Analysis: Collision course on “inherent power”?
on Dec 19, 2005 at 7:52 pm
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.”
