U-2 FLIGHTS, PRESIDENTIAL POWERS, AND THE CONSTITUTION
bobsheridan at earthlink.net
Mon Mar 20 23:54:28 PST 2006
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
...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,
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,
Would they stretch the Constitution, let it evolve in light of modern
circumstances a bit to save it?
Just a thought.
-------------- next part --------------
A non-text attachment was scrubbed...
Size: 73 bytes
Desc: not available
Url : http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20060320/c7bc5e8c/bobsheridan.vcf
More information about the Conlawprof