Constitutional Law Expert Dr. Louis Fisher Speaks on
"Preserving Democracy in Time of War"
In times of emergency and stress, civil liberties are set aside and concern for the ideals of freedom and human rights that embody the United States suffers a decline, according to constitutional law expert Dr. Louis Fisher.
Speaking at The Fletcher School on March 2, Fisher, a Specialist in Constitutional Law at the Library of Congress, said this is not the first time that the phenomenon of "declining democracy" has taken place in the U.S., which continues to portray itself to be the bastion of democratic principles and the protection of individual rights. He said that long before the U.S. government implemented various security reforms following the 9/11 terrorist incident, significant events in American history have portrayed its tendency to override civil liberties in periods of crisis.
To illustrate, Fisher cited the Supreme Court ruling in the U.S. v. Reynolds case in 1953. In this case, which was initiated by the families of the victims of an explosion of a B-29 bomber in Georgia in 1948, the Supreme Court denied access to information relating to the federal government, thus upholding the authority of the executive branch to assert an all-encompassing "state secret privilege" as basis for withholding information from the public.
Fisher lamented that the case continues to be cited by the executive branch as authority for the claim on pervasive presidential powers, even as it was later established that the information did not actually pertain to sensitive state secrets but rather, negligence by Air Force personnel. The Bush administration, in fact, continues to rely on the Reynolds decision to justify its claims to executive supremacy in the exercise of war powers.
"However, if we go back to the 'fundamentals'—the intent of the framers of the Constitution, jurisprudence and legal opinions--they will establish the contrary position that the President does not, in fact, have superior authority over Congress in exercising war powers," he said.
Fisher argued that if the framers of the Constitution had wanted the President to exercise war powers, they would have adopted the British model, which places the war powers and the authority over foreign affairs solely on the executive, and out of the realm of the parliament.
"But our Constitution does not vest those powers in the President. They are either assigned exclusively to Congress, or shared between the Senate and the President. The framers’ repudiation of monarchical powers is strong and complete," Fisher said. He added that the framers derived from history that executives and monarchs largely pursued wars not for the purpose of protecting the national interest, but for fame, glory, prestige, revenge, ambition or other personal motives.
"These personal motives often lead the executive to engage in wars which are not necessarily for the interests of the people," he said.
Fisher also commented on the assertion by the executive branch of the President having commander-in-chief powers, which supposedly gives him authority to initiate military operations against other states and to continue until Congress cuts off funding by a two-thirds majority vote.
Fisher said that this assertion is not supported by the Constitutional text, the framers’ intent as evinced from their writings, or by legislative history. On the contrary, he said that the clause implies civilian supremacy and is intended to establish unity of command by the executive over the military which does not deprive Congress of its war powers.
"All of the major wars that the U.S. has been involved in were authorized and declared by Congress, in line with the principles of democratic government," he said.
According to Fisher, these ‘fundamentals’ represent his own position on the issue of executive power, and that his academic writing reflect his strong advocacy in favor of democracy, respect for civil liberties and greater public participation in decision-making.
Fisher noted that some members of Congress who are running in the next elections who voted in favor of going to war in Iraq in 2002 are now claiming that their decision was premised on their full faith and confidence on President Bush’s claims that Iraq had weapons of mass destruction.
"As a member of Congress you should not decide on the basis of the President’s assertions, since you are there as a representative of your state," he said.
Fisher closed by citing the irony in the reason behind the U.S. government’s decision to invade Iraq: "The U.S. is fighting the war in Iraq because we want to export democracy in that country. We don’t even respect democracy here, and we want to export it?"