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Jonathan Alter, Round 2

Thursday, January 26, 2006  |  posted by Hugh Hewitt
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Just had Newsweek’s Jonathan Alter on to discuss his new column in which he asserts that we are facing a constitutional crisis, and that “[o]ur whole system is on the line.” Radioblogger will have the transcript up later, but once again, JA’s rhetoric is simply unsupported by the law and the history he purports to cite. I think he and many in MSM are simply overmatched by the law here, and knowingly misled into silly arguments by ideologically driven left-wing lawyers who don’t level with them on what they need to read and why.

When I informed Alter of University of Chicago Law School Professor Cass Sunstein’s position on the NSA wirtetaps, he seemed, for the first time, to realize his certainty on these issues was in fact not certain. That’s progress.

What isn’t progress is that the left JA represents simply refuses to read or think or even engage the compelling arguments supporting the president and the cases on which those arguments are grounded, preferring instead to quote randomly from Madison without even an idea of where the quote is taken from and what the result of that particular debate was. Alter in fact does not seem to get the significance of the fact that the AUMF renders pointless his Madison quote (more below), and that he is simply and completely wrong in his certainty that Robert Jackson’s tripartite analysis in Youngstown Sheet & Tube supports his ringing of the constitutional crisis bell.

Confronted with his errors, JA gamely pushed on citing other as yet imprecisely located bits of Madisonian wisdom. But wrong is wrong, and I am not sure he should get a third bite at the apple when he resolutely will not read the key cases and makes no bones about it. (Here is my first interview with Alter in which he acknowledged –more than a month ago– that he had not read key cases, an admission he makes again tonight.)

One example of irrelevant posturng from the column that is easily exposed flows from the Madison quote mentioned above. I tried to point this out to JA on air, but I don’t think he understood the point.

Here’s the quote:

But at that time, the 18th century, the Founders could not have been clearer about the role of Congress in wartime. As James Madison put it, “In no part of the Constitution is more wisdom to be found than in the clause which confides the question of war and peace to the legislative and not to the executive branch.”

First, on the face of it, Madison is talking about the declaration of war, not, as JA asserts, “the role of Congress in wartime.”

Strike one.

Strike two comes from the fact that JA did not know the origin of the quote he used. He seems to imply with his refernce to the Founders that this is from the Federalist Papers. But it is from Madison’s Letters of Helvidius, written in 1793 in opposition to President Washington’s issuance of the Neutrality proclamation.

Strike three comes from the fact that Madison’s opponent in this debate was Hamilton, writing as Pacificus. Joseph Story, in his famed Commentaries on the Constitution, writes about that debate:

Sec. 1564. In the year 1793, president Washington thought it his duty to issue a proclamation, forbidding the citizens of the United States to take any part in the hostilities, then existing between Great Britain and France; warning them against carrying goods, contraband of war; and enjoining upon them an entire abstinence from all acts, inconsistent with the duties of neutrality.130 This proclamation had the unanimous approbation of his cabinet.131 Being, however, at variance with the popular passions. and prejudices of the day, this exercise of incidental authority was assailed with uncommon vehemence, and was denied to be constitutional. It seems wholly unnecessary now to review the grounds of the controversy, since the deliberate sense of.the nation has gone along with the exercise of the power, as one properly belonging to the executive duties.132 If the President is bound to see to the execution of the laws, and treaties of the United States; and if the duties of neutrality, when the nation has not assumed a belligerent attitude, are by the law of nations obligatory upon it, it seems. difficult to perceive any solid objection to a proclamation, stating the facts, and admonishing the citizens of their own duties and responsibilities.133″”

Now here is Jackson’s summary of the three zones from his opinion in Youngstown:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. [n2] In these circumstances, [p636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, [p637] as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law. [n3] 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [p638] the Congress from acting upon the subject. [n4] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Finally, here are the crucial segments of Justice O’Connor’s opinion in Hamdi, citing the AUMF, which clearly propels President Bush’s executive order into Zone 1 of Jackson’s three zones, a place from which it cannot be displaced no matter how much MSM and assorted radical Democrats and sympathetic law professors try:

The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.
The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident[s] of war.” Ex parte Quirin, 317 U. S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross 571, 572 (2002) (“[C]aptivity in war is ‘neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war’ ” (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int’l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) (“The time has long passed when ‘no quarter’ was the rule on the battlefield … . It is now recognized that ‘Captivity is neither a punishment nor an act of vengeance,’ but ‘merely a temporary detention which is devoid of all penal character.’ … ‘A prisoner of war is no convict; his imprisonment is a simple war measure.’ ” (citations omitted); cf. In re Territo, 156 F. 2d 142, 145 (CA9 1946) (“The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely, and in time exchanged, repatriated, or otherwise released” (footnotes omitted)).
There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U. S., at 20. We held that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.” Id., at 37-38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id., at 30-31. See also Lieber Code, ;153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 273 (contemplating, in code binding the Union Army during the Civil War, that “captured rebels” would be treated “as prisoners of war”). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States,” Brief for Respondents 3; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.
In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

Not that any of these sources matter to JA, or the left in general. They have their script and they will read from it again and again until they have the electoral stuffings knocked out of them again in November.

They appear beyond embarassment, and certainly unrestrained by fact or evidence.

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