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How Much Power Should the President Have?

Faculty talk about where to draw the line on presidential wartime authority

The U.S. Constitution is clear: During war, the president has expanded powers to protect the nation. But nearly six years after the 9/11 attacks, several Duke faculty members are asking where the limits on that power should now be drawn.

"President Bush's argument is the president is commander-in-chief, and he is responsible to the American people to safeguard them," said law professor Scott Silliman. "In fulfillment of these responsibilities, he believes neither the courts nor Congress can thwart him.

"That's an argument many Americans supported after 9/11. But since then the argument permeates nearly every issue that has risen in the war: the long-term detention of prisoners at GuantanamoBay, the so-called "black sites" [secret detention sites] in Europe and expanded surveillance inside the United States."

Silliman and three other Duke faculty members spoke this past Thursday at a talk on "Iraq, Torture and Domestic Spying: What's the Right Strategy in the War on Terror?" sponsored by the new Triangle Center on Terrorism and Homeland Security, a joint venture of Duke, UNC-Chapel Hill and RTI International.

The speakers approached the topic from different academic disciplines but joined in urging more national debate about the appropriate level of presidential power during a struggle against terrorism.

Despite a clear constitutional precedent for expanded presidential power during wartime, Silliman said a war on terror presents unusual circumstances -- such as the lack of clear battlefields or likelihood of a decisive ending -- that have legal scholars raising new questions.

"The Bush philosophy says that the constitution's wartime powers give him unlimited power to conduct a war on terror anywhere in the world," Silliman said. "The question is when you get far away from any battlefield, can you use that argument? There are people in Guantanamo who were picked up in Bosnia, Pakistan and elsewhere far away from Afghanistan. The Bush argument is these are unlawful combatants and the president has the power to detain them.

"If carried to a logical extreme, the president could authorize use of force against anyone in the world, including here in Durham, N.C. What we need right now, more than anything else, is for the courts to step up and tell us what type of war are we in and what authority the president has."

However, the U.S. Supreme Court has been reluctant to date in taking on that responsibility, said Christopher Schroeder, Charles S. Murphy Professor of Law. The same holds for Congress, he added. Two important court cases could come before the Supreme Court this year, but so far the Court has been quiet about whether it will hear the cases.

Schroeder worked in the Office of Legal Counsel at the Department of Justice under President Clinton. Under President Bush, that office has provided much of the legal justification for the president's wartime authority. Schroeder said the president properly looked to create a new paradigm of "harm prevention" rather than of punishing criminals only after they've committed acts of terror. "This shift makes sense. We don't want to wait until terror crimes are committed. I certainly didn't want another 9/11," he said.

But Schroeder also said the president should now be more open with information about his actions so as to help Americans understand which policies really are effective in fighting terrorism.

"The administration is resisting providing anything approaching a general accounting of their behavior," Schroeder said. "We lack the most basic information to make any kind of evaluation of policies. Government requires greater transparency than this. If we're in for a long war, we need to decide whether we continue this principle of maximum deference to a maximum president, or we need to negotiate a more accountable system of checks and balances."

The question of presidential authority extends to the issue of torture and cruel and inhumane punishment of prisoners. Silliman said hand the Bush administration denies torture is taking place while resisting congressional efforts to prohibit torture during interrogation.

"The administration believes that as commander-in-chief in war, his constitutional authority trumps everything," Silliman said.

Both Silliman and Schroeder said expanded presidential power and greater accountability can coexist. As an example, Schroeder pointed to the use of the Foreign Intelligence Surveillance Court, which allows the justice department and intelligence agencies to seek domestic wiretaps. He said the system has worked well in promoting appropriate surveillance as well as oversight.

Bruce Jentleson, professor of public policy studies, examined some of the political reasons why Democratic Party leaders have failed to ignite what he considers a much-needed debate on presidential power.

"It used to be that Democrats were most afraid of being labeled 'soft on communism,'" Jentleson said. "Now, what they fear the most is being labeled 'soft on terrorism.' I believe the public is pragmatic and is open to discussion, if their leaders will talk to them."

Schroeder expressed hope the argument will be pressed by moderate Republicans, such as Senators Lindsey Graham and John McCain, who have the power to move legislation and are concerned about questions of presidential limits and accountability.

The session was moderated by David Schanzer, director of the TriangleCenter on Terrorism and Homeland Security. It is one in a series promoting public consideration of national security issues.