The Growth of the Unitary Executive - Saying
Goodbye to the Separation of Powers: US
Presidential War Powers Before & After the
`Long War' (aka The GWOT)
US Foreign Policy
Fall 2009
Dave McCuan
Masaryk University
Please note, again:
These lecture slides will be
placed on the IS System for
the class
Class Discussion Question
After reading Wildavsky on the Two
Presidencies, think about Presidential
decisions to use military force.
Should that decision be made by a deliberative
democratic body like Congress, or a unitary,
decisive individual like the president?
Is deliberation always preferable to democracy?
Is democracy always preferable to deliberation?
Under what circumstances should the decision
to go to war be solely in the president's hands?
And, finally, how does this exercise of power
(this tension over war-making) affect our
knowledge of "presidential failure in USFP?"
War in US Political History, Fall 2009
Extent of Presidential War Powers
* How broad is the President's defensive
war power?
* Since all American wars are defensive
* Can the President always act without
Congressional approval?
* Can Bush invade Iran as a defensive measure?
* Can he order domestic spying?
* Can the Pres' inherent power to defend
the US be circumscribed by Congress?
Declared & Undeclared Wars
ˇFormal Declarations:
Un/Declared Wars
* No Declaration of War
­ 1950-53: Korea
­ 1962: Cuba
­ 1964: Vietnam
­ 1965: Domican Republic
­ 1970: Cambodia
­ 1980: Iran
­ 1981: El Salvadaor
­ 1981: Libya
­ 1982: Lebanon
­ 1983: Grenada
­ 1987: Persian Gulf
­ 1988: Panama
­ 1991: Iraq
­ 1992: Somalia
­ 1993: Bosnia
­ 2003: Iraq
Commander in Chief
"The President shall be Commander in
Chief of the Army and Navy of the United
States, and of the Militia of the several
States, when called into the actual Service
of the United States"
- Article I Section 2, US Constitution
Setting Up Conflict The
Congress Shall Have Power:
"To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on
Land and Water; To raise and support Armies, but no
Appropriation of Money to that Use shall be for a
longer Term than two Years; To provide and maintain
a Navy; To make Rules for the Government and
Regulation of the land and naval Forces; To provide
for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining,
the Militia..."
- Article I Section 8, US Constitution
What did the Founders Mean?
* Rejected British model
* Knew Locke's argument and rejected it
* Knew about limited war and didn't make
an exception for it
­ A Quasi-War with France during the
Revolutionary War period
* Made exception for sudden attacks
* Military subordinate to civilian power
Madison's Reasoning
* War is, "the true nurse of executive
aggrandizement...In war, the honors and
emoulments of office are to be multiplied; and it
is the executive patronage under which they are
to be enjoyed. It is in war, finally, that laurels are
to be gathered; and it the executive brow they
are to encircle. The strongest passions and most
dangerous weaknesses of the human breast;
ambition, avarice, vanity, the honorable or venial
love of fame, are all in conspiracy against the
desire and duty of peace."
John Jay, Federalist 4
* "Absolute monarchs will often make war when
their nations are to get nothing by it, but for
purposes and objects merely personal, such as
a thirst for military glory, revenge for personal
affronts, ambition, or private compacts to
aggrandize or support their particular families or
partisans. These and a variety of other motives,
which affect only the mind of the sovereign,
often lead him to engage in wars not sanctified
by justice or the voice and interests of the
people."
20th Century Uses of War
Powers
"I don't have to get
permission from some
old goat in the United
States Congress to
kick Saddam Hussein
out of Kuwait."
-President George H. W.
Bush, 1990
Why the shift from Congressional to
Presidential Preeminence in War Powers?
* General growth of Presidential prominence
* Military technology
* Secret agencies, growth of intel infrastructure
* US becomes global power
* Alternative sources of legitimacy
* Theory adoption of the "unitary Executive" thesis
& legal framework
Why the shift from Congressional to
Presidential Preeminence in War Powers?
* General growth of Presidential prominence
* Military technology
* Secret agencies
* US becomes global power
* Alternative sources of legitimacy
* Theory adoption of the "unitary Executive" thesis & legal
framework
* ADD: The Congressional abdication of
responsibilities ­ an important caveat
* Can, and does Congress, pardon the expression, "fight
back?"
Undeclared Wars
* Gulf of Tonkin Resolution
­ Aug 4, 1964: Pres. Johnson reports to Congress
* N.Vietnamese patrol boats made an unprovoked attack on the
destroyer USS Maddox in int'l waters, & claimed "unequivocal proof"
of an "unprovoked" second attack against the Maddox
­ Aug. 7, 1964: Congress passes H.J.Res 1145
* "to take all necessary steps, including the use of armed force, to
assist any member or protocol state of the Southeast Asia Collective
Defense Treaty requesting assistance"
* Vote in House 416-0; in Senate 88-2
­ Squadron commander James Stockdale, flying overhead
* "[I] had the best seat in the house to watch that event; our destroyers
were just shooting at phantom targets -- there were no PT boats
there.... nothing there but black water and American fire power."
­ Johnson later said in private:
* "for all I know, our Navy was shooting at whales out there."
The Gulf of Tonkin Resolution
"Congress approves and supports the
determination of the President, as Commander
in Chief, to take all necessary measures to
repel any armed attack against the forces of
the United States and to prevent further
aggression...[the US is] prepared, as the
President determines, to take all necessary
steps, including the use of armed force, to
assist any member or protocol state of the
Southeast Asia Collective Defense Treaty
requesting assistance in defense of its
freedom."
Covert Wars & Actions
* Defying Congress
­Ronald Reagan and the Boland Amendment
­ Barred US intelligence agencies from spending funds "to
support military or paramilitary operations in Nicaragua."
- If the president had authorized Col. Oliver
North's actions:
Would the action have been constitutional?
Key ?: "Justiciability" in Wartime
* Mora v. McNamara (1967)
­ Are these questions "justiciable?"
I. Is US military activity in Vietnam a 'war' within the meaning of
Article I, Section 8, Clause 11 of the Constitution?
II. May the President draft for that military activity, when no war has
been declared by Congress?
III. Do treaty obligations of the US enlarge/restrict pres. power?
IVa. Do US military operations fall within the terms of the joint
Congressional ('Tonkin Bay') Resolution of August 10, 1964?
IVb. If the Resolution purports to give the Pres. authority to commit
US forces to armed conflict limited only by his own absolute
discretion, is the Resolution a constitutionally impermissible
delegation of all or part of Congress' power to declare war?
* Answer these questions vis a via `The Long War'
(i.e., The Global War on Terrorism, GWOT)
War Powers Resolution (WPR)
Consulting Requirement:
­ "The President in every possible instance
shall consult with Congress before introducing
US Armed Forces into hostilities or into
situations where imminent involvement in
hostilities is clearly indicated by the
circumstances, and after every such
introduction shall consult regularly with the
Congress..."
War Powers Resolution (WPR)
Reporting Requirement
­ In the absence of a declaration of war, when
troops are introduced
* 1) Into hostilities or imminent hostilities
* 2) Into the territory of a foreign nation armed for
combat
* 3) In numbers which substantially enlarge the
forces in a nation or region...
War Powers Resolution (WPR)
* Reporting
­ The President shall submit within 48 hours to
the Speaker of the House and President of
the Senate a report, in writing including
* The circumstances requiring forces
* The constitutional and legislative authority under
which troops were introduced
* The estimated duration of the hostilities
War Powers Resolution (WPR)
* Automatic Removal Mechanism
­ Within 60 days after the report is submitted or
required to be submitted, the President shall
terminate any use of United States armed
forces unless the Congress
* Declares war
* Has extended by law the 60 day period
* Is physically unable to meet
Post-WPR Presidential Behavior
* Reagan
* Bush I
* Clinton
* Bush II ­ Distinct, post-9/11 model
* Common behaviors:
­ Relying on United Nations as source of legitimacy
­ Denying Congress has a role in initiating conflict
­ Moving troops first, to apply pressure to Congress
Why does Congress fail to protect its
Constitutional role?
* Standing army/navy/air force give
president first-mover power & advantage
* Constituents rally around the flag
* Members hold common misconceptions
about powers of Commander in Chief
Misconceptions
* President Bush (#41)
­ "There is a fundamental difference of opinion
between the Senate and the White House
over the Senate's role in declaring war--one
that dated back before the War Powers Act"
Misconceptions
* Clinton (#42)
­ "I think I have a big responsibility to appropriately
consult with Members of Congress in both parties--
whenever we are in the process of making a decision
which might lead to the use of force. But I think that,
clearly, the Constitution leaves the president, for good
and sufficient reasons, the ultimate decision making
authority."
­ "The authority under which air strikes can proceed,
NATO acting out of area pursuant to UN authority,
requires the common agreement of our NATO allies."
Misconceptions
* Senator Judd Gregg (R-NH), 1995
­ "It is appropriate that we as a Congress act to either
approve or disapprove that action...Clearly the power
to undertake actions which put American soldiers'
lives in harm's way lies primarily and first with the
President, but obviously we as a Congress also play
a major role, not only on the appropriating side, but
more importantly, on the side of being concerned for
our soldiers, many of whom will obviously be our
constituents."
This leaves us, at this point to ask the
question:
Under what circumstances should the
President be responsible for war powers?
Are those criteria always met in the
modern era?
Post-9/11, for example?
Is Congress equipped to handle its
constitutional role?
Presidential War Powers
After September 11, 2001
So, what of the ExecutiveLegislative
Tensions Over Force
in the Post-9/11 Era?
Presidential Prerogative Power
* Locke's idea that the executive can
assume extra-legal and extraconstitutional
powers to preserve the
nation, in times of crisis.
* Cited, famously (infamously?) by John
Yoo, now at Boalt & UC Berkeley School
of Law.
Non-Wartime Prerogative Power
* Labor strikes
* Great depression
* Desegregation crisis
* Riots
Bush (#43)'s Response to 9-11
* Afghanistan
* Expanded investigative authority
* Enemy combatant detentions
* NSA Wiretapping
* War in Iraq
Congress Authorizes the
President to use...
"All necessary and appropriate force
against those nations, organizations, or
persons he determines planned,
authorized, committed, or aided the
terrorist attacks that occurred on
September 11, 2001 or harbored such
organizations or persons."
Authorization for Use of Military Force
* Public Law 107-40 (Sept. 18, 2001)
­The President is authorized to use all necessary
and appropriate force against those nations,
organizations, or persons he determines planned,
authorized, committed, or aided the terrorist
attacks that occurred on Sept. 11, 2001, or
harbored such organizations or persons, in order
to prevent any future acts of international
terrorism against the United States by such
nations, organizations or persons.
­This section is intended to constitute specific
statutory authorization within the meaning of
section 5(b) of the War Powers Resolution.
U.S.A. P.A.T.R.I.O.T. Act
1. Allows surveillance if organizations appear to be
intended to influence government policy by intimidation or
coercion
2. Bars entry into the US to anyone who has ever said
anything that undermines US efforts against terrorists
3. Authorizes covert searches of a person's home or
office if a warrant would hurt the investigation
4. Allows the FBI to request private materials with the only
stated cause to be to protect against international terrorism.
5. Allows the government to conduct secret wiretaps and
personal searches without having to show probable cause
as long as the purpose is to collect foreign intelligence
6. Allows the attorney general to detain immigrants for 7
days with no charges.
War in Iraq
"We don't want to be in the position of
asking Congress to authorize the use of
force when the president already has that
full authority. We don't want, in getting a
resolution, to concede that it was
constitutionally necessary."
- An anonymously named Senior Bush
Administration Official, quoted in the
Washington Post, August 26, 2002
Senator Byrd on the Iraq Resolution
"We are being hounded into action
on a resolution that turns over to
President Bush the Congress'
Congressional power to declare
war...We may not always be able
to avoid war, particularly if it is
thrust upon us, but Congress must
not attempt to give away the
authority to determine when war is
to be declared. We must not allow
any president to unleash the dogs
of war at his own discretion and for
an unlimited period of time." (NYT
10/10/02)
Congress' Authorization of Force in Iraq
1. The Congress of the United States supports
the efforts by the President to
­ a. Strictly enforce through the UN Security Council all
relevant Security Council resolutions applicable to
Iraq and encourages him in those efforts
­ b. Obtain prompt and decisive action by the Security
Council to ensure that Iraq abandons its strategy of
delay, evasion and noncompliance and promptly and
strictly complies with all Security Council resolutions
Congress' Authorization of Force in Iraq
1. President is authorized to use the
Armed Forces of the US as he determines
necessary and appropriate in order to:
­ a. Defend the national security of the United
States against the continuing threat posed by
Iraq
­ b. And enforce all UN Security Council
resolutions regarding Iraq.
2. Requires the president to comply with
the WPR requirements
Key Questions that Affect Practice of
War-making Policies & Presidential
Failure
* Did the President legitimately use prerogative
powers in the aftermath of 9/11? Where
should the boundaries of the president's
powers be in the war on terror? Who should
impose checks on him? How?
* What values should have guided American
policymaking in the lead-up to the Iraq war:
democratic deliberation or decisiveness?
Why? Which one out? Why?
* Why do these questions matter at all?
Part II
Crisis of Presidential Power & the
Failure to Govern in USFP: The
Move to the Unitary Executive
1. Commander in chief
2. Chief diplomat
3. Chief administrator
4. Chief of state
5. Chief legislator
6. Voice of the people
7. Chief judicial officer
The Constitutional Roles of the US President
Affecting USFP
1. Time
2. Information
3. Bureaucracy
4. Congress
5. State & Local, Minor Governments
6. Political Parties
7. Media
8.Public Opinion
9. The Global Context
Presidential Power ­ Limits & Constraints
ˇ It is commonly thought that the president has almost
unlimited power.
* In fact, though leading in his Constitutional role through 7
jobs, the president also has to meet the expectations of
the Congress, the Senate, & by extension, the public.
* Congress can impeach, overrule vetoes.
* Beginning is easy, but then each decision is checked
and criticized.
Impeachment
of President
Andrew
Johnson
The Paradox of Presidential Power
ˇ Elected - strong & influential; More
recently, a high rate of EO's issued
* Honeymoon with Congress and Media
* Affairs in office affect public approval
* Since Vietnam, the majority party of
Congress is different than the elected
president's
* During time, usually, public support
declines and then the president can
exercise power less efficiently
Presidential Life Cycles
Support, President George W. Bush, 2002 - 2005
Recent Obama Slide in Pop.:
Released by Gallup, 21 October 2009
Obama Slide, cont'd
ˇ President is elected to Govern
* However, since Vietnam the Congress is
led by the opposite party to the president's
* This makes exercising power difficult &
limited
* Lyndon Johnson: "You can't get anything
through when half of the Congress is
thinking how to beat you""
Growing Crisis of Governance & Leadership
ˇ Strong leaders exercise power easier
* A president that commands - fails
* A president that persuade - succeeds
3 Elements:
1. Professional Reputation- affects the way other
politicians judge the president's actions.
2. Public Prestige is mainly counted for in federal
bureaus, Congress or Media.
3. Choices- the President eventually decides to
which advisor to listen and how to act.
Presidential Leadership & USFP
ˇ When being new in office, whether first or
second term, the President claims to have
electoral mandate.
* This means that all his decisions, actions and
moves are according to the people's desirethey
recently approved him, so he can do
almost everything he claimed in his
propaganda.
* This changes with time, sooner or later.
Electoral Mandate
ˇ Vietnam & Watergate symbolized the end of
the US as a global dominator in international
politics.
* Media became more critical, public more
cynical.
* Constraints on President ability to run foreign
policy increased, and Congress since then is
always opposition.
* The USA does not unite again one common
characteristic- Anti Communism.
The Post-Cold War Presidency Thesis
ˇ Presidential Management Theory
considered to start with President Lyndon
Johnson(1963).
* Means that the people holding high
positions in federal offices feel directly
committed to the President himself.
* The President is surrounded by experts
and advisors, such as The National
Security Council (NSC) & The Office of
Management and Budget (OMB).
The Imperial Presidency Thesis
ˇ Richard Pious argues that:
* Gives the President almost unlimited power.
* The maximum the constitution permits.
* Using power during Crisis- using powers as
national security/ national interest.
* May be used in emergencies: Lincoln (Civil
War),Roosevelt (WW II) and Bush (2003) .
* Shouldn't be used for domestic issues.
* Risk if misused - losing power (LEGITIMACY)
dramatically.
Prerogative Power ­ An Excessive Power of the
President?
The Conduct of War Carries With It a High Price: What
to do with Americans & Non-American Enemy
Combatants & Their Detention? What is the Process?
Military Order of Nov. 13, 2001
* Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism
* Findings
­ "it is necessary for individuals subject to this order ..
To be detained, and ... tried ... by military tribunals."
­ "it is not practicable to apply in military commissions
under this order the principles of law and the rules of
evidence generally recognized in the trial of criminal
cases in the US district courts."
­ "an extraordinary emergency exists for national
defense purposes, that this emergency constitutes an
urgent and compelling government interest ..."
Note how these findings
resemble those found in
legislative acts
Trial of Guantanamo Detainees
* By military commission [pursuant to] orders and
regulations issued by the OSD (by the SecDef)
himself)
­ Composition (3-7 military personnel), venue and time
­ Admission of probative evidence "in a manner
consistent with the protection of classified
information"
* Some standard criminal procedures adopted
­ Conviction by 2/3 of judges
* Standard of proof: "beyond a reasonable doubt"
­ Appeal and review by SecDef or President
­ Sentence up to life imprisonment / death
Constitutional Issues
* Due Process - Generally
­Dec. Independence: causes for separation *
King George III has "affected to render the Military
independent of and superior to the Civil Power."
* "depriving us, in many Cases, of the Benefits of Trial
by Jury"
­Ex parte Milligan (uprising during Civil War)
* "Martial law ... destroys every guarantee of the Constitution
... Civil liberty and this kind of martial law
cannot endure together; the antagonism is irreconcilable;
in the conflict, one or the other must perish."
* No military trials of citizens, at least if civilian courts
are open
Constitutional Issues
* Due Process - Criminal Procedure Rights
­ 5th Amendment *
"No person shall be held to answer for a capital or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia"
* "nor be deprived of life, liberty, or property, without
due process of law"
­ 6th Amendment *
"In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury"
Constitutional Issues
* Structural ­ Separation of Powers
­ Does President "usurp" Art. III powers?
* Art. III, § 2, Clause 1: "The judicial Power shall
extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the US, and Treaties"
­ Does Military Order "obstruct" Art III functions?
* Preclusion of review by Art. III courts
­ Does Military Order "usurp" power of Congress
* Art. I, § 8, Cl 11: "to declare war .. and make Rules
concerning Captures on Land and Water"
* Clause 14: "to make rules for the Government and
Regulation of the land and naval Forces"
Challenging Detentions
* Habeas Corpus (HC) clause, Art. I, § 9,
Cl. 2:
­ "The privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases
of Rebellion or Invasion the public Safety may
require it."
* Habeas Corpus statute, 28 U.S.C. § 2241
­ "(a) Writs of habeas corpus may be granted by
the Supreme Court, any justice thereof, the
district courts and any circuit judge within their
respective jurisdictions."
Hamdi v. Rumsfeld (2004)
* Legality of Military Detention and Trial
­ Due Process issues (incl. 5th/6th amendments)
­ Separation of Powers issues
* Military (Executive) Order of Nov. 13, 2001
­ What is an Executive Order?
* What Std of Review (aka, "Jackson Zone)
applies?
­ Zone 1: Congress has authorized pres. action
* Authorization for Use of Military Force
­ Zone 2: Pres. acts amid cong'l silence
­ Zone 3: Pres. acts against cong'l disapproval
* Non-Detention Act (aka, the NDA, circa 1971)
Hamdi v. Rumsfeld (2004)
* Justice O'Connor says Zone 1
­ Authorization for Use of Military Force (AUMF)
* Capture and detention are incidents of war; an
exercise of "necessary and appropriate force"
* As such, AUMF "is explicit cong'l authorization for the
detention of individuals" even though it
­ never mentions detentions; doesn't mention US citizens
­ What if Zone 3?
* Can Pres. ignore Non-Detention Act? US says yes.
* Is detention & trial of combatants a matter entrusted
solely to President, with no shared power in congress
* What if in "a moment of genuine emergency"?
­ What if Zone 2?
Hamdi - Plurality
* Can detain citizens as Enemy Combatants (EC)
* So long as active combat is underway
­ Include unconventional war against terrorism?
* But, HC available unless suspended
­ Envisions factual determination by Art III court
* Hamdi is entitled to Due Process (DP) hearing
­ Matthews v. Eldridge balancing of interests
­ "State of war is not a blank check for the President
when it comes to rights of Nation's citizens"
Hamdi ­ Plurality USSC Decision
* Fair opportunity to rebut Gov't's assertions
before "neutral decisionmaker"
­ Can be military tribunal
­ Includes access to counsel
* Tailored to exigencies of circumstances
­ Hearsay may be allowed
­ Burden shifting upon prima facie case
* Timing
­ Battlefield captures: DP procedures not req'd
­ Continued detention requires DP
Hamdi v. Rumsfeld (2004)
* Should NDA (Non-Detention Act) be read
broadly and AUMF narrowly?
* Madison: "The constitution supposes, what the history
of all Governments demonstrates, that the Executive
is the branch of power most interested in war, and
most prone to it. It has accordingly with studied care,
vested the question of war in the Legislature."
* George Mason: "Was against giving the power of war
to the Executive because not safely to be trusted with
it [he was] for clogging rather than facilitating war, but
for facilitating peace."
* Magna Carta: King must obey "the law of the land"
Hamdi ­ Souter Concurrence
* President does not have unilateral power to
detain US citizens, even during war
* SoP and NDA require clear cong. authoriz'n
* Force Resolution is insufficient authorization
­ Focus is on military power, not detention
­ Could be read to authorize Law of War
practices
* Pres. claims Geneva Conv. doesn't apply; ECs are
not "prisoners of war"; and not entitled to contest
status
­ USA PATRIOT Act limits detentions to 7 days
Hamdi ­ Scalia Dissent
* This case controlled by Ex Parte Milligan
­ US citizen cannot be detained by military
­ Quirin dealt with "admitted" ECs
* Only constitutional options are to charge
Hamdi (e.g., treason) or suspend writ HC
­ No charges filed
­ Force Authorization is not a suspension of writ
­ No authorization as required by NDA
* Function of writ is to test executive process
­ Not to supply missing elements
Hamdi ­ Thomas Dissent
* SoP has no place in military/foreign affairs
­ Constitution recognizes a "unitary executive"
­ That admits of no judicial interference
* Pres' determination is binding; courts can't 2d
guess
* "even the ancient Israelites eventually realized the
shortcomings of judicial commanders-in-chief"
* Pres has discretion to protect nat'l security
­ Both inherently and from Force Authorization
* Supplies 5th vote on AUMF as exception to NDA
* Not limited to battlefield ops, or Law of War
* Access to counsel/DP hearing will hobble war effort
The Unitary Executive Thesis
* J. Clarence Thomas in Hamdi
­ Constitution recognizes a "unitary executive"
* SoP does not apply to pres' national security powers
­ "The Executive's decision that a detention is necessary ...
need not and should not be subjected to judicial review."
* Cicero: InterInter armaarma enimenim silentsilent legesleges
­ "In times of war, the law falls silent."
* Authorization for Use of Military Force
­ The President is authorized to use all necessary and
appropriate force against nations .. or persons he
determines planned, authorized, committed, or aided
the [9/11] terrorist attacks ... in order to prevent any
future acts of int'l terrorism...
The Unitary Executive, cont'd
* Article 48, Recall the Constitution of the
Weimar Republic (1919)
­ "In case public safety is seriously threatened or
disturbed, the Reich President may take the measures
necessary to re-establish law and order, if necessary
using armed force. In the pursuit of this aim, he may
suspend the civil rights, partially or entirely."
­ March, 1933
* Reichstag cannot assemble parliamentary majority
* President Paul von Hindenburg invokes Article 48 to
give Chancellor Adolph Hitler emergency power to
rule by decree
* The rest is history
Stevens in Padilla v. US (2004)
"At stake in this case is nothing less than the essence
of a free society. Even more important than the method
of selecting the people's rulers and their successors is
the character of the constraints imposed on the
Executive by the rule of law. Unconstrained Executive
detention for the purpose of investigating and
preventing subversive activity is the hallmark of the Star
Chamber.
Executive detention is not justified by the naked interest
in using unlawful procedures to extract information.
If this Nation is to remain true to the ideals symbolized
by its flag, it must not wield the tools of tyrants even to
resist an assault by the forces of tyranny."
Inter arma enim silent leges?
"Safety from external danger is the most
power-ful director of national conduct. Even
the ardent love of liberty will, after a time,
give way to its dictates ... the alarm
attendant on a state of continual danger will
compel nations the most attached to liberty,
to resort for repose and security to
institutions which have a tendency to to
destroy their civil and political rights. To be
more safe, they, at length, become willing to
run the risk of being less free."
- Hamilton, Federalist No. 8