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“War Powers Without War”

“War Powers Without War”  by Robert Tracinski,  published by ARI on December 3, 2001.

In this essay Mr. Tracinski seems to worry about growing presidential power, but it soon becomes apparent that his worry is only pretense. His real goal is to justify that power.

He says we should not mind government violating the Bill of Rights during war so long as the violation is “limited and temporary.” He neglects to tell us how great the limit may be or how long a time counts as temporary. (To him temporary means for the duration of the war, a length of time, though, on which he places no limit.) He goes on to say that to ensure that the violations are “limited and temporary” Congress must declare the war.

Thus Mr. Tracinski sets up a phony opposition. If the president violates your rights, that is wrong; if Congress violates your rights – describing the extent and setting a time-limit – that, he claims, is perfectly all right.

Of course both are wrong. The Bill of Rights does not contain the caveat: Except at the whim of Congress.

Nor the caveat: Except in time of war. The Founders were well aware of the danger of making that exception. When James Madison said “If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy,” he was giving a warning,  not an excuse.

That’s a brief overview of Mr. Tracinski’s article and our position on it. Details follow.

Mr. Tracinski starts out by noting “the expansion of presidential power since Sept. 11” and says congressional action is needed “not to revoke these powers, which are mostly justified, but to ... ensure that they will be limited and temporary.” And the congressional action that will ensure this is to hand those powers to the president with a “declaration of war.”

Regarding “a ‘homeland command’ to coordinate military actions within our own borders” and other domestic measures proposed at the time of his writing, Mr. Tracinski is unconcerned:

“There is a good argument in favor of all of these measures. They are all necessary and appropriate in time of war. The commander in chief must have the authority to act decisively. Greater secrecy is needed to save the lives of soldiers and to protect vital intelligence sources. ...

“All of these expanded government powers are justified as special emergency measures during wartime.”

Mr. Tracinski sees no problem with an “emergency” that extends over twenty years; “war” – that magic word – justifies anything, including twisting “emergency” beyond recognition. Mr. Tracinski’s only concern is that Congress go along with it. He elaborates:

“The power of government always tends to expand during wartime, sometimes legitimately [i.e. in accordance with a law], sometimes not; during World War II, for example, FDR imposed a de facto economic dictatorship. But this wartime expansion of government is always mitigated by the fact that it is explicitly temporary, that it is justified only ‘for the duration.’ ”

Mitigated ! What a word ! One would be hard pressed to find a more pragmatic – in the sense of unprincipled – position.

Would Ayn Rand have thought FDR a president to emulate?  See  Ayn Rand on WW II  on this website for the answer. Mr. Tracinski continues, evading the fact that, though its application was scaled back, much of FDR’s fascist apparatus remains in place today long after WW II ended:

“When the war is over, the president’s extraordinary powers are revoked – and the people can then demand that government be limited once again to its ordinary powers.”

That old phrase “the people” makes this sound like a communist tract, but set that aside. Who says when the war is over? What legal right do people have to demand anything, since their rights have been violated already?

Of what legal value is a right that can be legally violated?

Mr. Tracinski next describes the danger of “a permanent [as opposed to temporary] change in the powers of government.” He evades the question: Why would such a change – that is, a violation of individual rights – ever be acceptable, even temporarily? Why, for instance, would it be acceptable for Congress to draft young men and send them to Iraq, even if the draft were limited – for the time-being – to the next five years?

Mr. Tracinski ends his essay:

“... a declaration of war would ensure that the extraordinary powers exercised by the chief executive will be granted only for the duration. A declaration of war is our best guarantee that we will be able to restrain government and reclaim our full legal rights when the war is over.”

From the fact that government expands during war he concludes (1) the expansion must violate individual rights, and (2) declaring a war is the “best guarantee” that the violating will be temporary.

Both conclusions are false. We address the second first. “Best guarantee” is an oxymoron. There are no gradations of “guarantee”: if something is not guaranteed, it has exceptions. And in this case there is no guarantee at all, indeed from history we would expect the opposite of temporary.

The Civil War and the two World Wars each resulted in a huge leap in the size and scope of the federal government. During the wars many steps towards statism, afterwards only a few steps back. Net result: A huge leap towards statism, permanently.

In today’s cultural climate and with our current corrupt government, Mr. Tracinski still wants us to believe that a violation of individual rights, once in place, can be guaranteed to be temporary. It probably won’t be temporary, and even if it were temporary it would still be wrong.

Before 9-11 the Bush administration had been itching to invade Iraq and to violate further the already much violated Bill of Rights. 9-11 furnished a pretext for doing what they wanted. Tracinski has it backwards. The violations of principle he so easily excuses are not the administration’s clumsy means of dealing with 9-11, it is the administration’s desired end.

Randolph Bourne once pithily described what the administration knows full well:  “War is the health of the state.”

About the time Mr. Tracinski was writing, John Ashcroft, then Attorney General, said:

“To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists.”
Spoken like a politico. In fact those lost liberties are as concrete as the bullets in a gun, even if they haven’t yet affected you personally. Mr. Tracinski is in a way more honest than Mr. Ashcroft, though his conclusion is the same: True, he admits, your loss of liberty is real, but, he says, don’t worry about it.

The Founders urged us to be “jealous” of government. ARI urges us not to worry.

The next Attorney General was one Alberto Gonzales. In his previous position as White House Counsel he had written that the “Constitution is an outdated document.” He also issued an infamous memo justifying U.S. torture. But don’t worry about it.

The philosophy of pragmatism was first expounded by William James and then more consistently by John Dewey. Pragmatism maintains that new knowledge needn’t integrate with past knowledge, and that action takes precedence over thought. What is true at the moment is what works at the moment, action itself creates a previously formless reality. This raft of nonsense excuses any thug, and judging from Mr. Tracinski’s essay and other like-minded essays at ARI, it is the philosophy of the so-called “Ayn Rand” Institute.

Though the folks at ARI may carp over details they support what the neocons are doing, and so we end this review with an account of a neocon telling us how the world works these days.  Ron Suskind describes  (in “Without a Doubt”  New York Times Magazine  October 2004)  his meeting with Karl Rove, senior aide to President Bush, in the summer of 2002, after Mr. Suskind had written an article in Esquire magazine critical of the administration (we leave off our external quote marks):

The aide said that guys like me were “in what we call the reality-based community,” which he defined as people who “believe that solutions emerge from your judicious study of discernible reality.” I nodded and murmured something about enlightenment principles and empiricism. He cut me off. “That’s not the way the world really works anymore,” he continued. “We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality – judiciously, as you will – we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors ... and you, all of you, will be left to just study what we do.”
These are the thugs ARI helped unleash upon the world.