War Powers: Is Bush Making History?

America's most revered presidents often expanded their Executive power. Then again, so did America's most reviled Presidents. Judged against past precedents and past Presidents, how do George W. Bush's recent actions rate?

Since Sept. 11, the Bush Administration has detained more than 1,000 noncitizens, waged a foreign war, helped Congress broaden wiretap authority, endorsed military trials for alien alleged terrorists and authorized eavesdropping on certain conversations between lawyers and clients. Most of these measures find support in past practice. But some raise serious doubts.

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Begin by considering the first President. As a general in the American Revolution, George Washington approved a military trial for Major John Andre, an enemy spy. But the Revolution's precedents only faintly support Bush's proposed military tribunals. Washington acted years before the Constitution was adopted, and the war had disrupted civilian courts and jailhouses. Justice in a total war on American soil had to be summary.

Abraham Lincoln also faced such a war. Congress was not in session when he took office, so he acted unilaterally at first, waging war and even suspending habeas corpus in places. But he then summoned Congress and asked for laws blessing his actions. Congress largely obliged. Lincoln also authorized various military trials, but the 1866 Supreme Court held that citizens not charged with war crimes should be tried in regular civilian courts whenever such courts were open.

Contrast Washington and Lincoln with two failed Presidents. Lincoln's successor, Andrew Johnson, became President because of one man's bullet rather than all men's ballots. Yet he unilaterally undid several Lincoln policies, flouting federal law in the process. Unlike Lincoln, who built bridges to leading war Democrats, Johnson demonized his critics. So did Nixon a century later. Equating criticism of the Vietnam War with disloyalty, Nixon hit the opposition party with illegal surveillance and electoral dirty tricks.

In the case of another wartime President, F.D.R. allowed more than 100,000 Japanese and Japanese Americans to be herded into detention centers. Acting in an era when Jim Crow still reigned, the Supreme Court upheld these racially charged detentions. In 1988 Congress enacted a law that officially apologized to surviving detainees and offered symbolic reparations, but the Supreme Court has not yet squarely overruled these precedents. Bush has detained many fewer people than F.D.R., has limited his detentions to aliens, and claims specific reasons for suspecting each detainee. Legally, these detentions may hold up. But morally, targeting voteless aliens raises questions: Who are these people, and what are they suspected of? How many are being held without criminal charges? In its defense, the Administration may argue that if an alien is released and leaves the country, getting him back later as a defendant or a witness may be impossible.

F.D.R. also used military courts to try a few Nazi saboteurs found on American soil. But these trials were for violations of the laws of war after Congress had formally declared war. Although Congress has blessed Bush's Afghanistan campaign, it has not formally declared war. This difference may matter to civilian judges down the road.

Judged by historical standards, Bush gets mixed marks. His detention of aliens is much less draconian than F.D.R.'s, and Bush has preached against racial scapegoating. Congress has endorsed the additional wiretap authority. Military trials for alien terrorists would go beyond World War II precedents, but not by miles. Even if constitutionally permissible, however, nonpublic, nonjury military trials may be grossly unwise, forgoing the opportunity to showcase dramatic evidence of wrongdoing as well as America's fair judicial procedures.

Hardest to defend is Bush's recent regulation allowing federal agents to eavesdrop on certain lawyer-client conversations. The regulation covers citizens as well as aliens, encompassing people not even charged with crimes, much less convicted. Bush would eavesdrop unilaterally, without any O.K. from a judge. Nothing in Congress's recent antiterrorism legislation authorizes this unprecedented regulation; indeed, leading lawmakers were not even consulted. The Executive unilateralism here recalls Harry Truman's seizure of steel mills in 1952 to guarantee supplies for the Korean War. In a landmark decision, the Supreme Court ruled against Truman because Congress had pointedly declined to authorize such seizures.

History's largest lesson is that wise wartime Presidents act in coalition with other branches of government and opposition party leaders. Acting without Congress, without the courts and without a statute or precedent nearby is more likely to get a President in hot water than to get him on Mount Rushmore.

Akhil Reed Amar teaches constitutional law at Yale and is the author of The Bill of Rights: Creation and Reconstruction