Imbalance of Power II
Posted by Spencer Boyer
The comments on my last posting have raised interesting points concerning the President’s war powers, which I believe merit a second, related posting.
I recently served as the War Powers Initiative director for an organization based at Georgetown University. The Initiative assembled a bipartisan committee of experts with high-level executive, legislative, and judicial branch experience, including a former U.S. senator, CIA director, U.S. Appeals Court chief judge, legal advisor to the State Department, and secretary of the army, along with numerous war powers academics and scholars. The co-chairs were former U.S. representatives – one Democrat, one Republican. Our report on U.S. war powers touched on numerous points, but focused largely on how Congress needed to perform its mandated war powers duties more diligently in order for the constitutional checks and balances envisioned by the Framers to function properly.
The current controversy regarding domestic surveillance brings the debate over the proper roles of the President and Congress in the war powers arena to the forefront. Contrary to my point of view, it has been suggested that the administration’s domestic spying program is indeed authorized by Congress’s 2001 use of force authorization, which notes the President’s authority under the Constitution to take action to deter and prevent international terrorism against the U.S. It is true that the President, as Commander in Chief, can act to respond to an actual or imminent attack against the U.S. without consulting Congress and has responsibility for day-to-day tactical decision in the conduct of war. The Framers had experienced the inefficiencies of command by committee during the Revolutionary War’s early years, and did not want to repeat the mistake.
However, the Framers clearly intended Congress to exercise its collective judgment in authorizing force – absent a specific, imminent threat when there is no time to consult Congress – and did not give the President the constitutional power to ignore the terms of a congressional authorization for the use of force. As Justice Paterson said in Bas v. Tingy, construing the statutory authority for America’s first war against a foreign state, “[a]s far as congress tolerated and authorised the war on our part, so far may we proceed in hostile operations.”
As noted in my earlier posting, the 2001 authorization gives the President authority to use “necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” As also noted, Attorney General Alberto Gonzales claims that warrantless domestic surveillance by the National Security Agency did not violate the Foreign Intelligence Surveillance Act because FISA only requires a warrant “unless otherwise authorized by statute,” and that the 2001 authorization gave the administration such permission.
However, recent news reports point to evidence of a widespread data mining scheme, which collected information from American citizens who had nothing to do with the attacks of September 11. This would clearly be outside of what Congress authorized the President to do in its authorization, and, given that the surveillance program has been going on for years, could hardly be viewed as a response to an actual or imminent attack for which there was no time to consult Congress.
In addition, arguments that Congress was consulted and had input on the administration’s domestic spying program are weak. Less than 10 of our 535 members of Congress were briefed about the domestic spying program, and were prohibited from discussing the briefing with anyone. This is not the role the Framers would have envisioned for Congress in such matters.
As Suzanne Spaulding mentioned in her Washington Post Outlook piece on Sunday, “Sandra Day O’Connor rejected the administration’s claim of unchecked power in the 2004 Hamdi case, in which the government argued that the courts could not review the legality of enemy combatant detentions. She wrote, 'We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens…. Whatever power the United States Constitution envisions for the Executive in its exchanges with… enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.' ”
Instead of putting forth dubious constitutional arguments that trample on Congress’s established war powers, the administration should admit that it was wrong to ignore the prohibitions of FISA. If the President thought there were something wrong with the law, he should have worked with Congress to repair it. Disregarding it should not have been an option. If the checks and balances envisioned by the Framers are to mean anything, Congress and the courts must review this matter and the administration must be held accountable.