Illusion of a War Paves Bush Path to Dictatorship of the Executive Branch

Isn't a background concern in the controversey about executive inherent powers a question of the "right" of the executive branch to declare martial law? That is, if the Congress limits the President's powers, then s/he cannot declare martial law in the future event of invasion, breakdown of civil order, and so on. ...

I see why some might think the concern I mention is a red herring. I guess I'd ask, though, why is it a red herring to ask whether passing one law would infringe on the potential exercise of an unacknowledged but accepted "right" such as martial law?

Let me be clear: I am not saying that at this time Congresspeople are thinking consciously about this issue. The President's ability to declare martial law is one of those tacit understandings that few acknowledge (at least so far) but all accept.

What I see happening in this discussion about the President's inherent executive power in not abiding by the current laws against wiretapping US citizens as he has done through the NSA program is an appeal to that tacit understanding without bringing it into the open.

On the other hand, until you clarify why questioning the President's inherent executive power does not imply or include this tacit understanding, to call it a red herring is begging the question.

The president's entire justification for NSA eavedropping is a grand deception built on numerous misunderstandings and vague implications.

The foundation of the deception is that the US is at war. That simply is not true, as Attorney Geberal Gonzales' statement before the Senate Judiciary Committee shows.

But the deception goes unchallenged. Based on it, however, the admin and its supporters can rely on all of these tacit understandings, such as the
President's right to declare martial law.

The point is, there's no war, no emergency that would support such an exercise of power. I say no emergency--the "war on terror" is a massive PR campaign against a threat that simply is not that great.

In this regard, I agree with Francis Fukuyama in his most recent writings. According to a Washington Post review of his new book:

And that may be the point. Fukuyama is in no hurry to confront the chronic problems of the Middle East. It isn't just that he doubts the feasibility of the neocons' nation-building schemes or their claims that democracy is the best antidote to Islamism. For Fukuyama, the challenge posed by Osama bin Laden's brand of radicalism is simply not that serious -- not, in his carefully chosen word, the sort of "existential" threat that should trouble our sleep.

Someone migh aver that the distinction between a declared war and the war on terror is just a matter of semantics. This is a logical mistake, I believe. The notion of a semantic difference implies that there are no real, practical consequences that adhere to the terms.

Whether a military action is a war or not does have practical consequences, however. As AG Gonzales pointed out, being at war carries with it consequences for treaties and related international policies into which the US has entered.

I suggest, moreover, that the question of whether the US is at war has legal and constituional consequences as well, not to mention political consequences. As some have suggested here, in a time of real war, the populace is willing to cut the executive branch some slack that it ordinarily would not do at other times. That is, the public is willing to give the President the benefit of the doubt when it comes to securing the borders and the country's defense.

What I have suggested is that the illusion of carrying out a war that is not really a war gives the President this benefit, when in fact he should not be given it. It's only an illusion whose political and social capital he can exploit because no one is willing to reveal what's happening for what it is: a lie and a deceit perpetrated not to gain the benefit of the public interest but instead a charade to further enable the political and social interests of a party and its supporters.

I am not so sure that the solution to this dilemma resides solely in the courts. The courts have shown themselves quite willing to expand the idea of a resolution for the use of military force in such a way as to equate it to what a President is allowed to do in a time of war. That is, the courts have bought into the notion that the President has the same powers under a resolution as s/he does during a time of war.

I suggested that war is one of these; the President's ability to declare martial law--abrogating civil and other rights--during emergencies seems to be a tacitly accepted prerogative or right of the President. I also suggested that this tacit understanding is the context within which many are willing to accept the current President's argument for executive privilege.

That's why I think the question of whether this is a war or not is important. If it is a war, then this tacit understanding about executive privilege seems to undergird all arguments. The reason why the courts might not wish to impinge on the President's "privilege" is because it realizes that if it does, then in a time of emergency he would be hampered from declaring martial law.

I had not read that Biden supported the view that a resolution to use force is the same as declaring war. That explains a lot about why the Dems are reluctant to support a censure. As I have argued before, the Dems don't want to support censure because they realize that they might need that power themselves when and if a Dem is President.

I find the argument that a resolution to use military force equates to a declaration of war as extremely dangerous and ultimately fallacious, based as it is on a false analogy. It is dangerous because it hands over to the President the discretion about when and where that force is to be used and in what manner.

It's a refusal of responsibility on Congress' part to uphold its own constitutional powers to oversee and maintain an ethical and political curb on the President's abuse of war powers.

It is fallacious, as I say, because the analogy between what a President can do during a war is, hypothetically, different from what s/he can do as a result of a resolution.

In terms of foreign policy, Zbigniew Brezinski has examined this question about what differentiates a war declaration from a resolution to use force. Alberto Gonzales acknowledged these differences in his testimony before the Senate Judiciary Committee.

The upshot of these remarks is that unless and until Congress either declares a war or acknowledges that a resolution to use force differs from an actual war, then they will have problems bringing the President to task for his abuse of executive power.

None of this should lead you to think that I approve of the President's actions, which I consider to be illegal and potentially dictatorial. The only way, however, that this power play will be curtailed is when Congress clearly defines what the President can and cannot do in times of emergency demanding martial law, times of war, and times of police actions called into being by resolutions to use military force.

But let's at least call a spade a spade--otherwise, we exist in this shadowy world where words mean what people want them to mean and everyone is going around confused and dazed because what they think is real is just a phantom devised by the political parties' spin machines.

That's the ethically terrible aspect of this "war" that haunts us now and probably will for some time to come. If you think that question is not being asked by the soldiers themselves, I suggest you take a look at some of the stories about returning soldiers that raely make it into the news--those detailing the ethical and moral hells that the soldiers go through when they finally make it back home, either physically whole but psychologically damaged or crippled and psychologically damaged.

Indeed what can make actions done in war worse than what they are already? That was your question earlier; I suggested, following your own comments, that what can make it worse is the fact that these actions were done in a situation that is based on lies and deceit--which, I believe, is what's happening now.

This is the ethical terror I spoke about. It's a terror that borders on despair. A despair that is willing to accept any reason for what one has done just as long as it takes away the guilt and doubt about whether one was indeed fooled into killing people for a lie.

For example, consider Zbigniew Brzezinki's recent comments about why it's important whether something is a war or not.According to Think Progress, Brzezinksi recently said:

But to describe America repeatedly as a nation at war – implicitly of course with a commander and chief in charge – is to contribute to a view of the world by America that stimulates fear and isolates us from others. Other nations have suffered more from terrorism than America. None of them has embraced that definition of reality.

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