On Bush’s and Lincoln’s laws of war, and the left’s complete lack of perspective

Posted by: ST on February 16, 2009 at 8:29 pm

Some bloggers at the Volokh Conspiracy legal blog are engaging in a back and forth with Slate magazine over comparisons between Lincoln’s laws of war and President Bush’s. For history buffs, it makes for some interesting reading.

For me, it brought to mind the feeling that washed over me all over again this past weekend – after watching a PBS special on Abe Lincoln’s Civil War legacy – about the left’s complete lack of perspective as it relates to what wartime presidents in the past have done in the name of protecting this nation. True students of history understand that what Bush did during his administration (Patriot Act, Gitmo, the authorization of aggressive interrogation techniques, FISA, etc) in an effort to protect us from Islamofascism was mere child’s play when compared to the likes of Lincoln and FDR, two presidents who are viewed today as among the “greatest of all time.” How many times did we read over the course of the last 8 years from the left about how observing the Constitution had worked “just fine” over the course of our nation’s history until the Bush administration came along to “strip away all our rights,” completely ignoring history in their quest to paint Bush as the American version of Adolf Hitler?

On this President’s Day, let’s review some of the measures Lincoln took in order to preserve our union:

In the 80 days that elapsed between Abraham Lincoln’s April 1861 call for troops–the beginning of the Civil War–and the official convening of Congress in special session on July 4, 1861, Lincoln performed a whole series of important acts by sheer assumption of presidential power. Lincoln, without congressional approval, called forth the militia to “suppress said combinations,” which he ordered “to disperse and retire peacefully” to their homes. He increased the size of the Army and Navy, expended funds for the purchase of weapons, instituted a blockade–an act of war–and suspended the precious writ of habeas corpus, all without congressional approval.

And let’s not forget the Emancipation Proclamation:

Nothing in the Constitution authorized the Congress or the President to confiscate property without compensation. The Emancipation Proclamation declared slaves in the states still in rebellion to be free. By the time of the final Emancipation Proclamation on January 1, 1863, Lincoln had concluded his act to be a war measure taken by the Commander in Chief to weaken the enemy:

Now, therefore, I, Abraham Lincoln, President of the United States by virtue of the power in me vested as Commander-in-Chief of the Army and Navy of the United States, in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do…Order and declare that all persons held as slaves within said designated States and parts of States are, and henceforward shall be free.

The Proclamation may have had all “the moral grandeur of a bill of lading,” as historian Richard Hofstader later charged, but everyone could understand the basic legal argument for the validity of Lincoln’s action. To a critic, James Conkling, the President wrote:

You dislike the Emancipation Proclamation, and perhaps would have it retracted. You say it is unconstitutional. I think differently. I think the Constitution invests its Commander-in-Chief with the law of war. The most that can be said–if so much–is that slaves are property. Is there–has there ever been–any question that by the law of war, property, both of friends and enemies, may be taken when needed? And is it not needed whenever taking it helps us, or hurts the enemy?

Isn’t it mildly ironic that the president Obama admires the most is the one that made Bush’s wartime conduct look like Mary Poppins out on a picnic on a warm spring day? The same Bush that Obama and his supporters decried as straying “decidedly away” from the rule of law that made us different from everyone else? It’d be a major miracle if the MSM picked up on this little inconsistency and ran with it.

Now, let’s briefly look at FDR’s wartime actions stateside:

Japanese American internment refers to the forcible relocation and internment of approximately 110,000 Japanese nationals and Japanese Americans to housing facilities called “War Relocation Camps”, in the wake of Imperial Japan’s attack on Pearl Harbor.[1][2] The internment of Japanese Americans was applied unequally throughout the United States. Japanese Americans residing on the West Coast of the United States were all interned, whereas in Hawaii, where over 150,000 Japanese Americans composed nearly a third of that territory’s population, an additional 1,200[3] to 1,800 Japanese Americans were interned.[4] Of those interned, 62 percent were United States citizens.[5][6]

President Franklin Roosevelt authorized the internment with Executive Order 9066, which allowed local military commanders to designate “military areas” as “exclusion zones”, from which “any or all persons may be excluded.” This power was used to declare that all people of Japanese ancestry were excluded from the entire Pacific coast, including all of California and most of Oregon and Washington, except for those in internment camps.[7] In 1944, the Supreme Court upheld the constitutionality of the exclusion orders,[8] while noting that the provisions that singled out people of Japanese ancestry were a separate issue outside the scope of the proceedings.[9]


Executive Order 9066, signed by Franklin D. Roosevelt on February 19, 1942, allowed authorized military commanders to designate “military areas” at their discretion, “from which any or all persons may be excluded.” These “exclusion zones”, unlike the “alien enemy” roundups, were applicable to anyone that an authorized military commander might choose, whether citizen or non-citizen. Eventually such zones would include parts of both the East and West Coasts totaling about 1/3 of the country by area. Unlike the subsequent detainment and internment programs that would come to be applied to large numbers of Japanese Americans, detentions and restrictions directly under this Individual Exclusion Program were placed primarily on individuals of German or Italian ancestry, including American citizens.[20]

* March 2, 1942: General John L. DeWitt issued Public Proclamation No. 1, informing all those of Japanese ancestry that they would, at some later point, be subject to exclusion orders from “Military Area No. 1” (essentially, the entire Pacific coast to about 100 miles (160.9 km) inland), and requiring anyone who had “enemy” ancestry to file a Change of Residence Notice if they planned to move.[7] A second exclusion zone was designated several months later, which included the areas chosen by most of the Japanese Americans who had managed to leave the first zone.
* March 11, 1942: Executive Order 9095 created the Office of the Alien Property Custodian, and gave it discretionary, plenary authority over all alien property interests. Many assets were frozen, creating immediate financial difficulty for the affected aliens, preventing most from moving out of the exclusion zones.[7]

* March 24, 1942: Public Proclamation No. 3 declares an 8:00 p.m. to 6:00 a.m. curfew for “all enemy aliens and all persons of Japanese ancestry” within the military areas.[21]
* March 24, 1942: General DeWitt began to issue Civilian Exclusion Orders for specific areas within “Military Area No. 1.”[21]
* March 27, 1942: General DeWitt’s Proclamation No. 4 prohibited all those of Japanese ancestry from leaving “Military Area No. 1” for “any purpose until and to the extent that a future proclamation or order of this headquarters shall so permit or direct.”[7]
* May 3, 1942: General DeWitt issued Civilian Exclusion Order No. 346, ordering all people of Japanese ancestry, whether citizens or non-citizens, to report to assembly centers, where they would live until being moved to permanent “Relocation Centers.”[7]

These edicts included persons of part-Japanese ancestry as well. Chinese-Japanese Americans (i.e., those who had Chinese ancestry as well), Korean-Americans[citation needed] considered to have Japanese nationality (since Korea was occupied by Japan during WWII), Japanese-Hawaiians residing in the mainland, those with Japanese-Cherokee ancestry[22] and Japanese Latin Americans (or “Japanese Latinos”) from the West Coast of the United States during World War II were subject to restrictions under these programs. Anyone who was at least one-eighth Japanese, even if they had mostly Caucasian ancestry, was eligible.

The wartime actions both Lincoln and FDR took during their respective presidencies has been the subject of much debate ever since the actions were taken, but put into a historical perspective, Lincoln and FDR are viewed upon favorably in large measure in spite of those controversial wartime decisions. Yet President Bush took the actions he did – which clearly didn’t even touch the boundaries of where Lincoln and FDR went, and we were all of a sudden supposed to believe that “all hope was/is lost” for our country in terms of the executive branch’s legal boundaries, were supposed to believe that Bush was “burning” the Constitution?

I’ve never had a problem with discussions and debates about Bush war policy (both foreign and domestic) in the context of what it meant for future presidents in terms of how much power they have at their disposal to wage war against the enemy. It was the treating of President Bush as though he wasn’t the guy who had to wake up every day after 9-11 knowing that 3K people were murdered in one morning on his watch, and instead viewing him as a snake who was just biding his time until he was elected president so he could deliberately “curtail” the rights of the average American while at the same time “expand” presidential rights once the opportunity presented itself.

Our (relatively) young history has shown us that presidents will sometimes take extraordinary measures in order to protect this country from foreign enemies … or from dividing itself (as was the case with Lincoln) and, as it should, heated debates will always arise from those decisions. But any time in the future that a controversial wartime action is taken by a president, whether it be Obama or another president in the future, an action that is designed to make Americans safer while making life tougher for her enemies, let’s debate the merits of the action, yes, but think twice before viewing it as nothing more than a blatant “power grab.” No president – Democrat or Republican – wants the murders of Americans by her enemies to ever happen – especially on his watch. That is something that the hawkish right understands implicitly. It’s too bad the dovish left does not.


RSS feed for comments on this post.

13 Responses to “On Bush’s and Lincoln’s laws of war, and the left’s complete lack of perspective”


  1. omapian says:

    Lincoln used the fact that states in rebellion could not expect the Constitution to protect their choice to be slave or free states when he issued the Emancipation Proclamation. States not in rebellion still had a choice to be slave or free.
    Too Bad our current representatives cannot make a distinction between “we the people of the United States” and those who reject our form of government.

  2. One of the great books to read on presidential powers in wartime is Schlesinger’s “Imperial Presidency.” Yes, he was an arch-liberal historian and the book was framed to be a criticism of the Nixon administration, but his discussion of the evolution of the war powers is fascinating. Especially noteworthy in the context of Lincoln is his discussion of “prerogative:” government’s right to use even extra-constitutional means to preserve the nation from destruction. :-b

  3. Leslie says:

    I’m only going to comment on Lincoln here, as FDR’s internment of the Japanese is now widely considered to have been unnecessary, and has been apologized for.

    As for Lincoln, as ST’s quotes have made clear, he used what he regarded as his powers as commander in chief in wartime to effectively declare martial law. At that time, Congress met for only a few months a year, and I note that he cleverly failed to call them into a special session. He merely issued the decrees.


    How what he did applies to This Modern World, where the Congress meets year around, three days a week (and occasionally goes into overtime), I can’t imagine.

    Imagine if Vallandigham (you know how to Wiki, don’t ya?) had a congressional investigating committee at his disposal!

  4. alchemist says:

    Let me put it this way… if I truly feared the collapse of our government by terrorist agents (or by Civil War, WWII or Red Dawn) then I would be more inclined to allow “extraordinary measures”. As terrible as 9/11 was, and as evil as our enemies are, I don’t think the threat is of that order of magnitude. The second problem is that this ‘war’ has no definite deadline for ending.

    So when do these ‘extraordinary’ measures become obsolete? When Osama bin Laden is dead? When Al Queda is dead? When terrorist threats against America no longer exist? The last one seems unlikely to ever occur. Let me put it this way… would you be happy with Obama having unlimited power, (and unlimited time) to use wiretapping functions? Doesn’t that worry you at all?

    I don’t care who it is, I don’t want a president to have limitless authority.

    Furthermore, leaks show that these powers are NOT used as their stated intention. For example,the nightline report from last year, where translators said they picked up HUNDREDS of American soldier and diplomat private conversations to spouses. That seems like useless data to me.

    Again, I agree that some use of these measures is necessary, but I want it managed by someone outside the white house, to ensure that the process is continued legally, productively, and without political axes. I don’t think that’s too much to ask.

  5. I give up with you, alchemist. There was not one word in my post where I implied that I was in favor of “unlimited presidential power” – everything I wrote was to try to influence the left (that includes you) to put things in perspective rather than just assume Bush was blatantly grabbing power because he was “Hitler-esque.” Didn’t you read a word I wrote??

  6. yo says:

    Bits and pieces of the truth usually find their way to the surface eventually. This is why I don’t trust historians at all. They almost always have an agenda and I don’t know if the bits and pieces of truth have come out or not.

    This lesson came to me some years back as I was watching documentaries of czar nicholas of russia. I concluded that what we normally hear about him and his reign is just the product of the communists. (otherwise known as the biggest liars in history)

  7. alchemist says:

    Sure,I read your post, I’m just not responding the way you think I should.

    The problem I have with Bush is not intent, (or that he was more extreme than presidents in previous wars, since he clearly wasn’t) but that war on terror is so abstract that these civil rights infringements could plausibly be used forever.

    As such, it is different then FDR or Lincoln, whose extraordinary authority ended with a decisive victory. (Not necessarily worse, but different.). And yes, I agree that this powergrab is also different from Bush. More Nixonesque if anything(minus watergate).

  8. alchemist says:

    oops… at the end I meant Bush’s powergrab is clearly different than Hitler.

  9. Sure,I read your post, I’m just not responding the way you think I should.


  10. Great White Rat says:

    that war on terror is so abstract that these civil rights infringements could plausibly be used forever

    “Abstract”…interesting thought, alchemist. We should meet for lunch sometime and discuss how the WOT is “abstract”. How about at Windows on the World??

    Oh wait…we can’t, because your “abstraction” turned it into a smoking hole in the ground some time ago.

    ST was in New York that day, and I’ll guarantee that she doesn’t find islamic terrorism to be “abstract”. I watched it from across the river at the Newark Airport Hilton…it’s not “abstract” to me either. You – by now I’m convinced that you’re going to fudge your way out of acknowledging it until it walks up to you and cuts your head off. You brush off 9/11 like it was an isolated incident, not a klaxon that should have awakened every last one of us to the danger we face. Yes, even you. You could show AQ evidence that you voted for Gore, Kerry, and Obama and maybe even carried a No Blood For Oil sign at a rally, and they’d chop your head off a quickly as mine. And laugh while they’re doing it.

    Still seem “abstract” to you?

    Beyond that, your argument fails on other grounds.

    First, you’re looking to find an excuse to say that unless we are dealing with a nation-state that fields a formal army, has defined boundaries, etc. , emergency measures can extend indefinitely. You’re making the mistake of fighting the last war, not the current one. Your logic is that as long as the enemy is not a “government”, it’s never possible to say they’ve been defeated (no formal articles of surrender), so therefore we should do – nothing that we didn’t do on, say, September 10, 2001.

    But then you qualify your remarks by saying you might be OK with strong measures against terrorists, but only if it reached the point where “the collapse of our government” was imminent. The obvious contradiction, of course, is that if you resolve to take no strong action against non-governmental terrorism until you’re close to national collapse, you’re already too late. Personally, I’d be more concerned about the safety of the American people than preserving the power structure, but I’m not a leftist…

    As for your Nightline report – so what? Did any of those calls Nightline cited result in anyone innocent winding up in Gitmo? If AQ is using the same channels to communicate as you do when you call Aunt Helga in Munich, of course the agencies monitoring calls will notice yours. The proof that the authority is NOT being abused is the fact that no official action was taken except when a real terrorist message is intercepted. And I guarantee you that if the eeeevil Bush and Cheney were rounding up people for the crime of calling overseas, our MSM would be on it in a minute. Nancy Pelosi would have called a special session to pass articles of impeachment before you could say “Chimpy McHitlerburton”.

    You want to talk about abuse of power leading to curtailing liberty in this country? Obama’s move to politicize the Census Bureau has me more concerned for our freedoms than anything Bush did in 8 years.

    But I’m sure you find anything at all that endangers freedom an “abstraction”, as long as it comes from the left.

  11. omapian says:

    Back to the laws of war and putting things in perspective… The Supreme Court created an artificial right to privacy and the President now has to ask Congress for authority to provide for the common defense of the nation??? By that logic, the Supreme Court can protect Lady Godiva’s right to privacy by demanding that government agents look away from that which she placed on public display.

  12. alchemist says:

    GWR: The point I am continually making is that we cannot define an end to terror. Let’s say Al Queda is completely obliterated? Is the war on terror over? Or is there still a threat as long as Hamas, Iran, Taliban(et al) still have the chance to strike? The time in which ‘extraordinary powers’ are available could be infinite.

    A future president could use this extraordinary power for an extended period of time with no checks and balances, and with no measurable end to those powers. Again, this situation is different from Civil/WWII where formal declarations of war were issued, and those powers ended with the formal end of war.

    I believe Bush had no intentions of abusing the system. Still to accomplish goals in the GWOT, his administration did craft a number of legal opinions and ‘signing orders’ that insulated power in the executive in ways that could be abused in the future. And because that power is consolidated, there are fewer checks and balances to investigate such abuses.

    To reiterate, I am deeply concerned about the GWOT being used to grant extraordinary powers indefinitely, with restricted ability to investigate abuses.

  13. Great White Rat says:

    So let’s see….you admit that Bush’s use of extra powers was benign, but you’d deny it anyway, because of what some power-hungry future – or current – president might do.

    Do you even realize the irony of what you’re saying? You and your friends on the left are the ones who advocate centralizing every aspect of power in Washington. Conservatives want that power redistributed to the states and to the people. Rather than take advantage of extraordinary power, a conservative president will seek to revoke those powers as soon as circumstances warrant. Only the left resists surrendering even the slightest bit of power over our lives.

    In other words, the kind of president you’re worried about is the one you’d most likely support. If it were up to you, Bush would have been hampered in protecting Americans because you don’t trust the people you vote for.

    Which means you’re either (a) totally confused or (b) just reciting your talking points. Option b looks more likely to me.