U-2 FLIGHTS, PRESIDENTIAL POWERS, AND THE CONSTITUTION

[Bob Sheridan]

Apropos of the presidential claim to possess a national security power 
implicit in the Constitution, although one not necessarily authorized by 
Congress, or perhaps even in violation of a national law, I was struck 
by the following from Prof. John Lewis (Columbia) Gaddis’s new history, 
_The Cold War_ (Penguin, 2006):

    “On July 4, 1956, a new American spy plane, the U-2, made its maiden
    flight over Moscow and Leningrad, snapping excellent photographs
    from a height well above the range of Soviet fighters and
    anti-aircraft missiles.

    ...The flights continued at regular intervals over the next four
    years. The Russians, who could detect them on radar but could not
    shoot them down, confined themselves to perfunctory protests, not
    wanting to advertise their inability to control their airspace.

    The Americans, aware that the flights violated international law,
    said nothing at all while reaping an intelligence bonanza.” (P. 73)


Am I glad that Pres. Eisenhower, the former general, instituted the U-2 
program, which lasted until U.S. Lt. Col. Gary Francis Powers was shot 
down in 1960 when Russian missiles finally developed climbing power? You 
bet I am. The Cold War was played for far higher stakes than the Trade 
Center, with no disrespect intended to them and those. Mutually assured 
destruction, mad as it was, existed for a reason. Gaddis is wonderful, 
incidentally, on the Cold War psychology, including such paradoxes as 
that total nuclear war would eliminate the goal of such a war when 
killing the enemy meant suicide for yourself.

Did Ike act in excess of his authorized power? Was Congress clued in 
before Mr. Khruschev brought to our attention that he held Mr. Powers? 
The president could have gotten us into a war, as could've Kennedy in 
his dealings with the same Khruschev during the Cuban Missile Crisis.

Pres. Bush authorized eavesdropping on the latter day Stalin, Osama Bin 
Laden and his supporters, in violation of the 4th Amendment and FISA, 
apparently.

Is there any comparison worth making between the two scenarios, Ike and 
Bush, in terms of their apparent illegality and their potential negative 
consequences? And potential beneficial consequences?

Could there be something to the argument of the Watergate Plumbers that 
if the president orders it, it’s legal? At least when it comes to 
foreign adversaries in the nature of war-makers on us? Did the Framers 
think of this problem? What do the originalists have to say about this, 
I wonder.
Would they stretch the Constitution, let it evolve in light of modern 
circumstances a bit to save it?

Just a thought.

rs
sfls
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