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Tuesday, June 28, 2011
CNS' Jeffrey Discusses Presidential War Powers, Ignores Bush

A June 24 article by Terry Jeffrey highlights an interview Jeffrey did with constitutional scholar Louis Fisher, in which he claimed that there is "a concentration of power in the president which is not constitutional." Focusing on President Obama's launching of military action in Libya without obtaining congressional approval first, Fisher said: "I’m not going to recommend that the House Judiciary Committee hold impeachment hearings. But I would like members of Congress and the public to say that nothing would be more impeachable than a president who takes the country to war without coming to Congress, who does it unilaterally."

Curiously omitted from Jeffrey's article on the Fisher interview was any mention of President Bush. Why is that curious? Because Fisher has written an entire book focused on expansion of presidenial power under Bush.

From the description of Fisher's book "The Constitution and 9/11: Recurring Threats to America’s Freedoms" by its publisher the University of Kansas Press:

Distilling more than two centuries of history into a panoramic and compelling narrative, Fisher chronicles the longstanding tension between protecting our constitutional rights and safeguarding national security, from the Whiskey Rebellion to the McCarthy hearings to George W. Bush’s “War on Terror.” Along the way, he raises crucial questions regarding our democracy’s ongoing tug-of-war between secrecy and transparency, between expediency and morality, and between legal double-talk and the true rule of law.

Fisher focuses especially on how the Bush administration’s responses to 9/11 have damaged our constitutional culture and values, threatened individual liberties, and challenged the essential nature of our government’s system of checks and balances. His close analysis of five topics—the resurrection of military tribunals, the Guantánamo detainees, the state secrets privilege, NSA surveillance, and extraordinary rendition—places into sharp relief the gradual but relentless erosion of fundamental rights along with an enormous expansion and concentration of presidential power in the post-9/11 era.

Further, the Fisher book discussed during the interview, "Presidential War Power," also addresses the subject of Bush. From a review of Fisher's book at the Law & Politics Book Review:

In the case of the recent Iraq War, Fisher argues that George W. Bush effectively manipulated Congress by pushing through a resolution just before a mid-term election and before developments in Iraq had ripened.  Fisher suggests that Congress should have waited until after the election and until the UN Security Council had considered the matter.  He points to the contrasting circumstances of the 1991 Persian Gulf War, when Congress did not act until after the UN and after opening its new session in January. This example is hardly reassuring, however, since the 1991 vote came too late in the day, just before the January 15th deadline for Iraqi capitulation set by George Bush, Sr. By that time it appeared to observers such as myself that America’s commitment to military action was a foregone conclusion.  (George H. W. Bush, like his son, denied that he needed congressional approval.)  In order to be effective, Congress needs to act with deliberation but before presidential initiatives have all but decided the issue.  The historical record does not offer much support for this possibility. 

In the 33-minute video of Jeffrey's interview with Fisher, the majority is spent discussing the historical background of presidential war powers. Jeffrey then said, making a 200-year leap over Bush: "Let me kind of make a jump from John Adams and the Congress of the late 1790s to today. If Congress in -- if the president of the United States and Congress in the late 1790s, a decade after the Constitution was written and ratified, believed that the Congress must authorize the president even to allow action against a French ship on the high seas, is that analogous to the president needing an authorization of Congress now to take action against Moammar Gadhafi in Libya?"

Even Fisher himself seems to consciously skip over Bush, at one point stating that "after World War II we had moved to a situation of Truman going to war on his own, never coming to Congress, Clinton repeatedly using military force, and we are to me acting unconstitutionally."

It's not until nearly 30 minutes into the 33-minute video that Jeffrey asked Fisher about Bush. Jeffrey said that Bush went to Congress for authorization for war in both Afghanistan and Iraq, then added, "Do you believe that the genie was being put back in the bottle at that point, that whether or not George W. Bush wanted to go to Congress, the fact that he did and he got the authorization was starting to recontstruct an original understanding of the Constitution?" Fisher responding that while Bush "did a lot of things unilaterally," he did indeed go to Congress regarding Iraq and Afghanistan. And then they moved on to whether Obama's actions were impeachable.

Even that little snippet of discussion didn't make Jeffrey's article.

It's absurd for Jeffrey and Fisher to discuss alleged abuses of presidential war powers by Obama without having anything beyond a perfunctory conversation about the actions of Obama's immediate predecessor.

Posted by Terry K. at 9:05 AM EDT

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