For the many of us who are appalled at the naked assertion of unlimited executive power during wartime by the Bush administration, it is at least reassuring to know that this is not terra incognita. The generations that came before us were not stupid; and if we are willing to listen, we can learn much from their wisdom. During the Civil War, a threat greater by multiple orders of magnitude than al Qaeda could ever be, the unbridled power of the Executive was also argued. In 1866, the Supreme Court responded. Read all the way to the end of the court's opinion for its truly prescient warning. (Note: bolding is mine)
In 1866 the court had before it the case of an alleged extremist named Milligan. Here is a summary, from the Supreme Court's opinion, of the allegations against him, and the legal issue before the court:
The substance of them was, joining and aiding, at different times, between October, 1863, and August, 1864, a secret society known as the Order of American Knights or Sons of Liberty, for the purpose of overthrowing the Government and duly constituted authorities of the United States; holding communication with the enemy; conspiring to seize munitions of war stored in the arsenals; to liberate prisoners of war, &c.; resisting the draft, &c.; . . . 'at a period of war and armed rebellion against the authority of the United States, at or near Indianapolis, [and various other places specified] in Indiana, a State within the military lines of the army of the United States, and the theatre of military operations, and which had been and was constantly threatened to be invaded by the enemy.' These were amplified and stated with various circumstances.
The controlling question in the case is this: .... Milligan, not a resident of one of the rebellious states, or a prisoner of war, but a citizen of Indiana for twenty years past, and never in the military or naval service, is, while at his home, arrested by the military power of the United States, imprisoned, and, on certain criminal charges preferred against him, tried, convicted, and sentenced to be hanged by a military commission, organized under the direction of the military commander of the military district of Indiana. Had this tribunal the legal power and authority to try and punish this man?
The argument put forth by the attorney general on behalf of the US president then, is EXACTLY the legal theory put forth by the Bush administration now. Don't believe me? Here is the administration's legal argument, as set forth verbatim by the Supreme Court:
The people of these States in forming a 'more perfect Union, to insure domestic tranquillity, and to provide for the common defence,' have vested the power of making and carrying on war in the general government.... This right and power thus granted to the general government is in its nature entirely executive, and in the absence of constitutional limitations would be wholly lodged in the President, as chief executive officer and commander-in-chief of the armies and navies.
After war is originated, whether by declaration, invasion, or insurrection, the whole power of conducting it, as to manner, and as to all the means and appliances by which war is carried on by civilized nations, is given to the President. He is the sole judge of the exigencies, necessities, and duties of the occasion, their extent and duration.
It will be argued that the fourth, fifth, and sixth [Amendments] are restraints upon the war-making power; but we deny this. All these amendments are in pari materi a, and if either is a restraint upon the President in carrying on war, in favor of the citizen, it is difficult to see why all of them are not.... These, in truth, are all peace provisions of the Constitution and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law.
By the Constitution, as originally adopted, no limitations were put upon the war-making and war-conducting powers of Congress and the President; and after discussion, and after the attention of the country was called to the subject, no other limitation by subsequent amendment has been made, except by the Third Article, which prescribes that 'no soldier shall be quartered in any house in time of peace without consent of the owner, or in time of war, except in a manner prescribed by law.'
This, then, is the only expressed constitutional restraint upon the President as to the manner of carrying on war.
IOW, in 1866 the exact position of the Bush administration was argued to the Supreme Court: once the Congress declares law, the President is above the law. In fact, as commander-in-chief he IS the law. The Supreme Court in 1866 was unmoved, decisively and devastatingly rejecting the argument:
No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people; for it is the birthright of every American citizen when charged with crime, to be tried and punished according to law.... By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers. or the clamor of an excited people.... precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle; and secured in a written constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direct, to leave room for misconstruction or doubt of their true meaning. Those applicable to this case are found in that clause of the original Constitution which says, 'That the trial of all crimes, except in case of impeachment, shall be by jury;' and in the fourth, fifth, and sixth articles of the amendments....
Time has proven the discernment of our ancestors; .... The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.
But it is said that the jurisdiction is complete under the 'laws and usages of war.'....It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that in a time of war the commander of an armed force (if in his opinion the exigencies of the country demand it, and of which he is to judge), has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will; and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States.
If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules.
The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the 'military independent of and superior to the civil power'.... Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish..
This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew-the history of the world told them-the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the Judiciary disturb, except the one concerning the writ of habeas corpus.
So there you have it. During times far more dangerous than our own, the claim that the President is above the law during times of war as commander-in-chief, has been decisively rejected. To Bush and the NSA, I have this to say: The Supreme Court - in 1866 - spoke for me.