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Abstract

The George W. Bush administration responded to the terrorist attacks of September 11th with far-reaching assertions of a vast commander-in-chief power that it has often insisted is substantially free of effective judicial or legislative checks. As Scott Shane wrote in the December 17, 2005 edition of the New York Times, "[f]rom the Government's detention of [American citizens with no or severely limited access to courts, and none to attorneys, families, or friends] as [alleged] 'enemy combatants' to the just disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of the president's authority. " The Times article lists additional examples, including the plan to try those accused of terrorism (a plan eventually limited to non-citizens) before military tribunals and ''the use of severe interrogation techniques, including some banned by international agreements, on [alleged] Al Qaeda figures." Professor Michael Paulsen has been a particularly strong and articulate advocate of broad executive power. Professor Paulsen posits a presidential power that, in times of grave crisis, constitutionally suspends almost all of the other provisions of the Constitution. From the broad perspective of the struggle for Anglo-American liberty, his claims are a bit reminiscent of claims to absolute executive power made by the Stuart kings. The Stuart kings also claimed broad, unchecked executive power, including the power to incarcerate British citizens without effective access to the courts. The claim was repudiated in the Act of Habeas Corpus of 1679. Eighteenth century Americans saw the Stuart monarchs as tyrants. Of course, the Stuart Kings-James I and Charles I-are not the model Professor Paulsen embraces. Instead he appeals to Abraham Lincoln, a revered American president. He throws Lincoln's shawl around the claim for nearly absolute power and pastes his beard on it. Professor Paulsen has his reasons. Lincoln did exert executive and military power in extraordinary and unprecedented ways. When he thought it necessary, he ignored court orders and a law of Congress seeking to limit his power to incarcerate citizens without access to the courts in areas where the federal courts were functioning. This essay is an effort to explain why we should reject the clever and alluring argument that Lincoln's example justifies largely unchecked executive power in times of crisis. It seeks to answer those, like Professor Michael Paulsen, who wrap claims such as those made on behalf of George W. Bush in the mantel of Abraham Lincoln's appeal to vast "constitutional" power based on ''necessity." In a very real sense, Professor Paulsen offers a solution in search of a problem. The problem is not that the courts and the Congress have been too unwilling to uphold executive power in times of real or supposed grave crisis. The typical problem has been excessive congressional and judicial acquiescence in executive actions that limit liberty. Over the next century or so, some American presidents may not be as trustworthy as Abraham Lincoln. But the problem with the invocation of Lincoln is deeper. Some of the actions Lincoln justified by his appeal to necessity are utterly unacceptable for a democratic society. Furthermore, Lincoln himself was unwilling to carry his necessity argument to its logical conclusion. A closer look at a few of the policies embraced by the Bush administration gives a better idea of the policies Lincoln is being used to defend. After briefly looking at some of these policies, I will consider Professor Michael Paulsen's invocation of Lincoln to support sweeping executive power.

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