Tuesday, February 07, 2006

I suggest you check out Jeff Medcalf's post on war powers and the NSA wiretapping at Caerdroia:

"The Constitution does not limit the President to fighting the enemy abroad, nor require a separate declaration of Congressional intent to fight the enemy in the United States. The President's power is to fight the enemy defined in the declaration of war, wherever that enemy is.

Thus the President has the power to surveil the enemy wherever that enemy is.

The question becomes, who is the enemy? That is answered by the AUMF: "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons".

The Congress explicitly gave the President to power to determine who the enemy is, within the limitation of being connected to 9/11. Since the President decided that this includes al Qaeda, any al Qaeda operative falls within the definition of the enemy even if that operative is a US citizen. The term we're searching for here is "treason", though for the life of me I cannot understand why we aren't charging people such as Padilla, Hamdi and Lindh with exactly that. Hamdi and Lindh, in particular, were captured on the battlefield and the case is a slam dunk (Padilla is a harder case, and a court is going to have to work that one out).

The only valid way to claim that the surveillance is illegal is to claim that the AUMF does not trigger the President's war powers because the AUMF is not a declaration of war. But nowhere in the Constitution is the President's power to make war divided between "real wars" and "so so wars": there is no way to grant the President the power to make war except to declare war. The Constitution does not require that such a declaration contain particular wording, such as "a state of war exists between the United States and [enemy]". So on what grounds, other than claiming that the Constitution is a "living document" and means whatever we want, can anyone claim that AUMF is not a declaration of war? If not, then what is it?"

Jeff has hit the nail on the constitutional head. There is no such legal distinction unless specifically articulated by the Congress in the language of their AUMF which makes the " not a real war" argument legally specious. And in the case of the 9/11 resolution, the Congress itself declared the terms of the War Powers Act to be satisfied by the AUMF.

International law is even more of a slam dunk than American Constitutional law as IL requires only the de facto recognition of a " state of armed conflict". We have a de jure recognition by NATO which has invoked Article IV, recognizing 9/11 as an act of war for which " an attack against one is an attack against all".

The Bush administration may be politically inept but they are constitutionally correct and their critics are wrong. AUMF trumps FISA. Separation of powers trumps statutes.
No way. He doesn't have the power to ignore law. The problem is that Congress won't stand up for its position as a co-equal member of our government.
Mark, this analysis is totally wrongheaded. I can't believe you're even entertaining the claim that the President's Commander-in-Chief powers allow him to violate express congressional limits on, in this case, domestic surveillance. I mean, this argument is so weeks ago.
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The received liberal blogospheric wisdom on this issue is mostly wrong and founded on little more than hot partisan air.

Co-Equal does not mean " superior" which the Legislature would be in circumscribing the president's war powers. If you can show me where Article 1 grants them such authority, fine but if not, then not.

In the last analysis, the Congress can't do that any more than they might attempt to regulate his use of the veto, the pardon or his powers of appointment - which they tried once with the Tenure of Ofice Act and I assume you know how that worked out.

The Congress has basically three - constitutional avenues here to rein in a president's use of war powers once war has been declared:

1. In the text of the AUMF defining the use of force and the parameters of the conflict. This is the essence of declaring war. The legislature decides and defines and with 9/11 they gave away the store to Bush.

2. Through the power of the purse to coerce the executive into changing policy

3. By impeachment.

That's it. Which is why you are not going to see the Democratic leadership in Congress running to SCOTUS - because unless Bush's has wandered beyond the AUMF's language they will lose.

And they will lose because if SCOTUS were to rule otherwise then they would be saying that Congress essentially can micromanage by statute all of the ennumerated powers of the Executive, not merely the derivative ones the presidency has been granted by Congress.
I think Jeff missed a few things in that post adn wrote a couple lengthy comments over there (well, the second hasn't been approved yet, but I posted it at my own site). The key difference, I think, is that we're not in an Art. I Sec. 8 "declare war" world. If we were, then I think the application of FISA would probably be unconstitutional. But FISA does apply in this world, and what I'd do if I were the Bush administration would be to structure the surveillance around FISA's technical definitions.
The pro-Bush blogsphere (I don't use liberal or conservative because many conservatives have come to the same conclusions you ascribe to partisanship) is not totally out to lunch on these issues, but they are wrong.

1) The Constitutional architecture is not designed to create "co-equal" branches. The Constitution does not, to my knowledge, use that phrase. The architects of the Constitution were very clear in their writings that the Executive branch's powers were supposed to be weak and limited.

2) The Commander-in-Chief powers do not, as you assert, give the Executive the right to over-ride express legislative restrictions. It gives him the right to prosecute wars. Period. Indeed, most of the substantive powers -- of the type contemplated by 18th century political thinkers -- involving warfare were granted to the Congress, e.g., the power to issue letters of marque and seizure.

3) There is no parallel here with the Tenure of Office Act, except that the controversy involved the Secretary of War. I am surprised that you would assert one.

4) The issue of remedy here is independent from the issue of whether or not the President's behavior is illegal and unconstitutional.

5) The fact that you assert the AUMF delegated the power to the Executive branch: (a) belies your claim that it is an inherent power and (b) makes the mistake of reading the text of the AUMF in a vacuum. I suppose that if the President ordered the assassination of every member of Congress on the grounds that they were Al-Q operatives you would argue that his actions were legal and Constitutional? Because that is what the reading of the AUMF you endorse implies.
I probably should be writing a new post or working o my review of 4GW right now but it's more interesting to deal with Dr. Nexon.

Let's see...

Regarding your first point I have several observations:

It is true that the Framers gave the lion's share of the ennumerated powers to the legislative branch. OTOH they also saddled it with very specific restrictions and divided it against itself instead of opting for a unicameral body. Their experience with the Continental and Confederation congresses and the writing of state constitutions are what led to the establishment of an executive at the national level.

The view of separation of powers as articulated by Montesquieu in _Spirit of the Laws_ ran deep at the convention and was part of all the members practical experience in colonial assemblies and state governments. These principles were widely and well understood. Here is Adams writing way back in 1776:

"But shall the whole power of legislation rest in one assembly? Most of the foregoing reasons apply equally to prove that the legislative power ought to be more complex; to which we may add, that if the legislative power is wholly in one assembly, and the executive in another, or in a single person, these two powers will oppose and encroach upon each other, until the contest shall end in war, and the whole power, legislative and executive, be usurped by the strongest.

The judicial power, in such case, could not mediate, or hold the balance between the two contending powers, because the legislative would undermine it. And this shows the necessity, too, of giving the executive power a negative upon the legislative, otherwise this will be continually encroaching upon that.

To avoid these dangers, let a distinct assembly be constituted, as a mediator between the two extreme branches of the legislature, that which represents the people, and that which is vested with the executive power."

Sounds like separation of powers to me.

Moreover, we know quite well that the Founders had varying views on interpreting the powers of the executive. Hamilton favored a stronger executive than Adams, Adams moreso than Madison, Madison than Jefferson, Henry and radical Antifederalists. Jefferson, the apostle of democracy and limited government, in practice proved to be a strong executive who interpreted his authority broadly.

Point 2 & 3:

The legislative power naturally seeks to control the exercise of the excutive function but when they attempt to invade the executive's ennumerated powers they usually overreach. The Congress may declare war - i.e. identify the enemy. They raise the army and navy. They make laws for the armed forces. They give advice and consent on high military appointments but they cannot micromanage the president's powers of command. Once war is declared their role is indirect. Attempts to do so - as with the War Powers Act and the wartime subsection of FISA - are correctly ignored by the executive as unconstitutional infringements.

As the Tenure of Office Act was unconstitutional as it attempted to restrict the President's powers of appointment in general - not just regarding Stanton.

4)There is no illegality for violating an unconstitutional law. Ford, Carter, Reagan, Bush, Clinton, Bush II have generally not complied with the War Powers Act and now that law is effectively a dead letter. How is violating FISA qualitatively different in a constitutional sense from violating the WPA ?

5)AUMF is not a delegation of power but a declaration of war and a definition of the enemy - which is the proper role of Congress.

Having been attacked on 9/11, Bush had all the inherent legal authority as Commander-in-Chief he needed to respond militarily. FDR could have simply accepted Germany and Italy's formal declaration of war in 1941 but he too wanted the Congress on record given the magnitude of the commitment. Ditto Bush. A wise political move in both instances.

Overall there is an inconsistency in your argument Dan which is namely: you accept the current expanded state of legislative authority built upon the intellectually ridiculous broad readings of the elastic and commerce clauses and the tacit judicial neutering of the 9th, 10th and now 5th and 1st amendments. Yet you interpret executive authority as subordinate to the legislative power and existing only within the narrow, literal confines of Article II.

How is one part of the Constitution's text flexible in its meaning and parameters and another not ? By what mechanism is that selectivity accomplished ?
"Sounds like separation of powers to me."

No one in this debate is arguing different. The question is not whether or not power is a separated in our system of government, but how it is separated. Indeed, your quotation from Adams is a better warrant for my argument: Adams argues for bicameralism on the grounds that it weakens the legislative power and better equalizes the position of the executive and legislative branches. Thus, the legislative and executive powers are not co-equal. QED.

Besides, quoting Adams in 1776 is not very good evidence concerning the design of the Philadelphian System of 1789.

"The legislative power naturally seeks to control the exercise of the excutive function but when they attempt to invade the executive's ennumerated powers they usually overreach."

Since we're debating the scope of the executive's enumerated powers, I don't see your point.

The rest of the paragraph assumes the predicate: that the President's war powers extend to domestic surveillance--potentially involving US citizens--that contravenes both 4th amendment and legislative proscription. In this light, you still haven't answered my reduction-to-the-absurd counter, which I think demonstrates what you're really arguing (which is, in essence, what the Bush administration argues): that once the US is in a state of war the President can do whatever he damn well pleases, regardless of legislative, constitutional, or international law. This position contravenes everything we know about the explicit structure of the constitution and the intent of the framers. In this case, we're not even talking about "illegal combatants" and "torture" as applied to non-US citizens: we're talking about search and seizure within the United States and on, potentially, US citizens.

Mark, you're going to have to be more specific on the various things you think I accept about contemporary constitutional doctrine. Yes, I agree with expansive readings of the commerce clause and the general welfare clause. But not every change in constitutional interpretation is equivalent; it depends on the warrants. If you want to make an argument that certain features of the contemporary world justify novel understandings of executive power, go ahead and so so. Indeed, better to bring those arguments into the light of day.
Hi Dan,

Well, we are soon reaching the point where only a major post laying out Constitutional history and theory is going to suffice for our purposes. Unfortunately, a project of that magnitude is going to have to be put on the backburner.

In the interim:

1. Re; Your reductio example. I didn't address it because any President mad enough to do as you suggested hardly needs an AUMF as a pretext. Nor could any AUMF justify such a brutal in the eyes of the American people, regardless of the wording ( and if in fact, the U.S. Congress really was filled with al Qaida operatives, we'd have more problems than just a Presidential coup d'etat)

I read the AUMF as Congress wrote it. If they meant something else it is not at all clear to me.

2. I'm still curious as to how you know when and where to take laws and Constitutional clauses seriously or let them be subject to salutory neglect. Or to interpret them narrowly or broadly.

3. The point of the Adams example was to demonstrate that the understanding of separation of powers preceded the time of the Constitutional Convention and was not invented after the fact. The Legislature having been given *more* ennumerated powers does not imply that they can control or regulate the ennumerated powers of other branches or that their powers automatically supercede them in case of conflict. The power to decide on war or peace is *rigidly* and *purposefully* divided from the power of command once hostlities commence.

Hence the term - " separation"
If we relate this discussion to 4GW, then the administration biggest blunder was losing trust. If it actually was the people who were running the program that released this information, he lost the trust of the people who were running the program. Now, after the society thought the question of gathering information from citizens inside the USA was resolved, by the presidents own words, we find out he didn't think FISA nor the patriot act was enough. Because trust is such an implicit concept, the lost of trust, no matter how small, must be avoided.

In a way, China's censorship of the web is the correct procedure on ant-4GW. China maintained its trust with its people by "acting" Chinese, whatever that means. While China created a potential for conflict with world opinion, if your fighting against a 4GW, it is the trust to its people that is important. China's enemies already potentially want to destroy the government of China and trust China to act like China. If China had covered-up the fact that it was censoring the web, the cover-up would have created a potential for conflict between its people, which is what China's enemies would use to manipulate, in a 4GW way, the society of China against its own government.

The question of if he needed this program is now lost, as it should be if he is still using it. It has now come down to if he had the power to do what he did, not if he did the correct thing that would make us safer. As long as what he did is still relevant (we only have the presidents word that it still is)to the task at hand, the question of, if we were served well by him, will never be answered.
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