If the President Does It, It's Not Illegal

Via Eschaton. William Kristol writes:

....the Founders intended the executive to have -- believed the executive needed to have -- some powers in the national security area that were extralegal but constitutional.

A key reason the Articles of Confederation were dumped in favor of the Constitution in 1787 was because the new Constitution -- our Constitution -- created a unitary chief executive. That chief executive could, in times of war or emergency, act with the decisiveness, dispatch and, yes, secrecy, needed to protect the country and its citizens.

Some cavillers have been wondering whether the Founders intended the executive's kingly prerogatives to extend so far as the inherent authority to impound appropriated money, or to sign a bill into law with the stipulation that he reserves the right to ignore portions of it.

One of these nervous Nellies gave aid and comfort to America's enemies at a recent press conference (via Obsidian Wings, via Eschaton):

I wonder if you can tell us today, sir, what, if any, limits you believe there are or should be on the powers of a President during a war, at wartime? And if the global war on terror is going to last for decades, as has been forecast, does that mean that we're going to see, therefore, a more or less permanent expansion of the unchecked power of the executive in American society?

Obsidian, as you might expect from a fifth columnist, whines about the President's answers:

The President's first answer was that he's promised to uphold the law. Since the President's has advisors willing to write him memos saying that it is unconstitutional to stop him from torturing people, this isn't much comfort. His second answer was that he's briefed members of Congress on this occasionally. Given that they apparently couldn't discuss those briefings with each other or their own staffs, let alone reveal the information publicly, this also isn't much comfort.

But some big guns are speaking up in the beleaguered Commander-in-Chief's defense. Fafblog, for example:

All the usual suspects have begun ringing all the usual alarm bells, calling the president's new powers unconstitutional or even dictatorial. This, of course, is absurd. There remain numerous checks on the president's powers, such as God, who may override the president's veto with a two-thirds vote, and the president himself, who may bring himself to justice should he find himself to have violated his oath of office. Nor have Congress and the courts been rendered powerless, as all three branches of government have vital roles to play: the executive branch to be the president, the legislative branch to support the president, and the judicial branch to tell the president he is constitutional.

And Marginal Revolution (via Battlepanda):

Liberals are claiming that President Bush has violated constitutional restrictions on torture and spying on Americans. Don't they understand that the constitution is a living document that must be reinterpreted in light of new events and understandings? An originalist reading of the constitution would throw us back into the primitive past when the minimum wage was unconstitutional. Fortunately, conservatives know that constitutional interpretation must change with the times and never more so than now. We live in a different world. The Founding Fathers may have been great in their time but they did not face the problems that we face today and we should not be bound by their 18th century ideas of liberty and executive tyranny.

Agitprop has some suggestions for other constitutional provisions we might have to destroy in order to save:

If the Dear Leader could wipe away the 4th Amendment with a stroke of his mighty pen, can the 22nd be far behind? So Agitprop asks: since Cheney will likely be put out to pasture, who's your nightmare running mate for Bush's 2008 presidential bid? He'll need people-boiling advice, so we picked Uzbekistan's President Karimov. Winner gets a fabulous prize!

P.S. James L. Wilson gives some nattering nabobs of negativism a two-fisted lesson in Freedom:

What unpatriotic Americans like you don't understand is context. It isn't Police State tactics and so-called "Big Brother" technology that's so bad, it is when they are used for Communist purposes. But when they are used to defend Freedom, what's the problem? What do you have to hide? Why do you persist in abusing the First Amendment? If the President says he is protecting us, how dare you to mock his intentions? Or his competence? After all (even though Congress never declared it, and hasn't bothered to declare one since before even you were born), WE'RE AT WAR!!!!! To criticize the President when WE'RE AT WAR is TREASON!!!!!!