Use of the war powers

By Maria Kristofer

Subjects: Law and legislation, Prevention, executive power, presidents, War and emergency powers, terrorism, Terrorism, War on Terrorism, 2001-2009, Executive power

Description: The presidency of George W. Bush was widely criticized as tyrannical and extra-legal, an assessment based primarily on the presidency’s use of the war powers doctrine in the war against terrorism. This new study complicates the picture by presenting the use of the war powers doctrine in its historical context. By surveying uses of this power at the founding period, by the World War II presidencies of Roosevelt and Truman, and by subsequent legislative responses of the War Powers Resolution, the author reveals that the doctrine must cohere around substantive ideals of reason in order to be constitutional and shows how failures to keep to this standard are responsible for allegations of executive tyranny. In context of a comprehensive philosophical framework such as of German legal philosopher Carl Schmitt’s theory of decision making on a state of exception in self-defense, the presidency of George W. Bush emerges as conflicted between constitutional uses of the war powers and other legislative and policy developments that used the war powers without a necessity of self-defense and culminated in a metaphysics that permitted torture. The author attributes this conflict to poor or overly broad legal definitions, mostly of criminal law, propagated by the United States Congress. Placed in a context of a discussion of the historical legal philosophical underpinnings of the war powers doctrine, the presidency of George W. Bush appears in a new light. While its primary objective was to fight terrorism by means of a strict interpretation of the war powers doctrine, it found itself at a cross-roads with a failure to institute immigration reform and broad attempts to reform criminal law, such as by means of claims by terrorists for protection under international law. This challenging study disentangles the threats of policy and legislation contemporaneous with the Bush’s presidency use of the war powers to raise provocative questions about corporate accountability to fight immigration related crimes, the use of federal courts to adjudicate claims of suspected terrorists, federal court adjudication of claims of immigrants whose due process rights are violated as a result of legislation that criminalizes the immigration process, and legal fallacies that result when the war powers doctrine is taken too literally by the courts. It is a thought provoking antidote to a standard criticism of a modern presidency.