Supreme Warlord of the Earth

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For a president beleaguered by public demands, seizing new powers can be an adaptive response. Small wonder, then, that the Bush administration promptly sought enhanced authority for domestic use of the military. Although few in the media noted the historical moment, the president received that authority. On October 17, 2006, the same day he signed the Military Commissions Act denying centuries-old habeas corpus rights to “enemy combatants,” the president also signed a defense authorization bill that contained gaping new exceptions to the Posse Comitatus Act of 1878, the federal law that restricts the president’s power to use the standing army to enforce order at home.

The new exceptions to the act gave the president the power to fight a militarized federal war on hurricanes, declaring himself supreme military commander in any state where he thought emergency conditions warranted it. In a move that underscored the benefits of divided government, Congress this year restored pre-Katrina checks on the president’s power to use standing armies at home. Yet Katrina’s aftermath showed that when the public demands that the president protect Americans from the hazards of cyclical bad weather, it creates the conditions for a large-scale executive power grab. And we cannot be sure that Congress will hold the line after future national disasters.

To understand is not to excuse: No president should have the powers President Bush has sought and seized during the past seven years. But after 9/11 and Katrina, what rationally self-interested chief executive would hesitate to centralize power in anticipation of crisis? That pressure would be hard to resist, even for a president devoted to the Constitution and respectful of the limited role the office was supposed to play.

Barack Obama has done more than any presidential candidate in memory to boost expectations for the office. Obama’s stated positions on civil liberties may be preferable to McCain’s, but if and when a car bomb goes off somewhere in America, would a President Obama be able to resist resorting to undeclared wars and the Bush theory of unrestrained executive power? As a Democrat without military experience, publicly perceived as weak on national security, he’d have much to prove.

As Jack Goldsmith put it in his 2007 book, “For generations the Terror Presidency will be characterized by an unremitting fear of devastating attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so. . . . If anything, the next Democratic president—having digested a few threat matrices, and acutely aware that he or she alone will be wholly responsible when thousands of Americans are killed in the next attack—will be even more anxious than the current president to thwart the threat.”

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