01:00 AM EST on Friday, February 17, 2006

SAN FRANCISCO

EXECUTIVE POWER seems to be the hot political topic these days, and with good reason. The National Security Agency's unwarranted domestic surveillance and last year's fight over Sen. John McCain's anti-torture amendment demonstrate the Bush administration's desire for ever-greater executive prerogatives.

On one level, this sets up a political debate, with an array of partisan arguments both defending and attacking the administration's power grab. But it's also a constitutional debate -- one whose ramifications could reach far beyond today's political landscape. This is why one of the administration's arguments in particular constitutes a dangerous misrepresentation of fact.

U.S. Atty. Gen. Alberto Gonzales has claimed that the administration "believe[s] the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in [the unwarranted domestic surveillance]."

One must be careful, however. All too often, the simple utterance of "Constitution" or "constitutional" is accepted as an argument, in and of itself.

The "commander in chief" clause of the Constitution can be found in Article II, Section 2: "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States."

Note in Gonzales's statement the truncation of this clause. He didn't omit the latter part just for expediency's sake; rather, the administration knows that significant differences in perception exist between the truncated and the complete clauses.

The truncated clause, shortened simply to "Commander-in-Chief," has a succinct, authoritative ring to it. The term conjures martial leadership and resolve, and the powers needed by an executive in time of war. The complete clause complicates matters.

"Commander-in-Chief" doesn't sound martial by accident; it is martial. Yet George Bush is the commander in chief of the U.S. armed forces; he is the president of the United States. The terms are not interchangeable; military officers lead armies and navies, not civilian states. Referring to the president as the commander in chief of the United States is akin to referring to a governor as the general of a state, or to a ship's captain as its mayor.

The difference is far more than semantic. It speaks to the extent and nature of the authority the executive seeks. To conflate the terms, especially in a time of conflict, is reckless and deceptive.

The administration's truncation of the Constitution is not limited to the unwarranted domestic surveillance program. Shortly after Bush signed Senator McCain's anti-torture amendment, the administration quietly released an accompanying "signing statement," noting that the administration would interpret the amendment "in a manner consistent with the constitutional authority of the president as commander-in-chief." The power of the truncated "commander-in-chief," it appears, is widely applicable.

If this tactic of constitutional truncation sounds familiar, it should. It has been widely used in the debate over gun control, whereby opponents cite the Second Amendment words ". . . the right of the people to keep and bear arms, [sic] shall not be infringed," while omitting the preceding words: "A well-regulated militia, being necessary to the security of a free state, . . ."

The administration's tactics, then, are by no means original. In a democracy -- perhaps more so than anywhere else -- verbal imagery is a potent tool in any politician's arsenal.

So far, the debate over increasing executive prerogatives has been fought primarily between the executive and the legislative branches of government. Inevitably, it will end up in the hands of the judiciary, which has already said a few things about the Constitution's "commander in chief" clause. In Youngstown Sheet & Tube Co. v. Sawyer (1952), the Supreme Court ruled that President Truman could not seize U.S. steel mills during the Korean War. In the ruling opinion, Justice Hugo Black wrote, "Even though 'theater of war' be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power. This is a job for the Nation's lawmakers, not for its military authorities."

Although the circumstances then were different from now, Justice Black stressed the inherent limits of a president's "commander in chief" powers. When such limits create gaps in the nation's ability to wage war, they can be filled only with legislative -- not executive -- authority.

By resting so much of its argument over executive prerogatives on a misleadingly truncated interpretation of the Constitution's "commander in chief" clause, the Bush administration is betraying its true intentions. Until the judiciary becomes more involved in this debate, the burden of responsibility rests solely with the executive. Such loose, selective interpretation of the Constitution does not speak highly of the administration's motives.

Daniel Widome, a former editor in chief of the Brown Journal of World Affairs, is a San Francisco-based writer and foreign-policy analyst (Daniel.Widome@gmail.com).