Here is a question that conservative senators should ask Harriet Miers before voting on her nomination to the Supreme Court: “What are the constitutional and just war issues raised by administration plans for a preemptive nuclear attack on terrorists?
On August 22, I questioned whether these plans would meet the just war tests of last resort and legitimate authority. The question of the President’s legitimate authority to wage war is treated under article II of the Constitution
Now I read in Charles Krauthammer that Miers may be mute on this question.
… But what does she bring to the bench?This, say her advocates: We are now at war, and therefore the great issue of our time is the powers of the president, under Article II, to wage war. For four years Miers has been immersed in war-and-peace decisions and therefore will have a deep familiarity with the tough constitutional issues regarding detention, prisoner treatment and war powers.
Perhaps. We have no idea what her role in these decisions was. But to the extent that there was any role, it becomes a liability. For years -- crucial years in the war on terrorism -- she will have to recuse herself from judging the constitutionality of these decisions because she will have been a party to having made them in the first place. The Supreme Court will be left with an absent chair on precisely the laws-of-war issues to which she is supposed to bring so much.
In making contingency plans for a preemptive strike on terrorists the executive branch is proposing a massive expansion of its power. This is the same administration that wants to expand the role of the military in domestic disasters.
Conservative Senators should be asking some hard questions. I will suggest them to Senator’s Warner and Allen.
Linked to Beltway Traffic Jam for 10/14/05
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