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Wittes responds

By Jack M. Balkin

Ben Wittes was kind enough to send me the following comment after reading my posting yesterday, which he has authorized me to post:

Dear Sandy:

I appreciated your thoughtful blog post on my comment to the Times other day. A word of pushback, if I may:

While I grant you that my citation of the oath was not a direct quotation, I think you read much too much into the wording of an off-hand paraphrase to a reporter. The implication of your post is that I believe that non-criminal detention offend constitutional values but that I think it is okay anyway because the President has sworn an oath to protect the country (as opposed to the Constitution) and is, therefore, entitled to violate the Constitution by way of fulfilling his oath. I don't believe any of these things.

For starters, I believe that quite apart from questions of presidential power, there is ample space under extant constitutional law for preventive detention in the terrorism context--just as there are preventive detention authorities under a variety of other statutes. This is a complicated question that I treat at some length in my book and will not rehash here. Suffice it to say that American law tolerates preventive detention in a variety of contexts if the danger the individual poses is great enough and the proceeses for assessing that danger are adequate.

Second, the use of "protect the country" as a short-hand for the president's oath is only at odds with an oath whose literal language promises to protect the Constitution if one believes that the steps necessary to protect the country actually affront the Constitution. Otherwise, there really isn't a tension. The "country," after all, is a political entity constituted by the Constitution. Protecting the Constitution requires protecting the country more broadly, and protecting the country is merely a defense of physical space if one does not also defend the values that constituted it.

Third, as the Constitution also constitutes the Office of the President, I do not believe the President has any power to act beyond the powers the Constitution grants him. Presidents, of course, have occasionally done so in good-faith efforts to defend the nation (and the Constitution). But I do not argue for the legality of such actions, however necessary under the circumstances that gave rise to them they might have been.

Full post as published by Balkinization on May 26, 2009 (boomark / email).