from one emergency to another, from World War II to the Holloway: Hasn’t the imperial presidency, or hasn’t the Cold War, and then, eventually, to the war on terror. extension of presidential powers, actually been quite sucThere was a certain rationale for that at the outset, but when cessful if you look back at the Cold War and the efforts to President Truman decided to go into the Korean War, Secretary defend the United States? You may criticize what has hapof State Dean Acheson said to him, This is not a nuclear war, pened and deplore it, but hasn’t it actually been successful so your sole prerogative to initiate war is not technically an is- in achieving what it aimed to do: to provide for the defense sue, but we do not want your sole prerogative to be challenged of the United States? in any way, so go into Korea on your own initiative and don’t consult Congress in any way. And he did. Wills: Could it have been done without the deceptions and From that time on, there has been no congressional dec- the evasions of the Constitution? You would have to prove laration of war. that to me for me to say it doesn’t matter. The questioner is When the Constitution was drawn up, we were very proud saying, in effect, All right, we scrapped the Constitution; who of the fact that there was civilian control of the military, that cares? It worked. In a sense, that makes my point. That was we were not going to have a man on horseback, somebody like the defense of the Manhattan Project, and now that’s being the people in Latin America who were generals and also rulers extended to the whole thing. Could we not have prevailed of the country. Now, more and more, we’ve begun to think against the Soviet Union without the national security state? of the president as our commander in chief. “Commander With all this secrecy and classification and everything? I don’t in chief ” was initially a rather modest title. The president think that that’s proved. After all, other countries did not set is not even the commander in chief of the National Guard, up a national security state. the descendent of the militias, unless it is federalized. He’s certainly not the commander in chief of civilians. Holloway: [UC Berkeley law professor and former Bush Now, not only is he our commander in chief, when the administration legal advisor] John Yoo spoke here recently president now gets off the helicopter or Air Force One, he and argued that the Constitution does permit the expansion is saluted by Marines and he salutes back. Why is that? The of presidential authority and condone or allow enhanced military procedure is that you salute the uniform. A general interrogation techniques. What is your view of John Yoo’s out of uniform is not saluted. You only salute an officer supe- theory of the Constitution? rior to you who is in uniform. The president’s not in uniform; why do they salute him? Well, he’s our commander in chief, Wills: It is so laughable that the fact that Cheney ... adopted but he’s not a military officer. it and told the president to adopt it is a national disgrace. He When the attack occurred on the Twin Towers, [Vice said that the president cannot only initiate war – remember President] Dick Cheney was [in the White House] and the the Atomic Energy Act allowed him to initiate nuclear war – president was flying around somewhere. Cheney was informed then he went on to initiate other wars which were not even by intelligence agencies that there were other terrorist planes in the Atomic Energy Act. He [Yoo] says not only can the up there with new targets besides the Twin Towers. He thought president initiate war, only the president can. The obvious “planes,” plural. He authorized the scrambling of jets to shoot objection is that the Constitution says Congress shall declare them down without asking the president. His attitude was, war. He said, Well, we know what declare means. We found We’ve got to stop them before they reach the target, I don’t out from Samuel Johnson and his 18th century dictionary: have time even to ask the president. Scooter Libby, standing at It means “publicize.” his elbow, said that he did not hesitate more than a batter hesitates when he sees the pitch coming toward him. He “The president is not even the commander in chief said that to praise his decisiveness. The 9/11 Commission verified that though he called the president right after he of the National Guard ... unless it is federalized. He’s gave the order, he didn’t talk to him before he gave it. It certainly not the commander in chief of civilians.” was what he had been trained to do in those exercises to respond to nuclear war. Of course, this was not a nuclear attack, it was a bad attack, but it was not a nuclear attack. Holloway: How far has subverting of the Constitution gone? So, he acted outside the Constitution, outside the Congress, outside the military chain of command, outside the president! Wills: It’s very difficult. We know that certain presidents, That’s how far we’ve gone in our institutionalization of the to a certain degree, have tried to reverse this. Jimmy Carter same procedures that were used in the Manhattan Project for did; President Clinton, for instance, starting a massive dea very contained purpose and now has spread out throughout classification program which Bush immediately reversed and the executive. It’s quite scary. re-classified at a greater degree than before. President Obama came in promising that he was going Question & answer session with David Holloway, to be against many of these things – against extraordinary professor of history and political science, Stanford rendition or military tribunals or holding prisoners without University, moderator. legal representation or signing statements or a whole series of j u ne/j u ly 2010
THE COMMO N WE AL TH
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