From: Bathus
To: David Frum
Sent: Monday, June 27, 2005 12:54 AM
Subject: formal legal code governing anti-terror operations

Dear Mr. Frum,

In your NRO Diary, you argue that "the administration should work with Congress to write a formal legal code governing its anti-terror operations" so as "to deprive liberals of any excuse" for acting like Dick Durbin.

I don't think that's such a good idea:

The very first executive power the Constitution grants to the president is that of commander-in-chief, an authority the boundaries of which are, for the most part, not otherwise explicitly delineated. Thus, the Constitution already assigns to the president whatever powers can constitutionally accrue to a commander-in-chief. In other words, with only a few explicit exceptions (e.g., the power to declare war reserved to Congress; the prohibition of quartering of soldiers except in time of war and as prescribed by law), every conceivable war-making power that is constitutional is already within the president's power. On the other hand, the Congress obviously cannot legislatively grant to the president any unconstitutional war-making power.

Therefore, since the president already possesses (almost) every possible constitutional war-making power, and since the Congress does not have the power to expand a president's war-making power beyond what is constitutional, any legislation that delineates some aspect of a president's war-making powers can in its effect only be either a limitation of those powers or a nullity.

The president needs flexibility in his exercise of the powers of commander-in-chief to deal with the unpredictable exigencies of war. As you say, "success in this war will require the United States government to take actions that it has never taken before," and it is impossible now to know exactly what those actions might be. For that very reason the courts have historically interpreted the president's war-making powers quite broadly to meet the exigencies of the moment. Such flexibility is especially necessary to prevent and to defeat asymmetrical attacks waged by terrorists. Any law delineating the president's war-making power would threaten that flexibility.

In light of the above, it would be rash legislatively to delineate (i.e., effectively to limit) the president's war-making power. Indeed, our enemies (who have no difficulty finding clever lawyers) could use your law "governing . . . anti-terror operations" as a blueprint to organize their own operations and methods so as to exploit areas in which the president's war-making power has been effectively circumscribed. In war, it's unwise to explain to the enemy every limit of one's powers and every circumstance in which one might or might not employ them. Yes, the long drawn out ad hoc litigations to resolve the scope of presidential war-making authority (accompanied by grandstand posturing by the president's political opponents) seem endlessly frustrating. But keep in mind that these lawsuits entail post hoc determinations, which means that in a crisis the president remains free to do what he thinks needs to be done right then, based on his best judgment of the boundaries of his constitutional authority, and he can let all the lawyers fret over sorting out the murky legal theories later. Your "formal legal code governing . . . anti-terror operations," even if its committees of drafters do not intend unreasonably to restrain him, might tie the president's hands in advance in unexpected ways so that he would lack the power needed to confront an unpredictable emergency.

With regard to your desire "to deprive liberals of any excuse" for acting like Dick Durbin, a new law "governing . . . anti-terror operations" would not deprive them of an excuse because they already have no excuse.

Many liberals do not require an "excuse."

They require only an "occasion."

Thus, as we have seen with the Patriot Act, the attempt to pass a law "governing . . . anti-terror operations," and--in the event of its passage--every attempt to employ that law in the exercise of a war-making power, would not mute the liberal cacophony or help this country to "hold together its war-fighting coalition," but would merely provide infinitely more numerous "occasions" for certain liberals to do the usual sort of things for which the lack of an excuse has heretofore been no restraint.

The very best thing this president could do to diminish uncertainty about the scope of his war-making authority is not to hamper himself and his successors with another War Powers Act that will be dangerously obsolete before the last bound copy rolls off the presses at the Congressional Printing Office, but to request from Congress a formal Declaration of War.

I admire your writing and remain . . .

Your loyal advocate,
Bathus at Adeimantus Blog