Joseph Margulies Quotes
During the early Cold War, Truman concluded that inter‐branch deliberations over war and peace were luxuries the country could not afford. The constant threat of Soviet aggression meant that the nation was already at war, and to protect the country, the president had to have the unilateral power to act, with force if necessary, anywhere in the world. Every post‐war president has advanced some version of this claim to justify military action unauthorized by Congress.
Joseph Margulies, Attorney & Legal Scholar, Book Review, Political, Science Quarterly, Fall 2014
Sourced by: Eigen's Political and Historical Quotations
Actually, there are many in politics who to this day castigate Truman for his decision, but for Bloomberg’s generation and before, anyone would have pushed the button. And there are some who still fault Obama as technically, the U. S. had no right to violate Pakistani airspace and kill a resident of their state without any due process in the U. S. or Pakistan. Bloomberg would have easily pushed that button, but there are many officials who warned against it, and earlier Presidents—George W. Bush and Bill Clinton who did not authorize assassinations in foreign (allies) countries.
When the Senate was debating the Gulf of Tonkin Resolution, which would empower the President to take "all necessary measures" to repel any armed attack on U. S. forces, Senator Morse was one of only two Senators opposing the resolution:
President George W. Bush had ignored a federal law and tapped the phones of Americans without probable cause and a warrant issued by a court. The President’s defenders argued that the President, as Commander in Chief, has the Constitutional responsibility to lead the military and protect the nation. Intelligence gathering is part of military activity. Therefore the intelligence gathering is a Constitutional duty and the Congress, under the separation of powers doctrine, may not interfere with the President’s Constitutional Duty to conduct intelligence. Under this doctrine, the President need not obey laws that he believes impinge on his management of the war effort and the defense of the nation. Most legal scholars believe that this argument is nonsense, but the George W. Bush administration has stated the doctrine and it was the subject of much litigation.
President George W. Bush had ordered NSA agents to bug the phones and email of American citizens who might have been talking with an overseas party or e-mailing them out of the country. The administration thought that American citizens might be part of terrorist sleeper cells or unwittingly were aiding terrorists. The law prohibited such activity—where American citizens were involved—without getting a court order. However, the President claimed that he had the inherent power as commander in chief of exempting the court requirement. Others maintained that even the President is not above the law. What was the big puzzle was that there was a secret court Congress had established just for such cases, but the administration instead decided to bypass the court.
In 1995 the president had agreed with our allies to send troops to support a peace in Bosnia if there was one, but many in Congress attempted to block that possibility.
Alberto Gonzalez, White House Counsel and later Attorney General who was forced to resign and David S. Addington, Counsel to the Vice President, had come up with a novel view of the powers of the presidency. They argued that since the President is the Commander in Chief, in a war situation or intelligence gathering thereto, has the Constitutional responsibility for that function, he need not obey any laws of Congress as in the conduct of the war Congress would be impinging on the Constitutional separation of powers which itself was prohibited by the Constitution. The argument did not find any significant legal support but for a while the George W. Bush White House behaved as if this were the law, despite the fact that even in the American Revolution and the War of 1812 Congress passed laws regulating the conduct of the armed forces as is provided for in other parts of the Constitution. Yet even Goldsmith would allow the President some powers that many think are unconstitutional and/or belong to Congress. See {32436}.
Joseph Margulies is an American attorney with the MacArthur Justice Center and a Professor of Law and Government at Cornell University in Ithaca.
