In Justice Jackson?s famous concurring opinion in the Youngstown Steel case in the 1950?s, the single most important Supreme Court case on the subject of what powers are inherent to the commander in chief in a time of war, he wrote, ?The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the declaration of independence leads me to doubt that they created their new Executive in their image?and if we seek instruction from our own times, we can match it only from the Executive governments we disparagingly describe as totalitarian.?

I am convinced that our founders would counsel us today that the greatest challenge facing our republic is not terrorism but how we react to terrorism, and not war, but how we manage our fears and achieve security without losing our freedom. I am also convinced that they would warn us that democracy itself is in grave danger if we allow any president to use his role as commander in chief to rupture the careful balance between the executive, the legislative and the judicial branches of government. Our current president has gone to war and has come back into ?the city? and declared that our nation is now in a permanent state of war, which he says justifies his reinterpretation of the Constitution in ways that increase his personal power at the expense of Congress, the courts, and every individual citizen.

We must surrender some of our traditional American freedoms, he tells us, so that he may have sufficient power to protect us against those who would do us harm. Public fear remains at an unusually high level almost three years after we were attacked on September 11th, 2001. In response to those devastating attacks, the president properly assumed his role as commander in chief and directed a military invasion of the land in which our attackers built their training camps, were harbored and planned their assault. But just as the tide of battle was shifting decisively in our favor, the commander in chief made a controversial decision to divert a major portion of our army to invade another country that, according to the best evidence compiled in a new, exhaustive, bi-partisan study, posed no imminent threat to us and had nothing to do with the attack against us.

As the main body of our troops were redeployed for the new invasion, those who organized the attacks against us escaped and many of them are still at large. Indeed, their overall numbers seem to have grown considerably because our invasion of the country that did not pose any imminent threat to us was perceived in their part of the world as a gross injustice, and the way in which we have conducted that war further fueled a sense of rage against the United States in those lands and, according to several studies, has stimulated a wave of new recruits for the terrorist group that attacked us and still wishes us harm.

A little over a year ago, when we launched the war against this second country, Iraq, President Bush repeatedly gave our people the clear impression that Iraq was an ally and partner to the terrorist group that attacked us, al Qaeda, and not only provided a geographic base for them but was also close to providing them weapons of mass destruction, including nuclear bombs. But now the extensive independent investigation by the bipartisan commission formed to study the 9/11 attacks has just reported that there was no meaningful relationship between Iraq and al Qaeda of any kind. And, of course, over the course of this past year we had previously found out that there were no weapons of mass destruction in Iraq. So now, the President and the Vice President are arguing with this commission, and they are insisting that the commission is wrong and they are right, and that there actually was a working co-operation between Iraq and al Qaeda.

Categories: Politics