Analysis: Collision course on “inherent power”?
In a remarkable public discussion over the past three days of one of the most closedly guarded, secret government programs, President Bush and his top aides have provided basically two legal arguments to justify his orders of electronic eavesdropping on Americans during the war on terrorism. One of those arguments is a familiar one, a constitutional argument that has been relied upon repeatedly by the government from the very beginning of that war — yet not accepted, so far, by the Supreme Court, or even by any single Justice. The other is a fallback argument, but one that, interestingly, now reflects a significant change in the government’s thinking over the past few years.
The President’s unusual live radio address on Saturday, television talk show appearances by top aides on Sunday, a presidential press conference Monday, and a legal briefing at the White House, also on Monday, together provide the fullest account yet of the administration’s sweeping claim of Executive authority in the gathering of intelligence about potential terrorist plots, even when that involves listening in on some conversations by Americans in this country.
There does appear to be, somewhere in still-secret government files, one or more legal memoranda that give legal chapter-and-verse specifics seeking to justify the now-public claims of presidential power. But whether or not those papers ever emerge, this week’s public airing of the rationale for this intelligence-gathering venture has already filled in the basics.
It is possible, of course, that these arguments some day could become the stuff of an ultimate test case before the Supreme Court. If the Court proceeds (despite developing complications) to decide the pending challenge to the war-crimes military commissions (Hamdan v. Rumsfeld), or to the designation of a U.S. citizen as an enemy combatant (Padilla v. Hanft), the Court could confront a species of this constitutional claim. But there are, for now at least, serious questions about who might be able to test the claim in the context of electronic spying on Americans inside the U.S.
Even so, it may be that the White House is on a collision course with Congress, especially since the President and his advisers contend that the President actually needs no legislative authorization for what has been done, and in fact remains entirely free to continue as he has even if Congress were to try to impose a curb.
That, in fact, is the preferred argument, from the President on down. And it will surprise no one who has read any of the Justice Department’s legal briefs and courtroom arguments in terrorism cases that the White House is entirely convinced that the President’s “inherent authority” under the Constitution allows him to do what he alone deems necessary to protect the nation against terrorist threats.
President Bush appeared to bristle at his press conference Monday, when a reporter asked whether the nation was going to see “a more or less permanent expansion of the unchecked power of the executive in American society.” Objecting to the phrase “unchecked power,” the President said he had sworn to uphold the law, and has accepted congressional oversight. He added: “To say ‘unchecked power’ basically is ascribing some kind of dictatorial position to the President, which I strongly reject.”
It is important, then, to examine just what the constitutional claim actually is, and whether, indeed, it does acknowledge limitations. And, at the same time, to examine the fallback argument now being put forth.
The broader argument is based specifically on the commander-in-chief role described in the Constitution, but more generally on a broad conception of Executive primacy in military and foreign affairs. Of the two legal arguments now being advanced for the domestic spying actions, this constitutional assertion is preferred because it definitely would carry the furthest.
Exactly two weeks after the terrorist attacks of Sept. 11, 2001, this argument was advanced in a lengthy memo sent to the White House by John C. Yoo, then a deputy assistant attorney general. “The President,” Yoo wrote, “may deploy military force preemptively against terrorist organizations or the states that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11….The Constitution confides in the President the authority, independent of any statute, to determine when a ‘national emergency’ caused by an attack on the United States exists.”
And, exactly a year later, the Justice Department brought that sweeping argument to bear in the context of electronic eavesdropping to deal with foreign terrorist threats. In a legal brief, it claimed that “the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority.”
Attorney General Alberto R. Gonzales, in Monday’s special White House briefing on the legal basis for the domestic eavesdropping, applied the same argument anew, but this time in the context of listening to some Americans’ conversations. “The President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity.”
About two hours after that briefing, the President made the same point to reporters. “Having suggested this idea, I then…went to the question, is it legal to do so? I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely.” He based that, in part, on his dual role of “President and Commander-in-Chief,” saying that “Article II of the Constitution gives me that responsibility…to protect our country.”
That argument, of course, has been placed before the Supreme Court by this Administration. But, in the Court’s ruling in 2004 in Hamdi v. Rumsfeld, the Court refused to consider it. The government, Justice Sandra Day O’Connor wrote in the lead opinion, “maintains that no explicit congressional authorization is required” to order the detention of a U.S. citizen designated an “enemy combatant.” The government, she added, claims that “the Executive possesses plenary authority to detain pursuant to Article II of the Constitution.” No member of the Court addressed that question — including Justice Clarence Thomas, who went the furthest to support presidential authority in that case.
But the Court there did accept a fallback argument — one that parallels the assertion that the Administration is now making as its second point in favor of some domestic spying in the war on terrorism, That is the claim that Congress, in the post-September 11 resolution authorizing the President to respond to those attacks, did give the President the authority to take action (in Hamdi, the authority to detain enemy combatants, even if they were U.S. citizens, if they had been captured in a foreign battle zone).
The President and Attorney General Gonzales on Monday made that argument for some domestic surveillance. “After September 11th,” Bush said, “the United States Congress also granted me additional authority to use military force against al Qaeda.” The legal authority for foreign intelligence gathering by electronic devices, he added, derives in part from “the authorization of force by the United States Congress.”
Going into more legal detail, the Attorney General told reporters that “the Foreign Intelligence Surveillance Act [first passed in 1978] requires a court order before engaging in this kind of surveillance…, unless otherwise authorized by statute or by Congress….Our position is that the authorization to use force [the 9/11 resolution]…constitutes that other authorization…to engage in this kind of signals intelligence.”
That, of course, is a broader reading of the 9/11 resolution than the administration formerly embraced. In the Yoo memo right after the 2001 terrorist attacks, the Justice Department official said that “the Joint Resolution is limited only to those individuals, groups, or states that planned, authorized, committed, or aided the attacks, and those nations that harbored them. It does not, therefore, reach other terrorist individuals, groups, or states, which cannot be determined to have links to the September 11 attacks.”
But the Administration now is more comfortable with finding more in the language of that resolution — in large part, of course, because the courts have been giving that enactment a sweep considerably wider than Yoo thought, in 2001, that it had.
However, that separate argument appears not to be the critical one for the Administration. They could lose on that point in court, in fact, and they would still have their Article II claim. As Yoo put it in 2001, no statute “can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.”
I am appalled by the administration’s claim as put in the Yoo memorandum, and amazed that this position can seriously be maintained. If it were true, it would obviate the Constitution’s clear assignment of the power to declare war to the legislative branch. Surely the denial of the power to declare war to the Executive is a clear indication that the President’s powers as commander-in-chief and conductor of foreign policy are not unlimited.
Comment by billposer — December 20, 2005 @ 4:44 am
In arguments before the Supreme Court in the case of Hamdi v. Rumsfeld, the government argued that Congress is responsible to develop “finely reticulated provisions” limiting the power of the executive branch. As it was Congress that granted the executive the authority to use “necessary and appropriate” action in the 9/11 AUMF, so is it Congress’s responsibility to assess the current state of affairs in order to clarify activities and methods in the global war on terror.
However, Youngstown give us some denial of sweeping war powers and strengthens the role of Congress.
Yet, it seems that the fall back argument of the AUMF reads as if Congress has sacrificed it’s right to check the power of the executive in the phrasing that the president has the power to take action against anyone “he determines” poses a threat.
To further complicate matters, it would seem as if the definition of “terrorist” would come into play here. The power to put the nation to war, and thereby claiming war powers as the Commander in Chief, qualifies terrorist groups as near-soveriegn groups, and not simply militants employing a tactic. If you deem al-Qaeda as a state-like group, could one then declare war on, say, civil disobedience? The nation did not go to war against the mafia, why al Qaeda?
It seems that on one hand, the AUMF is a stretch, but at the same time strengthens the argument that the president indeed has such power because A) the AUMF says he does and B) Congress never said he doesn’t.
Comment by Stella — December 20, 2005 @ 7:42 am
The “inherent power” argument was explicitly rejected in US v. US District Court. When, in the course of history, the details of how this power was used come to light, we will see that its targets were as threatening to the US as Pun Plamondon and the White Panther Party. The “use of force” authorization will be seen to be like the Gulf of Tonkin Resolution or the Korean War “state of emergency” — a power grab by the executive, and more particularly, by the national security apparatus.
Comment by r.friedman — December 20, 2005 @ 8:26 am
Orin Kerr has an interesting, lengthy analysis on this at The Volokh Conspiracy
Comment by Kent Scheidegger — December 20, 2005 @ 9:51 am
One thing that has astonished me about the debate over the President’s actions is that almost everyone has been focused on the structural question (re: the scope of the President’s powers) and not the individual rights question (re: the constitutionality under the 4th Amendment of warrantless and probable-cause-less wiretaps within the United States). I understand that the structural constitution has become more potent over the last three decades and the individual rights constitution (or at least the 4th Amendment portion of it) has been eroded. Nevertheless, I am much more interested in the question whether these kinds of interceptions are permissible under the 4th Amendment if instituted by the proper procedure (whatever that may be) than the question whether these particular interceptions were appropriately authorized.
Comment by amsiegel — December 20, 2005 @ 10:09 am
Amsiegel, I wouldn’t say the Fourth Amendment aspect has been neglected. See, e.g., the Kerr post referenced in my previous comment.
One key Fourth Amendment question is whether interception of a US-foreign phone call or email is a “border search.” If you physically travel to or from another country, you subject yourself to more intrusive searches on less suspicion than would be allowed domestically. Does the same hold true when you send your voice or data overseas? It’s an unresolved question.
Comment by Kent Scheidegger — December 20, 2005 @ 2:57 pm
Now, Kent brings up a point, here, which I think is key to the argument made by the Administration. Isn’t it the President who exemplifies national power etc etc in foreign affairs, and it is the legislative arm of the government (i.e. the states) that hold that power domestically? So, the legal authority to monitor US persons within the boundaries of the U.S. (regardless of derivation of contact) is a state law enforcement matter and not a decision to be made by the executive.
I don’t think the Administration’s argument holds any water here, unless they are perpetually extending the grace periods within the constructs of the FISA.
Comment by Stella — December 20, 2005 @ 3:42 pm
Inherent? Perhaps. Absolute? Of course not.
The “inherent” authority of the President to conduct foreign surveillance does not, in my view, survive FISA in any other than a residual capacity, should FISA be repealed, for instance, or in circumstances not covered by FISA. To be clear, FISA clearly covers the precise circumstances in which the Bush administration has secretly conducted (and continue to conduct, presumably) its electronic eavesdropping. For exigent circumstances, one of the FISA provisions permits immediate wiretap subject to post hoc FISA-court review within 72 hours. Moreover, neither FISA nor the Constitution grant the executive authority to conduct wiretapping that is unreviewable by any co-equal branch of government.
In my view, FISA plainly circumscribes presidential authority, notwithstanding the “encroachment” dicta in the FISA Appeals Court 2002 decision. This legislation was signed into law by two presidents in 1978 and 1995. Indeed, the very purpose of FISA was for the two political branches, each with its own constitutional authority in this arena, to create a procedural structure for foreign surveillance. (By the way, Gorelick’s 1994 statement acknowledges the authority of Congress to so legislate.)
However, even if the “inherent” authority of the President to conduct foreign surveillance is more than dormant post-FISA, “inherent” authority is not the authority claimed by the Bush administration: it is not absolute authority; it is not unchecked authority; and it is not unreviewable authority. And the presidential oath of office is hardly an adequate substitute: kings take oaths, too.
The so-called “inherent” authority of the President was subject to judicial review even before FISA was enacted, and, surely, FISA did not expand the power of the presidency. FISA did not make the executive the sole arbiter of foreign surveillance activities — unchecked and unreviewed. That power was never vested in the United States presidency, either before or after FISA. Yet, that is precisely the power that the Bush administration arrogates to itself.
Comment by DavidShaughnessy — December 22, 2005 @ 9:52 am
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…’amsiegel’ correctly notes that the basics of the 4th Amendment are lost (…ignored ?) in most discussions/analysis of this domestic spying issue.
The 4th Amendment legally controls ALL government searches within the sovereign United States.
There are NO exceptions for ‘national-security, ‘war’ or ‘border-searches’. Neither Congress, President, nor Supreme Court may ‘legally’ override/modify the 4th Amendment — although they have all repeatedly done so.
Judicial warrants are required for ALL federal searches; there is zero Constitutional authority for secret courts or retroactive search-warrants.
The political principle clearly embodied in the 4th Amendment, as ’supreme-law-of-the-land’ is that… the people of the U.S. have the ‘right’ for their persons & property to be secure against searches & seizures by government agents — unless ’specific’ probable-cause of wrongdoing can be demonstrated to judicial agents against ’specific’ persons/places.
‘General’ searches are totally illegal… even if done for purposes of general law-enforcement or national-security.
Of course, the 4th Amendment places a significant restriction on government actions — and that was its purpose; an over-powering domestic government was feared ‘much’ more than ordinary criminals or foreign threats (…and rightly so!).
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Comment by ClarkW — December 22, 2005 @ 11:07 am
No, Clark, the key word is “unreasonable,” and what is reasonable has always varied with context. The border is different from the interior, prison cells are different from private homes, as so on ad infinitum. That’s why LaFave’s treatise has so many volumes. Take some deep breaths and calm down before you blow a gasket.
Comment by Kent Scheidegger — December 22, 2005 @ 6:10 pm
This issue reminds me of the Case of Ship Money in the time of Charles I of England (1637).
http://www.constitution.org/sech/sech_094.htm
(Section B).
As appears from the above link, the Head of State in that case had also been claiming that he ‘needs no legislative authorization for what has been done [collecting the tax], and in fact remains entirely free to continue as he has even if [Parliament] were to try to impose a curb.’ Also that ‘The Constitution confides in the [King] the authority, independent of any statute, to determine when a ‘national emergency’ caused by an attack on [Great Britain] exists.’ The Court accepted the royal arguments - this was before the Judges were granted tenure ‘during good behaviour’. To quote them ‘In such case your majesty is the sole judge both of the danger and when and how the same is to be prevented and avoided.’ Sound familiar?
The issue is considered in more detail in the test case of Rex v Hampden (1638) (Section C in that link).
Of course these judgments were overturned by the Ship Money Act 1640.
http://www.constitution.org/sech/sech_096.htm
Section G.
And the principle that the King is under law was finally settled by the Glorious Revolution and the (English) Bill of Rights and (Scottish) Claim of Right (1689).
Comment by Graham — December 25, 2005 @ 12:10 pm