The Person with the Bomb Rules
[Bomb Power: The Modern Presidency and the National Security State • By Garry Wills • Penguin Press, 2010 • 278 pages]
I did not anticipate writing a favorable review of a book by Garry Wills. He veered fairly early in his career from a quirky form of conservatism to a run-of-the mill leftism. In his A Necessary Evil, he assailed the view that government is inherently bad: society, he hastened to assure us, could not function without the State. Only fanatics would fail to realize that the capitalist market depends for its existence on this vital institution. And the American State must not be hobbled by antiquated notions of federalism. After all, he averred, the federal government created the states, not the other way round.1
Wills's previous espousal of topsy-turvy history did not inspire confidence in his new venture; but he has in this instance written an excellent book.
In a few details, Wills still manifests his antimarket prejudices. Thus he writes,
The [Second World War] revealed what might be called "the dirty little secret" of American capitalism. The myth of capitalism is that the free market is the most efficient economic system. But it is not. Governmentally sponsored and regulated production is far more efficient. It was the war, not the New Deal, that finally reversed the Great Depression. (p. 9)
But in Bomb Power, Wills comes not to celebrate the American State, but to challenge it, at least in one crucial respect. He contends that the president has usurped power properly belonging to Congress, in large part because of the executive's sole discretion over the use of atomic weapons. How can one speak of Congress as having war-making authority, if the president controls the nuclear "football"?
The power of nuclear control does not stand by itself. Rather, it forms the core of a secret "national-security state" largely immune from congressional control. Despite the clear words of the Constitution, the CIA and other parts of the national-security state keep their activities secret from Congress. More generally, presidents use executive orders to enact legislation; and, since Ronald Reagan, matters have gotten worse. The presidents claim by "signing statements" to set aside legislation they do not like.
Wills calls attention to a striking fact that illustrates how far we have strayed from the traditional understanding of the Constitution. It is quite common nowadays to call the president our commander in chief, but, contrary to the claims of Dick Cheney and other partisans of executive dictatorship, this title gives him no power over civilians. Rather, it gives the president control over the military, though it confers no military rank on him.
The President has no power, as Commander in Chief, over any civilian. Yet so common is the assumption that he does that when I [Wills] wrote an op-ed piece in the New York Times saying that the President is not my Commander in Chief, I received abusive mail saying I was clearly not a citizen of the United States and I should leave the country. Loyalty to the Commander in Chief is now equated with loyalty to the country, though it is clearly a form of disloyalty to the Constitution. (pp. 47–48)
Why do people think of the president as everyone's commander in chief? Wills traces the misapprehension to the development of the atomic bomb during World War II. The extreme secrecy of the project led to what was in effect an independent government, immune from the oversight of Congress. The director of the project, General Leslie Groves, who formed an unexpected partnership with the left-wing physicist J. Robert Oppenheimer, played a crucial role in this process:
One man had to be given extraordinary powers, outside the normal systems, to bring off the creation and delivery of the bombs.… Groves had a free hand in the actual creation and practical delivery of them … he was so much outside the rules that the official army report on the air war cannot trace a clear line of responsibility for the nuclear bombing of the Japanese cities. Groves, the key figure, was outside the military chain of command. (p. 45)
The end of the war of course did not terminate this secret system. Quite the contrary, the onset of the Cold War intensified the creation of agencies independent of Congress and public scrutiny.
The National Security State was formed in and by the Cold War. It was modeled on entities from World War II.… It was continued and intensified during the war on terror, with even greater secrecy, executive unaccountability, and projects like torture and extraordinary rendition. The whole structure is outside the Constitution. (p. 98)
As a result of the president's control of nuclear weapons and the secret agencies established in the era of the bomb, Congress has lost its constitutional authority to declare war. In one of the best passages in the book, Wills demolishes John Yoo's efforts to obfuscate the plain meaning of the Constitution.
John Yoo, the lawyer Cheney was relying on to uphold his constitutional oddities, had to deal with Congress's constitutional rights to declare war.… He did this with a flimsy philological fantasy. He said that in the eighteenth century, "declare" did not mean "initiate" or "authorize" … [according to Yoo] all that Congress can do with regard to war [is to] publish the fact that it is occurring, once the President has initiated it. It takes a fierce determination to ignore the obvious source and sense of the phrase "declare war" to play these word games with it. (pp. 194–95)
In his defense of Congress's constitutional prerogative, Wills makes a most valuable point. The War Powers Resolution of 1973, which requires the president to submit his military initiatives to congressional approval, should not be deemed a check to presidential usurpation. Far from it: the resolution in fact cedes to the president powers the Constitution does not authorize him to have.
The WPR institutionalized a joint authority that is denied in the Constitution.… "War power" is not a term that occurs in the Constitution, much less "war powers," as something to be divided between the President and Congress. (p. 195)
But this is not the worst of it. Since the time of Ronald Reagan, the president has claimed the right to set aside duly enacted laws by "signing statements." The Constitution gives the president the power to veto laws; but he is not granted the power to sign a law, accompanied by a statement of his intention to act as he pleases. "Looked at from any angle, the signing statements clearly go against the Constitution's structure, in which the legislature makes law and the President executes it." (p. 221)
Wills has built a formidable case that recent presidents have arrogated to themselves vast powers not contemplated by the Constitution. He is less successful in showing that this aggrandizement has come about principally because of nuclear weapons and their attendant secrecy. No doubt the bomb has enhanced the power of the president; but Will's inordinate stress on this factor leads him to underestimate the continuity between presidents who held office before the atomic era and those after it.
Thus, he downplays Lincoln's manifestly illegal conduct during the Civil War. True enough, Lincoln suspended the writ of habeas corpus when the Constitution gave him no power to do so; but he acted, Wills tells us, with great circumspection:
Recent Presidents have defended their own runaway practice of issuing executive orders by using Lincoln as a precedent. His situation was unique — our only great national insurrection — and he was careful in limiting his actions to partial martial law. (p. 132)
Again, Wills mentions that Franklin Roosevelt interned Japanese American citizens by executive order; but this too he brushes off as minor by comparison with what has happened since 1945. But the post-nuclear-era presidents declare, exactly as Lincoln and Roosevelt did, that in a time of emergency they must act to save the nation.
Further, although Roosevelt, in contrast to his successor Truman, did seek a declaration of war from Congress, he acted in the period preceding Pearl Harbor in a way designed to provoke a Japanese attack.2 Given the president's provocative diplomacy, the declaration of war was a mere formality. And such conduct did not begin with Roosevelt; James Polk showed long before him that a president determined on war is not without resources to secure his goal. Once more, the onset of the atomic bomb marked no sharp break in the history of presidential aggrandizement of power.
One might raise another objection to Wills; but here I think that he has the resources to overcome it. Suppose that the president were restored to his proper constitutional role and that his usurpations of power came to an end. Congress would have the exclusive power to declare war and its laws would not be set aside by signing statements. We would then be in the hands of Congress; but would we be better off? Can there not be congressional dictatorship as well as the presidential kind?
The constitutional arrangement is far from perfect. But, at least if its provisions are obeyed, there is a barrier imposed on arbitrary and secret rule by one person. And dictatorship by a congressional bloc, one may hope, is hard to establish. To expect more than this from a governmental charter of power would be foolish.