Does a State of War Give Bush a Right to Commit War Crimes?


Right-wing columnist Charles Krauthammer has weighed in against the Supreme Court’s latest ruling in Hamdan, claiming that the Court erred in barring President Bush from denying Guantanamo detainees the protections of the Third Geneva Convention. The basis for his argument is that the U.S. is at war, and that traditionally “supreme courts have been loath to intervene against presidential war powers in the midst of conflict.”

Let’s look at this assertion for a minute.

First of all, the fact that in the past, presidents have grievously abused their power during wartime, and damaged the Constitution in the process, is hardly grounds for letting this president do so again. Krauthammer cites, for example, President Lincoln’s famous revocation of the age-old common law right of habeas corpus–the right to have one’s imprisonment brought before a judge–to justify Bush’s current denial of habeas corpus to captives in Guantanamo Bay.

Well, what Krauthammer fails to mention is that in 1866, the Supreme Court slapped down the administration of the assassinated President Lincoln, overturning the detention and execution order (never carried out) of one Lambdin P. Milligan, who had been arrested on orders of the president on a charge of treason and denied habeas rights. In that ruling, the Justice David Davis wrote:

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. (Milligan, 71 U.S. 2 (1866))

Those stirring words should be mailed to every member of Congress as they now consider the Supreme Court’s Hamdan ruling, with many Republicans clamoring to pass a law exempting the Guantanamo detainees from the Geneva Convention’s jurisdiction.

Second, let’s examine Krauthammer’s (and the Bush administration’s) premise that the nation is at war, and that therefore the president can claim special powers.

Is the country at war?

Certainly it’s not at war in Afghanistan, where there is an elected government, and where U.S., British, French, German, Canadian and other military forces serve at the invitation of the government. To call the small-scale fighting against remnant Taliban fighters a war would be to say that the U.S. is always at war, for U.S. military forces have been in combat situations somewhere in the world almost constantly, especially since World War II. Consider Korea, Indochina, El Salvador, Nicaragua, the Dominican Republic, Lebanon, Grenada, Panama, Haiti, Bosnia, Kosovo, Kuwait, etc. (have I forgotten any?). If these situations, in which U.S. forces were shooting and being shot at, were all to be called states of war, then by Krauthammer’s faulty “logic,” the U.S. should have been under presidential rule, with the Constitution suspended, for several generations already.

Clearly this is absurd. For the term “war” to have any meaning, it must refer to a condition in which the nation itself is in jeopardy. Certainly it was this threat to America’s very existence that led Lincoln to declare martial law in some jurisdictions, and to suspend the protections of the Constitution, rightly or wrongly.

Happily, nothing like that kind of threat pertains today.

Neither the fighting in Afghanistan, nor the larger fighting in Iraq–which was certainly a war (with us as the invader!), but which is now a police action at the request of a sovereign government, in the words of our president himself–is a war.

The only “war” that can be at issue then, is the so-called “war on terror.” But is this in any way a real “war”? Unless one believes the self-serving clap-trap of the administration that the soldiers in Iraq are fighting in the war on terror–an absurdity because there were no terrorists in Iraq before the U.S. invaded that country, and now what is called “terrorism” in Iraq, at least as directed against U.S. interests, is nothing but garden variety guerrilla warfare against a foreign army (ours)–the answer has to be no. As Bush famously declared back on April 30, 2003, major combat ended in Iraq over three years ago. There is no war in Iraq.

That leaves the global “war” on terrorism. But let’s get real. This is no more a war than was the “war” on drugs or the “war” on poverty. Sure, there may be a few soldiers who are involved, but mostly it’s about spying, monitoring, infiltrating and arresting suspected terrorists. To call that kind of thing a war is to debase the currenty of the language beyond recognition. (The truth is there are probably more actual U.S. military forces involved in the so-called “war” on drugs than there are involved in the so-called “war” on terror.)

Moreover, while terrorists certainly can threaten the lives and safety of Americans, they cannot threaten the survival of or the territorial integrity of the United States, which is after all what wars are all about.

Furthermore, Krauthammer speaks of presidents needing to be able to suspend Constitutional rights and to claim special extra-constitutional powers during wars, and of the tradition of them then restoring those rights after a conflict ends. But the administration has made it clear, in between stirring calls for “total victory,” that there will be no end to this “war” on terror. And indeed there cannot be, for there will always be those who will seek to disrupt or punish a global power like the U.S. through the use of terror. To accept the argument that fighting against such threats requires a suspension of rights and a president with dictatorial powers is to say that the Constitution, with its separation of powers and its Bill of Rights, is finished.

Like the administration he serves, Krauthammer is simply wrong, and surely in making such a preposterous claim has surrendered the right to call himself a conservative.

Justice Davis, writing at a time right after the nation had fought a four-year war for its very survival, a year after the president had been slain by an agent of the enemy, and while forces of resistance in the South were continuing to battle U.S. occupation troops, had it exactly right when he said: “The Constitution of the United States is a law for rulers and people, equally in war and in peace.”

DAVE LINDORFF is the author of Killing Time: an Investigation into the Death Row Case of Mumia Abu-Jamal. His new book of CounterPunch columns titled “This Can’t be Happening!” is published by Common Courage Press. Lindorff’s new book is “The Case for Impeachment“,
co-authored by Barbara Olshansky.

He can be reached at: dlindorff@yahoo.com



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Dave Lindorff is a founding member of ThisCantBeHappening!, an online newspaper collective, and is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).

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