June 9, 2004 - The doctrine of sovereign immunity has its roots in the medieval common law of England.  Under that doctrine which is now a part of the common law of each of the States and of the United States the sovereign cannot be hailed into court to answer for wrongs unless the state or the United States has permitted such a legal suit by appropriate legislation.  In early 2003 a  Pentagon working group commissioned by the Secretary of Defense to prepare a brief defending  the treatment of people who might be detained under the authority of the President of the United States.  The working group reported on March 6, 2003 just 13 days before the first strike opened the Second Iraqi War and opined:

“In order to respect the President’s inherent constitutional authority to manage a military campaign, 18 U.S.C. § 2340A {the prohibition against torture} must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war. The President’s power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander-in-Chief. A construction of Section 2340A that applied the provision to regulate the President’s authority as Commander-in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions. Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direst troop movements on the battlefield. Accordingly, we would construe Section 2340A to avoid this constitutional difficulty, and conclude that it does not apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.” 

In our system of constitutional representative democracy sovereignty does not rest in the President of the United States in any capacity. Sovereignty resides in the people.  The person who temporarily occupies that high office has no higher legal status as President than the meanest homeless person sleeping on a subway grate wrapped against the cold in yesterday’s discarded newspaper.  Both are equally subject to the sovereignty of the people expressed in their laws. 

That any lawyer schooled in an American school of law could seriously write the passage quoted above demonstrates the precarious position to which the American principle of egalitarian representative democracy has come in this New American Century.  That any administration, Republican or Democrat, could adopt the rationale of that passage elevating the President and those acting under his authority above the law is so chilling as to be a harbinger of the demise of Americanism in America. 

George W. Bush is not king.  He and his subordinates are neither above the regulation of the law nor beneath its protections.  They stand, as do all of us, subjects of the people’s sovereignty as expressed through the Congress of the United States; subject to the regulation of their conduct and answerable to the Constitutional authority of the Courts and Congress.  It is to the Constitution that the President, his subordinate officers and each member of the Armed Services swears allegiance not to the person of the temporary head of state.  It is the Constitution and the nation’s laws under the Constitution that binds and regulates their conduct.   The proposition that the President is above the law when acting in any capacity is alien to our most cherished principles and patently Anti-American.