture policies and has also pressured Congress not to hold public hearings delving into the matter. President Obama
said last year that "those who [carried] out their duties relying in good faith upon the legal advice from the Department of Justice" should not be subject to prosecution. Holder added, "with regard to those members of the intelligence community who acted in good faith and in reliance with Justice Department opinions that were shared with them, it is not our intention to prosecute those individuals." This begs a question. How about prosecuting those individuals complicit in these obviously illegal torture memos that guided those who "carried out their duties," namely John C. Yoo, Alberto R. Gonzales, and Jay S. Bybee, now a federal judge? Nope, no luck, Holder is not going there either. His department has determined that the memos were mere lapses in judgment.

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Sandy Shanks Social Media Pages: Facebook page url on login Profile not filled in       Twitter page url on login Profile not filled in       Linkedin page url on login Profile not filled in       Instagram page url on login Profile not filled in

I am the author of two novels, "The Bode Testament" and "Impeachment." I am also a columnist who keeps a wary eye on other columnists and the failures of the MSM (mainstream media). I was born in Minnesota, and, to this day, I love the Vikings (more...)
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