Presidents have often asserted disputed powers in the name of national security. Abraham Lincoln, citing a necessity to suppress support for the Confederacy, suspended habeas corpus, the right of suspects to challenge charges against them, in the Civil War.
Eighty years later, after the Japanese attack on Pearl Harbor, President Franklin D. Roosevelt ordering the detention of more than 100,000 Japanese and American citizens of Japanese descent.
Historians often cite these two events, and the circumstances under which the two presidents made such swift and divisive assertions of executive power, as most fitting to the current debate over moves made by President Bush in the wake of September 11.
With the Senate Judiciary Committee today opening hearings, “Wartime Executive Power and the NSA’s Surveillance Authority,” administration backers argue Mr. Bush’s actions pale in comparison to those of past wartime presidents.
Critics rip the administration’s assertion that the terrorist attacks warranted interrogation techniques beyond limits on torture set by federal law, open-ended detention of suspects without charges and spying on Americans without oversight.
Many scholars, however, are divided on whether the executive has gone too far.
“All wartime presidents expand their powers to some extent. It’s sort of a natural inclination under the pressure of war,” says John D. Hutson, president of the Franklin Pierce Law Center in New Hampshire and a former judge advocate general of the Navy.
“Whether you think it’s a good idea or not that this is an administration that is drawing power very much to the executive, and to some extent that’s a zero-sum game, meaning there is only so much power out there and to the extent that he gets it, it’s coming from somebody else, some from Congress, some from the courts and some from the people.”
Gary J. Schmitt, director of the program on Advanced Strategic Studies at the American Enterprise Institute, says “the Constitution was designed with different institutional capability, and it’s no surprise that in times of a national security crisis the institution that’s most institutionally capable of handling such will step into the breach.”
President Bush appears to have permanently carved his place in the debate by acknowledging that since September 11 he has authorized the National Security Agency to electronically spy on people in the United States communicating with suspected terrorist-linked individuals overseas without warrants from a secret court created by a 1978 federal law to oversee such activities.
His argument for such powerful moves is twofold, centering on his reading of the Constitution’s definition of the president as commander in chief and his interpretation of a bill passed by Congress weeks after September 11 authorizing him to use “all necessary and appropriate force” to prevent a future attack.
The Founders
It’s a fight that goes back more than 200 years. Before the Constitution, it reared its head in the Federalist Papers written by Alexander Hamilton, John Jay and James Madison.
“Energy in the executive,”Hamilton wrote in 1788, “is essential to the protection of the community against foreign attacks.”
Jay cautioned against too powerful an executive, since kings with too much power make war “for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts.”
Madison called for power to be shared, writing that neither the president nor the Congress, or the courts “ought to possess, directly or indirectly, an overruling influence over the others.”
The Constitution drew from each, vesting the power to make laws “in the Congress,” making the president “commander in chief” of the military, and leaving it to the courts to resolve disputes between the two.
Concentrating the mind
Administration backers say the country is at war and that critics should lighten up.
“I think critics exaggerate the possibility of a presidential power-grabbing,” says John C. Yoo, a law professor at the University of California at Berkeley who was intimately involved in shaping key post-September 11 policies as a deputy assistant attorney general from 2001 to 2003.
“When you compare the Bush administration and its response to the attacks of 9/11 to what previous presidents have done in wartime, I think the Bush administration has acted with a fair amount of restraint,” Mr. Yoo said. “The administration in a way has become a victim of its own success, because if there had been another 9/11, I think the demands for aggressive policies would be great.”
Be it Lincoln during the Civil War, President Wilson during World War I, Roosevelt in World War II, President Truman in the Korean War, or Presidents Eisenhower, Kennedy and Nixon before and during the Vietnam War — whenever a president is perceived to test the limits of his power, the result is intense debate on Capitol Hill, forced interaction between the branches and, at times, the development of new law.
“What always happens whenever the nation is at conflict is there is always this debate about what the president can and can’t do,” said Mr. Schmitt. “The Constitution isn’t perfectly clear about these issues, and there’s always room for debate, and of course, war has a way of concentrating the mind.
“It’s also perfectly the case that you can expect both the courts and Congress, as they have done historically, to weigh in from their perspective, and that’s how, in fact, we get limits and limited government,” he said.
Still, critics of President Bush’s NSA surveillance program say it is different from past executive-power assertions because it deals specifically with an administration’s intentional avoidance of a previously passed law.
The Foreign Intelligence Surveillance Act (FISA) set rules for electronic surveillance and established a secret FISA Court to grant classified warrants to federal agencies seeking to spy domestically.
Kenneth C. Bass III, a Washington lawyer who was involved in creating the act as a member of the Carter administration’s Justice Department during the late 1970s, calls domestic spying without FISA oversight a “blatant, arrogant assertion of unilateral executive authority in the face of a statute.”
Curtis A. Bradley, a professor at Duke University Law School, who has publicly supported broad authority in the executive in other areas of the war on terror, says he is “particularly concerned when the executive claims an ability to override statutes enacted by Congress.”
In the past, the legality of wartime presidential actions has been fought over during war and well into the years after war had passed.
After the Civil War, the Supreme Court ruled it unconstitutional for Lincoln to have used special military tribunals to try civilians who were arrested without habeas corpus rights. While the high court sided with Roosevelt during World War II, Congress and multiple presidents have apologized for the racism that underscored his internment camps. More than $1 billion has been authorized as payment to the camps’ survivors.
But debate never seems to end. “Many scholars would view Lincoln’s suspension of the writ of habeas corpus as legally problematic, but some of them may nevertheless find it understandable in light of the situation with which he was presented,” said Mr. Bradley. “By contrast, most scholars are critical of both the legality and policy wisdom of the internment of Japanese-Americans by the Roosevelt administration.”
“Historical judgment on the claims being made by the Bush administration will need to await the passage of time.”
Fueled by 9/11
Policies a president embraces in war are affected by public opinion. The same is true of Congress, which throughout history has tamed its desire to restrict executive power until there was sufficient public outcry.
President Bush’s expansion of executive authority has been “fueled by, affected by and brought out of the closet by 9/11,” said Mr. Bass. “We wouldn’t have seen this extent of reaction if we hadn’t been attacked,” he said. “It has been exacerbated by 9/11, and it was given political acceptability.”
Public reaction depends heavily on the circumstances in which a president asserts his power. Mr. Hutson noted the “evolutionary history of the balance between Congress and the president has relied to some extent on the situation that you face at the time.”
According to Mr. Bradley, “the likelihood of either congressional or judicial limitations on the president during times of war will be affected by the president’s popularity.”
This is what prompted the Supreme Court’s backlash against Truman, a Democrat, during the Korean War, he said. The court’s move in 1952 to block Truman’s attempt to seize control of 87 steel plants, whose production at the time had been slowed by tumultuous union strikes, was likely driven by the general “unpopularity of the war.”
President Truman’s refusal two years earlier to ask Congress to declare war officially despite having already deployed troops to South Korea had angered many, including Ohio’s staunchly conservative Sen. Robert A. Taft, who called the move “a complete usurpation by the president of authority to use the armed forces of the country.”
In light of the debate over Mr. Bush’s authorization of NSA spying, some point to the Nixon years at the end of the Vietnam War as the most recent example of a president crossing the line. Public outcry over Watergate led to Mr. Nixon’s resignation in 1974.
But unlike the current situation, notes Mr. Bass, Mr. Nixon’s activities were “not fueled by any foreign attack on the United States.” Rather, he said, they were driven by paranoia and “zealotry that was induced by a concept of the misguided American youth being duped by the communist monolith.”
“That’s different from a foreign attack or time of war,” he said.
Necessary and appropriate
This week’s hearings may hinge on a battle over the meaning of a few words.
The authorization for use of military force passed by Congress in October 2001 allows the president to “use all 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
At issue is the phrase “all necessary and appropriate,” and whether it can be read, as the administration asserts, as a justification for implementing war-fighting tactics that ignore laws set by the Congress before the terrorist attacks.
There is debate on whether the phrase was intended to force the president to take pause before attempting to expand executive power, or, the opposite, to flat-out grant him authority to take whatever measures he deemed necessary to win.
An article in the Harvard Law Review last summer by Mr. Bradley and Jack L. Goldsmith, of the University of Chicago Law School, suggests Congress had the latter in mind. “Analogous phrases in the Constitution have not been construed restrictively,” the two wrote, adding that it seems unlikely that Congress would have used the phrase “as a way to constrain presidential authority.”
Mr. Schmitt, meanwhile, contends Congress authorized the president power to wage war, which includes intelligence collection, and that the administration’s argument that the authorization supercedes FISA compares to Lincoln’s for suspending habeas corpus.
“Like Lincoln suggesting in his case, do you let one law stand in the way of the whole of laws standing up?” Mr. Schmitt said. “The war itself doesn’t fit specifically within our traditional understanding of national security laws that were drafted with the Cold War in mind,” he said. “I don’t think we’re in a situation like the Civil War … that said, we are in a state of conflict, and you would expect that the president’s going to address those problems.”
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