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Bush Postpones 2008 Election

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Cites Constitutional Power to Protect Nation's Security

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Stephen Gillers
Stephen Gillers teaches legal ethics at New York University School of Law.

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What Did 'Four Years' Mean in 1789?

WASHINGTON, June 21, 2008. President Bush, citing his authority as Commander in Chief of the armed forces and his inherent constitutional power over foreign affairs, today ordered a postponement of the 2008 presidential election in order "to protect the American people in our war on terror."

In a speech during a surprise visit to Baghdad, where he celebrated the summer solstice with the troops, Mr. Bush told the nation that the election will be "rescheduled as soon as a change in leadership does not create a security threat and not a second later. When the Iraqis stand up, we'll vote."

"Elections are important," the President acknowledged. "I know that. I believe in elections. I'm President because of an election, sort of. But protecting the nation from another 9/11 is more important than holding an election precisely on time."

The President noted that as Commander in Chief he had already approved telephone wiretapping without court warrant, incarcerated alleged "enemy combatants" indefinitely without trial and, in a February 2002 order, now rescinded, had authorized the armed forces to ignore the Geneva Conventions when "consistent with military necessity," so long as everyone was treated "humanely."

"If I can do all that, I can defer an election," the President said. "Look, as between not voting on time and getting locked up without all those Geneva rules and such, which is worse?"

In a Washington press conference following the President's speech, Attorney General Alberto Gonzales laid out the legal basis for his department's conclusion that the President could postpone the election.

"Legally, it's simple," Mr. Gonzales said. "It depends on what the meaning of 'four years' is. The Constitution says the President 'shall hold his office during the term of four years.' It does not say 'only four years' or 'four years and not a day more.' The Framers intended 'four years' to be a preference, not a rigid number. We should not take it literally any more than the words 'hold his office' means no woman can be President. A woman is running now.

"Time meant something different in 1789," Mr. Gonzales added. "This was before airline schedules and self-winding watches. People didn't run their lives by the clock. Many Americans didn't have clocks."

In a speech on the Senate floor, Joseph Lieberman (IND-Conn.) supported the President's decision. "While I do not believe we should lightly suspend the exercise of the franchise," he said, "protection of the nation cannot be and must not be a partisan issue. As Americans, we can all agree that security is the most important job of a President. We can have a country without an election, but we cannot have an election without a country. It's as simple as that."

Senator Hillary Rodham Clinton (D-N.Y.), the likely Democratic nominee, had no immediate comment, but her office said she will hold a news conference following the results of early polling. A spokesperson for her campaign, granted anonymity because she was not authorized to speak to the press about anything, said the senator "is absolutely opposed to postponing the election as such, but she is amenable to rescheduling the day designated for the actual vote. There is a difference."

Senator Arlen Specter (R-Pa.), chairman of the Judiciary Committee, said he was "troubled" that he had not been consulted on the President's decision. He vowed to "hold hearings following the day that should have been election day if I am chairman of the committee at that time. Unfortunately, we're backlogged on judicial nominations at the moment, and then there's the summer recess. People have plans and nonrefundable tickets."

At his press conference, Mr. Gonzales denied that the Supreme Court's 2006 rejection of military tribunals meant that the President could not delay an election. That decision, known as Hamdan, rested on federal statutes and the Geneva Accords. "Hamdan was about trials, not voting," he explained. "Geneva doesn't apply to voting. It's a mistake to confuse the two."

Asked if he expected a court challenge to the President's decision, Mr. Gonzales said he was "resigned to the prospect that some may cynically try to use this for their own political advantage." But he added that he was "confident that if the case reaches the Supreme Court, five Justices will agree with our interpretation of 'four years.'"

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