Posted: August 8, 2012
resident Barack Obama has many supporters, but none more fervent than academics. Professors' donations to political campaigns run about three or four to one in favor of Democrats. According to a recent study, the ratio of registered Democrats to Republicans at the University of California, Berkeley (where I teach), is 17 to 1 in the humanities and 21 to 1 in the social sciences. Apparently, the figure is only 4 to 1 in the professional schools, which leads me to wonder: where are they all hiding?
According to Naval War College professor Stephen F. Knott, this radical and unhealthy imbalance does not just register in voting rolls, but has infected the substance of presidential studies. In Rush to Judgment: George W. Bush, the War on Terror, and His Critics, Knott shows that the Bush Administration could claim constitutional support for its controversial terrorism policies from Franklin Roosevelt to Abraham Lincoln back to Alexander Hamilton. But he goes further. He also calls to account the many historians, both professional and popular, whose criticism of the 43rd president "bordered on the unprofessional and made a mockery of the principle of academic objectivity."
These are not just obscure academic historians who are screaming as loudly as possible in order to get noticed. Rather, Knott reproduces embarrassingly biased statements from some of the leading lights of the profession, such as Sean Wilentz (Princeton), Eric Foner (Columbia), Robert Dallek (Boston University), Joyce Appleby (UCLA), Joseph Ellis (Mount Holyoke), Douglas Brinkley (Rice), H.W. Brands (Texas), Garry Wills (Northwestern), Jack Rakove (Stanford), and, of course, the late Arthur Schlesinger, Jr. Knott, in other words, names names. He lets their own words display the "visceral animus some American historians felt toward the Bush-Cheney ‘regime.'"
For example, Schlesinger claimed the George W. Bush presidency was "the most dramatic, sustained and radical challenge to the rule of law in American history." Foner argued that Bush had "taken his disdain for law even further than [Nixon]" and that Bush "sought to strip people accused of crimes of rights that date as far back as the Magna Carta." Similarly, Harvard Law School dean and future Supreme Court Justice Elena Kagan, referring to Guantanamo Bay policies, likened the Bush Administration to "dictatorships," and described the administration as "fundamentally lawless." Rakove predicted that if Bush's practice of using signing statements continued, something Rakove saw as a "constitutional crisis," then "our freedoms will become a thing of the past, impossible to recover." Ellis, with all the hindsight that could be mustered in 2009, asserted "that George Bush might very well be the worst president in American history...Bush has done nothing on the positive side, virtually nothing." Likewise Brinkley confidently alleged that "it's safe to bet, that Bush will be forever handcuffed to the bottom rungs of the presidential ladder."
But strip away the partisanship and exaggerated rhetoric, and their mistake is their willing blindness to the deep well of executive authority that underlay the extraordinary measures taken in response to the September 11, 2001 terrorist attacks. The author of earlier works on Hamilton and on covert action, Knott makes plain what CRB readers know all too well: presidential power, in an emergency, engages the long debate over the place of the prerogative in the American Constitution. Presidents have exercised something like the prerogative—the ability to act in the silence of, or even contrary to, written law—throughout American history. Thomas Jefferson purchased Louisiana from Napoleon even while believing the Constitution required an amendment to legalize the acquisition of territory with the potential to become new states. After the firing on Fort Sumter, Lincoln raised an army and navy, withdrew money from the Treasury, and suspended habeas corpus without Congress's authorization. FDR extended aid to Great Britain in the face of the Neutrality Acts before U.S. entry into World War II.
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For those who have studied the presidency without ideological blinders, the question is not whether the prerogative exists. Harvey Mansfield has traced the prerogative's origins beyond John Locke back to Machiavelli, who identified the fundamental tension between, on the one hand, the use of legislation to provide clear, antecedent rules and, on the other, the need to address unforeseen emergencies and crises. Presidents have responded to emergencies in the past and will continue to respond to them in the future with measures necessary to protect the nation's security. Some arm of the American government must always have the capacity to immediately react to crisis—a capacity beyond the abilities of a large, multi-member legislature. Only a single executive, as Hamilton declared in The Federalist, could act with the "decision, activity, secrecy, and dispatch" that was "essential to the protection of the community against foreign attacks" and "the steady administration of the laws."
The real question is whether the Constitution provides for a prerogative or whether presidents have to find it elsewhere. In my own contribution to this debate, Crisis and Command: A History of Executive Power from George Washington to the Present (2010), I argued that Thomas Jefferson believed that the prerogative had no constitutional basis, and instead depended upon ex post popular approval. Building on arguments laid out by Hamilton and Andrew Jackson, Lincoln domesticated the prerogative by locating it within Article II's opening sentence, which vested in the president an undefined "executive power."
Knott understands the difference as well, though he takes no strong stand on the prerogative's origins. Rather, he shows that the prerogative is no mere innovation of modern presidents but enjoys an ancient paternity. "While there has been and will continue to be principled arguments opposing presidential prerogative power, including the fact that the power is subject to potential abuse, the fact remains that presidential prerogative is as American as Thomas Jefferson and Abraham Lincoln." This bears directly on historians' view of the Bush Administration, writes Knott. "Suffice it to say that George W. Bush was in good company."
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I can say that this perspective sustained the government in the weeks and months after the September 11 terrorist attacks. After that terrible day, I usually taped a Lincoln speech or letter to the inside of my office door as my Justice Department colleagues and I worked to prevent another al-Qaeda attack. In my mind, Lincoln had been the last American president to grapple deeply with the questions before us: How do we define an enemy that can include American citizens? How do we find an enemy that can wage war on our territory, behind our lines? How do we fight that enemy when the conventional laws of war could not anticipate the scope, length, and means of the conflict?
These difficulties were only compounded by the unique nature of an enemy who disregards every norm that has constrained the waging of war throughout history. This enemy has no territory, cities, or population. It neither wears uniforms nor operates in conventional units. Instead, it relies on infiltrating covert agents to launch surprise attacks on civilian targets.
As we developed our response under the pressures of time, imperfect information, and limited resources, I remained conscious that Lincoln had confronted equally harrowing dilemmas (with perhaps greater consequences at stake). Throughout the Civil War, he had relied on the theory that the Constitution's grant of the executive power, together with the Commander-in-Chief Clause and the president's explicit duty to enforce the laws, gave him the authority to take necessary action to protect the nation's security—even if his decisions might run counter to the views of Congress or the courts. Hence, the Justice Department approved the constitutionality of President Bush's decision to use military force to respond to the 9/11 attacks, to detain enemy combatants at Guantanamo Bay, to try them with military rather than civilian courts, to interrogate the very top al-Qaeda leaders with tough interrogation methods (I disagree with Knott's use of "torture" to describe them), and to expand the interception of terrorist communications to emails and phone calls entering U.S. territory. Some of these measures pertained to areas where Congress had not acted, and others were arguably inconsistent with Acts of Congress if interpreted a certain way. We tried to avoid separation of powers conflicts, but we also confronted federal laws that could not anticipate a dangerous terrorist group like al-Qaeda. Lincoln's view of the prerogative and of the president's constitutional authority to respond to emergencies supported the executive branch's ability to respond quickly and effectively in the first months after the 9/11 attacks.
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The results, I think, speak for themselves: al-Qaeda never achieved the success of a follow—on attack in the United States. This non-event cannot be ascribed to our becoming luckier or their becoming more peaceable. The expanded network of intelligence gathering and analysis, combined with the fast-reaction abilities of U.S. special forces and drones, allowed the nation to pre-empt further terrorist strikes. The deadly combination of intelligence and real-time military strikes has led to the killing or capture of much of al-Qaeda's leadership. While Obama's doubling down on drone strikes prevents the exploitation of captured al-Qaeda leaders for valuable intelligence, it still represents the sole bright spot in the current president's sorry campaign of retreat from the world.
Knott finds frustrating not only that academics give Bush little credit for protecting the homeland, but also that they remain openly and notoriously inconsistent in their criticism. Bush may have ordered the waterboarding of three al-Qaeda leaders, for which some presidential scholars believed the heavens would fall. Obama, by contrast, has used drones to kill hundreds of al-Qaeda leaders and sometimes innocent family members and bystanders—a greater deprivation of the human rights of many more people. Bush's academic critics raised nary a peep in protest. Scholars claimed that Guantanamo Bay amounted to some kind of legal black hole, rather than a prisoner-of-war camp over which military, not civilian, rules normally apply. Several of these critics have served in an administration that has kept Guantanamo open and continued a policy of detention without trial for enemy combatants. Even the dreaded signing statements, by which Bush allegedly circumvented the Constitution, have been resurrected by his successor. The faculty lounges, somehow, are not abuzz this time.
It should be expected that extraordinary executive authority will provoke outrage—its very nature upsets settled expectations and understandings. Vigorous presidents from George Washington to Jackson to Lincoln regularly encountered cries of tyranny for their exercise of the office's independent authority. The academy's role may even render such criticism part of a democracy's healthy feedback loop.
But Knott's disappointment in his colleagues verges on anger when they insist on having it both ways: behaving like partisan hacks, while speaking with the authority of disinterested scholars. Not only have they undermined the nation's ability to evaluate its policies and leaders and, ultimately, to better understand itself; these ward heelers with endowed chairs have also ruined their profession's claim to rationality and objectivity. The war begun on September 11, 2001, has claimed many casualties. The American historical profession is among the most grievous, only in the sense that it was the least necessary.