October 7th marked the eighth anniversary of the Bush administration's invasion of Afghanistan and so of the... well, can we really call it a war?... that won't end, that American commanders there now predict could last for another decade or more. And yet, here's the weird thing: because Congress no longer actually declares war, we officially must be fighting something else entirely. Put another way, we are now heading for the longest undeclared war in U.S. history (depending on how you count up the Vietnam years).
The Obama administration, having doubled down on Afghanistan in March, sending another 21,000 or more U.S. troops as well as extra contingents of civilians, deciding to put a billion dollars into a new embassy in Islamabad, Pakistan, and build new or expanded embassy and consular facilities, roads, bases, and prisons in Afghanistan, is now considering yet another expansion of the [you fill in the blank], including up to 40,000 -- some reports now say 80,000 -- U.S. troops, more drone air strikes, and more training of Afghan forces. And yet, the U.S. is still operating on the pallid "authorization for use of military force" passed by Congress on September 18, 2001 at the behest of the Bush administration. It only authorizes the president "to take action to deter and prevent acts of international terrorism against the United States." No more. War itself -- despite all the fighting, the death, and the money spent -- has never been declared, and in our present era of ever expanding presidential power, it never will be.
In other words, we are at war without being at war. As in every war since World War II ended, we find ourselves once again in a presidential conflict backed by Congress. Although Senator John Kerry's Foreign Relations Committee has held hearings on "how the nation should declare war" (a subject that you might think the Constitution had definitively settled), don't count on the Obama administration to return to Congress for an actual declaration of war as it moves forward in the Af-Pak theater of operations.
George W. Bush is gone, but as David Swanson, TomDispatch regular and author of Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union, makes clear, our increasingly engorged presidency remains essentially untouched, despite the new occupant in the White House. Tom
Presidential Power Grows Will You Love Every Future President?
By David SwansonPresidential power has been on a pathway of expansion beyond what the Constitution outlined, and what a government of, by, and for the people requires, since George Washington was president. That expansion, which hit the highway after World War II, got a turbo boost during the co-presidency of George W. Bush and Dick Cheney.
Some of the new powers that those two stole from Congress, the courts, the states, and us the people are being abused less severely in this new age of Obama; others, more so; but far more crucially, in a pattern followed by recent presidencies, all are being maintained, if not expanded, and thus more firmly cemented into place for future presidents to use. Wherever you fall on the political spectrum, you are likely to strongly oppose some major decisions of some future presidents. So it shouldn't be hard to envision some pretty undesirable consequences that might flow from presidential power that increasingly approaches the absolute.
Our television news and newspapers don't seem terribly interested in this story, despite scraping its surface with reports on the many "czars" Obama has appointed or lectures on the importance of renewing, or only marginally amending, the PATRIOT Act. And Congress seems, if possible, even less interested. That's not so surprising, given that we've replaced the three branches of government with the two parties, so that at any given time roughly half the members of Congress take as their leader a president who is theoretically supposed to execute the will of Congress. And the other half usually obey their party's "leaders" in Congress, whose primary interest is in electing one of their own as the next president. Both parties continue to value presidential power itself either for its uses in the present, or for when their candidate is elected. Everyone wants to inherit the imperial presidency, not constrain it.
Under these circumstances, bills to create commissions investigating presidential abuses, to place a judicial check on claims of "state secrets," limit the use of presidential signing statements, or to allow more than eight members of Congress to be given "security" briefings by the executive branch prove not to be priorities for either party.
These days, the old-fashioned idea of checking executive abuses of existing laws through the issuance of subpoenas or by impeachment is, in Washington, widely considered a scandalous proposition. Congress impeached a judge this year who had groped his employees, but Jay Bybee, who signed secret memos purporting to legalize aggressive war and torture, and who now holds a lifetime seat on the Ninth Circuit Court of Appeals, is protected from such a step by his recent membership in the executive branch (and the displeasure Fox News would express toward his impeachment).
In April, Senator Patrick Leahy, chairman of the Senate Judiciary Committee, asked Bybee to testify, and the judge refused, just as many of his former colleagues in the Bush administration had in 2007 and 2008. Leahy may be unwilling to follow up by issuing a subpoena that even the new Department of Justice might refuse to enforce. The current department, for instance, allowed the White House Counsel to negotiate partial compliance with a House Judiciary Committee subpoena by former presidential advisor Karl Rove. And if Leahy is like most members of Congress, he will not even consider the option of using the Capitol Police to enforce a subpoena himself -- something that no committee has done in 75 years.
All Power to the President
Any quick survey of the powers the presidency now claims would have to include the power to make laws, the power to make wars, the power to spend money, the power to make treaties, the power to grant immunity for crimes, the power to operate in secrecy, the power to spy without warrants, the power to detain without charge, and the power to torture.
Laws are still made by Congress, but they can be rewritten via signing statements; that is, statements announcing a president's intention to violate particular sections of the very bill he is signing into law. Neither Congress nor President Obama has thrown out all of Bush's extensive signing statements that did indeed alter laws. In fact, Obama has announced that his subordinates will review his predecessor's signing statements only as the need arises.
This policy might please those imagining that the Obama administration will always make the right decision about whether to maintain or reject a Bush-made amendment to a law, but it does nothing to strip the presidency of the power to use the mechanism of the signing statement to re-make or amend or alter new laws. As it happens, Obama has already published his own law-making signing statements.
Presidents now also routinely determine national policy through executive orders and, in doing so, run the country out of the White House rather than through departments headed by officials approved by Congress. They also increasingly dictate a legislative agenda to Congress -- and both members of Congress and members of the public generally accept without comment or opposition that inversion of our constitutional system. And then there are the secret memos.
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