The Law Presidential Power and Foreign Affairs in the Bush Administration: The Use and Abuse of Alexander Hamilton

"Mine," Alexander Hamilton declared, "has been an odd destiny" (Knott 2002, 1-228; Rossiter 1964, 226). Even in death, it may be added. Hamilton's long career--the controversies that his views have inspired, and the wax and wane of his influence, stature, and reputation across a vista of two centuries--was brought center stage in the presidency of George W. Bush. Hamilton's writings, virtually alone among the framers, were invoked by the Bush administration as the cornerstone of its assertions of sweeping executive powers in the areas of war and peace and national security. Hamilton and the Bush Theory of Presidential Power in Foreign Affairs In the aftermath of the 9/11 outrage, the Bush administration launched the executive on a trajectory toward the realm of unchecked and unfettered power, the netherworld of American constitutionalism (Adler 2006, 2007). On the magic of Hamilton's name, and under the high-flying banner of the unitary executive, the commander in chief clause, and the assertion of inherent and plenary executive authority in foreign affairs, President Bush claimed unilateral presidential power to initiate preventive war, order acts of extraordinary rendition, authorize domestic surveillance of U.S. citizens, establish military tribunals, and suspend and terminate treaties, including the Geneva Conventions. The Bush administration, moreover, claimed the authority to "override" statutes that interfered with presidential policies and programs, and declared that the courts had no role to play in matters of war and peace and national security (Adler 2006, 2007; Fisher 2005a, 168-261; Fisher 2007a; Miller 2008, 99-228; Pfiffner 2008, 84-247; Pious 2007; Savage 2007, 10-331; Schwarz and Huq 2007, 65-208). The attribution to Hamilton of such unconfined power is no mean charge. If unsupported by the evidence, it represents a historical libel. With the possible exception of Richard M. Nixon, no American president has asserted such a Cromwellian view of executive power. And that may be unfair to Nixon. The extraordinary concentration of power in the hands of President Bush was pregnant with menace; it reduced the trumpet sound of the rule of law to tinkling crystal. The disdain of the Bush White House for constitutional government may be glimpsed in the observation of former U.S. attorney general Alberto Gonzales, who, in the midst of the revelations in the "torture memos" of cruel and inhumane treatment of prisoners at Abu Ghraib, declared that concerns about constitutional principles in the context of the "war on terrorism" were "quaint" (Jinks and Sloss 2004, 97). The Bush administration's conscription of Hamilton to justify its soaring claims of executive power invites fresh consideration of his views. Does Hamilton bear responsibility for the absolutist pretensions of the Bush presidency? Will his writings support the weight assigned them by Bush officials? Answers begin with a threshold issue: Which of Hamilton's writings should be judged? Who is the subject of inquiry: Hamilton as delegate to the Philadelphia Convention, as "Publius" in The Federalist Papers, or as "Pacificus" during the 1793 dispute over the Neutrality Proclamation? While the issue of whether Pacificus misinterpreted the Constitution for his own ends has absorbed the wit and energies of scholars, there remains the need to examine the uses to which Hamilton and his views were employed by President Bush and his advisors. The Bush administration's case for a plenary presidential power in matters of war and foreign affairs was advanced in a series of memos produced by advisors in the Office of Legal Counsel (OLC), housed in the U.S. Department of Justice. Its use of Hamilton's Federalist Papers reflected an exercise in distortion. An early OLC memo--"The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them," effectively the cornerstone of Bush's legal theory--was written on September 25, 2001, by then (now law professor at University of California, Berkeley) Deputy Assistant Attorney General John Yoo, who became the most prominent architect of the administration's position on executive power in foreign relations (Greenberg and Dratel 2005, 3-25). …