On Why No One Knows What We’d Do as President



On Why No One Knows What We’d Do as PresidentQuestioning Executive Authority and Classified InformationBarack Obama’s third Executive Order, as registered in the National Archives as #13491, titled Ensuring Lawful Interrogations, orders all detainees of armed combat, to be treated with humanity and dignity, as, while under American capture. Yet, Bradley Manning, an American citizen and soldier, once deployed in Afghanistan, sits in solitary confinement, frequently stripped naked for hours on end, having been convicted of nothing. When Amnesty International inquired as to the President’s opinion of this treatment, which it cited as contrary to the Geneva Convention’s stance on torture, Obama solicited this response:With respect to?Private Manning, I have actually asked the Pentagon whether or not the procedures that have been taken in terms of his confinement are appropriate and are meeting our basic standards.??They assure me that they are.??I can't go into details about some of their concerns, but some of this has to do with?Private Manning's safety as well. CITATION Gre11 \l 4105 (Greenwald, 2011)While this flip flop on government policy seems little to do with Constitutional conflicts within the Executive Branch when deploying armed intervention, it brings to the surface one of the key mainstays keeping plenal authority within the powers of the Executive, and allows us to wonder at what level are we unaware of what drives decisions of the Executive Office. What seems to be the main conflict is whether the President should be able to act will, giving the nation the key military factor of speed and surprise when dealing with foreign and domestic threats, and how that balances against the democratic principle of Congress debating these actions. While the Constitution entitles the Executive as Commander in Chief of the Army and Navy, it, on the other hand arbitrates Congress to declare War and raise the army and navy.The War Powers Resolution created in response to unilateral deployment in Korea, and consequently Vietnam, was vetoed by Richard Nixon on October 24, 1973, and then overridden by 2/3 of the government at large to be enacted into law on November 7 of the same year. The mainstay behind the bill was to ensure Congress, and thereby the people, had a say in their foreign policy and military measures. It hoped to do so by imposing a 60 day limit on military deployment, whereby, unless ratified by Congress, that deployment would terminate. The cornerstone behind Nixon’s veto was that it was unconstitutional, and went against Article II of the Constitution vesting full command of foreign affairs and the military to the President. Secondly,if Congess argued it undemocratic for a President to unilaterally maintain the portfolios of the military and foreign affairs, it was similarly undemocratic for such action to come to a standstill through inactivity. If both sides were undemocratic, the Consitution had already decided the outcome. (Woolley, J. T., & Peters, G.,2011).Presidents since the Resolution have made an effort to acknowledge it, without recognizing it as binding, and in almost all cases, have used the words “consistent with” when reporting a hostile act under which the Resolution would fall, in order to conspicuously remind Congress people that they are adhering to it only as a nicety. Regardless, seventeen acts, which would have fallen under the Resolution, were never reported as called for. (Grimmet, 2004)George W. Bush, before seeking Congress’ consent to pursue military action in Afghanistan and Iraq solicited his Attorney General, John Yoo, to summarize how, if necessary, his actions would be binding under the Constitution, regardless of Congress’ decision. Yoo’s Response, THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM , cited a number of precedents, all supporting the vesting clause, and the President’s plenal authority over the army and the navy, including Prize Cases , Kahanamoku,, Mitchell v. Laird, and Campbell v. Clinton,..(2001)This preliminary measure to fortify his position, did not stop him from seeking Congress’ approval, which in the fervor after Sept, 2001, gave it to him. The War Powers Resolution, while called invalid and toothless by critics has pushed Presidents to work, albeit at times grudgingly, with Congress if only to stave off the ensuing challenges with bipartisan public relations should the Resolution’s authority ever be called into question. In fact, the Resolution ultimately can work in the Executive’s favor, as it did with Bush, when a foreign policy action goes awry. Despite any critique of the wars in Iraq and Afghanistan, Bush can ultimately diffuse the blame amongst the Congress who overwhelmingly supported them,. (Weiner, 2006)One precedent buttressing Executive Power with full authority was in Chicago & Southern Air Lines vs. Waterman S.S. Corp (1948) 333 U.S. 103, which stated:The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret One of the key precedents acknowledging the Executive’s command over the Army, Navy and Foreign Affairs of the nation came two years before the War Powers Resolution, New York Times Co. v. United States, 403 US 713 (1971) also brought into light one of the current paradoxes the Executive Power inflicts on the Constitution, the first amendment rights of a free press versus Executive privilege. The responsibility must be where the power is. If the Constitution gives the Executive 729*729 a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense, then under the Constitution the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully. In 1983, the questions of Executive Privilege and Power came into play with the Iran Contra Affair, where Congress had specified that no money be made available to “the Central Intelligence Agency, the Department of Defense, or any other agency or entity involved in intelligence activities” able to act against Congress. [towards the Contras] Reagan, with authority over the Central Intelligence agency, also had control over the National Security Agency, through which he made money available to the Contras. Despite the ensuing Iran-Contra Hearings, what comes to light is presidents may keep their reasons classified, made only available to themselves, under Executive Privilege, and counsel their subordinates to do the same, even after their Presidency expires. (Sacharoff, 2009)When powers of the Executive are deemed questionable, they may fall back on Executive Priviliege, allowing that classified information may be withheld for reasons of national security. However, what is classified, may not always be against the interests of military activity, soldier’s lives or American interests, but rather protecting the interests of an Executive acting unilaterally. As further stated in New York Times, It is an awesome responsibility, requiring judgment and wisdom of a high order. I should suppose that moral, political, and practical considerations would dictate that a very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion.Thus stands the question of the day, whether Executive Authority over foreign affairs, the army and the Navy have passed into an area so intent on its deliverance that Private Bradley Manning is deprived of his 4th amendment protection versus cruel and unusual punishment and due process under the law for seeking shelter under the 1st amendment to produce what is in his mind, a very different story in Afghanistan, than those told by embedded reporters. BIBLIOGRAPHY Grimmet, R. F. (2004). RL32267 -- The War Powers Resolution: After Thirty Years. Washington: Department of Defense.Woolley, J. T., & Peters, G. (2011). 311 - Veto of the War Powers Resolution. Retrieved from The American Presidency Project: , J. (2001, September 25). Department of Justice. Retrieved from THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM: , K. R. (2001). With the Stroke of a Pen: Executive Orders and Presidential Power. Princeton, NJ: Princeton University Press. Sacharoff, L. (2009). Former Presidents and Executive Privilege. Texas Law Review, 88(2), 301Weiner, M. B. (2007). A Paper Tiger with Bite: A Defense of the War Powers Resolution Vanderbilt Journal of Transnational Law, 40(3), 861+. ................
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