大統領像と戦争権限

抄録

The campaign messages of the presidential elections of 2008, especially those during the Democratic primaries, remind us that American public expect their president to secure their nation’s safety in the first place. A presidential image shaped with a strong emphasis on the security concerns opens a leeway for any president to exercise, and sometimes over-exercise, the presidential war powers, in response to such public concerns.

We often call the war in Iraq as “Bush’s War,” meaning that mistakes were made by the Bush administration, or even by President George W. Bush personally. If we put this war in a historical perspective, however, we notice that the political environment leading to the Iraq War presents similarities to those of the previous “wrong” wars, and the seriousness of the mistakes should not be minimized by such personalization.

More precisely, the congressional control over the presidential war powers, which started with the ambiguous language of the Constitution, has never achieved its expected function. Congress has rather dodged the political responsibility of making the grave decision to prevent the presidential war making. Instead of controlling the presidential war powers, Congress often recognized the President’s prerogatives in general, then tried to control them specifically. Such procedure ends up with the further reduction of congressional relative power against the President, which was named as “legiscide” by Theodore Lowi.

One of the cases of “legiscide” was the Foreign Intelligence Surveillance Act of 1978 (FISA). Enacted against the President Nixon’s abuse of foreign intelligence apparatus for domestic political purpose, FISA was to secure the constitutional right of American citizens to civil liberty. The provision of FISA, however, had approved exceptional treatment of foreign intelligence to the democratic rule, thus allowed the potential abuse of power by the executive. As President Bush launched the War on Terror, the potential became real and warrant-less wiretapping of American citizens had been carried out secretly for nearly four years before it was leaked in a newspaper.

An equally serious development, however, was the fact that the congressional leaders were notified of this secret program, but were not able to openly discuss or holt it in the face of the claim of constitutionally and legislatively-supported presidential war prerogatives. Legitimacy of the successive Presidents’ claims that their war powers outbalance the congressional powers, or even the constitutional rights of citizens, have been challenged over time. Yet, a sustaining answer to this question is still in the making.

Congress has been asked to play a key role in this balancing process, but as we have seen above, the expectation of the constituency toward a strong President, especially during the wartime, lies behind how strongly Congress can take their own position against the President. The Obama administration, with expanded presidential prerogatives in its hands, is no exception to the rule, and we have to be cautioned that too much expectation for “change” may deprive us of the necessary scrutiny.