Wednesday, December 21, 2005
By Steven L. Taylor

One of the things that raises red flags in my mind (I probably should get that checked) is when a person of authority asserts a debatable power in a way that is dubious on its face, or, at least, is extremely vague. One of the several things about this NSA/domestic surveillance business that has troubled me from the beginning is the assertion, both by the President and by Secretary of State Rice, that the policy was within the constitutional powers of the President of the United States.

This is the kind of argument that the general population might nod and accept, because, quite frankly, they don’t know what is in Article II of the US Constitution in regards to the powers of the president. However, in surveying the President’s constitutional powers in Article II (which are actually quite limited), I find it a stretch to suggest that one can easily encompass the NSA program under discussion as simply one of “constitutional authority”. Being commander-in-chief does not mean unlimited authority if the President is acting for the purpose of national security policy. Further, the issue of “war time” powers is tricky. For one thing, we are not legally at war. While I am sympathetic to the general notion that we face a war in a certain sense of the word, we are clearly not engaged in an all-out war, such as we fought in WWII (as such, I share some of the concerns that Kevin Drum puts forth in this post). Depending on one’s definition of “war time” one could argue that we were “at war” during the Cold War–do we want to say in such situations the President should have extraordinary, extraconstitutional powers (i.e., for decades on end)? This strikes me as an exceedingly dangerous position to take. Given that the “war on terror” cold theoretically go on for many, many decades, are we content to simply cede power to presidents because we are “at war”?

I would note that in Orin Kerr’s attempt to detangle the legal issues, that he noted no specific Article II justifications for the President’s actions.

Recognizing that the Supreme Court has often given the President leeway in the pursuance of national security policy does not translate into the notion that the President can do whatever he sees fit. The tenets of democratic and limited government certainly should dictate otherwise. As George Will noted yesterday:

Particularly in time of war or the threat of it, government needs concentrated decisiveness — a capacity for swift and nimble action that legislatures normally cannot manage. But the inescapable corollary of this need is the danger of arbitrary power.

Along the lines of arguing that the President acted under the authority of the Constitution comes this column from yesterday’s WaPo by Bill Kristol and Gary Schmitt, Vital Presidential Power, wherein they make a number of credulous arguments about the constitutional basis of Presidential power to engage in domestic surveillance if he wants to. (And as a side note, I have a hard time seeing them making the same arguments if President Kerry was the subject of the discussion).

They premise the discussion on what strikes me as a vague and dubious notion:

It is not easy to answer the question whether the president, acting in this gray area, is “breaking the law.” It is not easy because the Founders intended the executive to have — believed the executive needed to have — some powers in the national security area that were extralegal but constitutional.

I don’t recall that argument being prominent in the Federalist Papers. How can something be “extralegal” (i.e., outside the law) yet “constitutional” (the very foundation of our laws). This strikes me as contradictory. If the argument is that in rare situations, the President may have to act in ways not governed by set law (like having to issue an order to shoot down commercial airliners who will not follow orders to land), then I can understand the argument. If, however, the idea is that for ongoing policy the President has the discretion to do whatever he sees fit for the security of the nation, I say that down that road leads the erosion of democracy and it is a road we need to scrupulously avoid following.

Further, why not ask for clarification under the law, if that was what the post-9/11 world required?

This statement from the column struck me as almost comedic:

A key reason the Articles of Confederation were dumped in favor of the Constitution in 1787 was because the new Constitution — our Constitution — created a unitary chief executive. That chief executive could, in times of war or emergency, act with the decisiveness, dispatch and, yes, secrecy, needed to protect the country and its citizens.

Yes, the lack of an adequate ability to make defense policy was part of the logic to do away with the Articles, but to somehow link this to the idea that the President should have expansive, undefined powers in the pursuance of national defense is patently absurd.

And this strikes me as a remarkable (to put it kindly) argument:

That is why the president uniquely swears an oath — prescribed in the Constitution — to preserve, protect and defend the Constitution. Implicit in that oath is the Founders’ recognition that, no matter how much we might wish it to be case, Congress cannot legislate for every contingency, and judges cannot supervise many national security decisions. This will be especially true in times of war.

First off, as Bret Marston and James Joyner have noted, the oath is not unique to the President.

Second, this argument seems to be saying that ultimately it is only the President (note the “uniquely”) who is the preotector of the Constitution, which gives him a set of undefined powers to protect it, even if it means possibly violating the Constitution. This sounds remarkably like the kind of argument often deployed in the Third World when militaries foment a coup for the express purpose of “protecting the Constitution”. I am not suggesting that Kristol and Schmitt are advocating dictatorship, but this strikes me as a tortured interpretation of the oath, and it places far too much power in the hands of one man–an interpretation that could very well lead to “breaking it to protect it” logic.

I still remain somewhat undecided on what actually happened, but am nonplussed at the degree to which it is assumed by many that everything is fine–it smacks of the “just trust him” arguments that many Miers’ defenders deployed. I must also admit to equal dismay over those who would call for impeachment after information from a handful of newspaper articles has been provided. To immediately jump to defend or to immediately assume gross misconduct strike me as wholly premature.

I will say that, per se, I am not scandalized by the idea that phone conversations originating outside the US, but received domestically, from known terrorists/terrorist suspects might be monitored. I am, however, concerned with the extent of such a program, and specifically as to whether there is sufficient oversight by appropriate authorities within the US government.

I am especially concerned by what appears to be a great willingness by many to eschew the hard discussions about liberty and legality that this situations raises and simply attribute the whole thing to the cause of security.

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    8 Responses to “Article II and Domestic Spying”

    1. KipEsquire Says:

      As the saying goes: The President is only Commander-in-Chief if Congress actually gives him an army to command.

      I’m also very disappointed that more isn’t being said about Youngstown v. Sawyer, the steel mill seizure case. The Supreme Court made it excruciatingly clear that the “Commander-in-Chief” Clause does not mean the President becomes a dictator in time of war.

      I’m very embarrassed by what I’ve seen from George Will, the Wall Street Journal other conservatives so far.

    2. eric Says:

      Well said.

    3. Dingto Says:

      “To immediately jump to defend or to immediately assume gross misconduct strike me as wholly premature….I am, however, concerned with the extent of such a program, and specifically as to whether there is sufficient oversight by appropriate authorities within the US government.”

      Ok, I think you are urging patience…But the problem is, how can the administration’s claims be investigated? Yesterday, Cheney indicated that he has been on a quest to consolidate power in the executive. One of the ways the Bush/Cheney administration has been doing this–even before the 9/11 attack–has been to resist ANY Congressional oversight over the executive.

      After 9/11 the administration has consistently developed a pattern of resisting ANY judicial oversight of the executive. This is why the domestic spying issue is so huge–it is the latest in a longstanding pattern of radically unilaterally reinterpreting the Constitution.

      Under the justification given by Bush and Cheney to pursue what he calls a “war on terror,” no law passed by Congress can tie the President’s hands.

      This is horribly troubling. It would not be unreasonable to assume, for instance, that if 2008 rolls around and Bush/Cheney claim that under the rubric of “protecting America from terrorism” that they would need to ignore other parts of the Constitution–say, the 22nd ammendment.

      This is why it is important to assert vigorous questioning of the Bush/Cheney motives. The assumption of “gross misconduct” is much more prudent than assuming benign benevolence–particularly given the documented missteps by the administration on such varied issues as interpreting intellegence, planning for the aftermath of the Iraq war, and preparing the nation for natrural and man-made disasters.

      The administration has very little credibility to provide them with the luxury of taking them at their word and assuming their general competence.

    4. Dr. Steven Taylor Says:


      I guess a simple response to your comment is to say that it seems to me that there is a middle ground to work towards before throwing the impeachment card on the table. More information is clearly needed and it needs to be obtained.

      I will say that I wouldn’t worry about the 22nd amendment being violated.


    5. Sean Hackbarth Says:

      Since no branch under the constitution, not even the judicial, is considered the sole arbiter of what the founding document means the extent and scope of each branch’s powers must be played out on the political stage. That is an important check and balance that has progressed through American history. Congress may have to power to pass a law limiting the executive branch, but they aren’t required to give it a blank check. (I think that is part of John Yoo’s argument.) In a similar manner the President can’t dictate to Congress what bills to work on or pass. He can only sign or veto them. Where the constitution isn’t very clear leaves room for governmental evolution.

      As for questions of liberty and security we can all agree that liberty can’t exist in an environment lacking in security. Has the President gone too far? Personally, I can’t tell. Other than extra searching before boarding an airplane I haven’t noticed a loss in my liberty. I can say what I want, travel where I want to, work in jobs that want to hire me. And since there hasn’t been another attack since Sep. 11, 2001, I have greater security. Despite the abuse and mismanagement that always occurs in any government enterprise I have to give credit to the government–all three branches.

    6. Dr. Steven Taylor Says:

      This is what I want–active involvement of all the branches. The thing that concerns me here is that it seems as if, on some issues, the executive is too willing to act on its own and that too many in the punditocracy are willing to allow such action under the color of “security.”

      As I noted–at the moment, I am less concerned over what might have been done than I am over how it appears it may have been accomplished.

    7. Fruits and Votes Says:

      “Wartime” President

      Only public debate and actual reform of the rules can be the proper means of coping with the allegedly transformed situation. Otherwise, we are at least implicitly acquiescing in a descent into an authoritarian “national security” state th…

    8. Political Bloviation » Blog Archive » PoliBlog: » Article II and Domestic Spying Says:

      [...] ngeles Times

      PoliBlog: » Article II and Domestic Spying

      PoliBlog: A Rough Draft of my Thoughts » Article II and Domestic Spying The PoliBlog has some interesting th [...]

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