The War Powers and B. Hussein Obama

Orin Kerr, for whose Constitutional insight I have much respect, is uncharacteristically silly today:

Just A Reminder, for the folks who thought that President Bush had the power to arrest anyone in the United States and detain them as “enemy combatants” without any hearing as part of his Commander-in-Chief power, that this power is now enjoyed by Barack Hussein Obama. That’s right: A liberal with the middle name “Hussein” who pals around with terrorists and is adored in Paris now has all that Commander-in-Chief power. And if he decides that you’re a threat to the nation, he can order you seized and locked up indefinitely. Congress can’t get in B. Hussein Obama’s way: As the FISA Court of Review emphasized back in 2002, Congress “could not encroach on the President’s constitutional power.” And that meddling Supreme Court can’t stop “The One,” either. Or at least that’s your view of things.

Yes, it is my view that “B. Hussein Obama”, as the egregious Miss Coulter calls him, possesses the wide array of powers pertaining to the commander-in-chief of our Armed Forces. Like any other powers, those can be misused. Professor Kerr would (to simplify slightly) prevent the misuse by denying the powers. I see problems with that.

The ability to seize and hold enemies is essential to fighting wars. Someone must decide whom to seize and how to hold them. Until 9/11 no one but an occasional crank doubted that those were executive functions and that subjecting them to judicial oversight was neither practicable (because the courts would be overwhelmed hearing habeas petitions from PoW’s) nor prudent (because civilian courts have no familiarity with the day-to-day conduct of war). Giving the courts a role would have effectively negated our country’s ability to fight any but very small wars. And, in light of the judges’ incapacity for this particular task, there’s no reason to be confident that their judgements would be fairer than the President’s.

Abusus non tollit usum remains a wise maxim. The Presidential powers (and governmental powers in general) that worry me are those whose usus is doubtful, such as the power to seize private property for the benefit of other private parties, or is interpreted so expansively as to be a license to infringe economic or political liberty. Much government control of our lives is “necessary” only if we assume that citizens are too childish to make their own decisions. In those areas, it’s a good idea to limit what the executive (and the legislature and the courts) can do. Winning wars is, by contrast, government’s most important job. Independence is the first requisite for everything else. If we turn war into a lawyers’ game, someday we’ll be playing by rules that Professor Kerr will find less tolerable than Dick Cheney’s and less able to be questioned.

Comments

[pbh]

"Like any other powers, those can be misused."

In an interview on Tuesday evening with the German television program “Frontal 21,” on channel ZDF Professor Manfred Nowak, the United Nations Rapporteur responsible for torture, stated that with George W. Bush’s head of state immunity now terminated, the new government of Barack Obama was obligated by international law to commence a criminal investigation into Bush’s torture practices.

http://harpers.org/archive/2009/01/hbc-90004250

[Paul Zrimsek]

I've read that comment thread and seen none of the examples claimed by Prof. Kerr-- though he may well have knowledge of his commenters' past positions which I lack. A few names would be helpful.

[Orin Kerr]

Tom,

I am not suggesting that because a power could be abused, it does not exist. Rather, I am poking fun at the many people who have made the argument defending the President's position who will reverse course 180 degrees now that the Presidency has changed. (You can see some of them in the comment thread to my post.) I commend you for sticking to your guns, at least 12 hours into the new Presidency: I hope you will maintain 100% consistency for the next four years.

Best,
Orin Kerr