Imbalance of Power Posted by Spencer Boyer

Spencer P. Boyer

Season's greetings.  Suzanne Nossel asked me to be a guest contributor while she is in South Africa. By way of background, I am a Fellow to the Security and Peace Initiative of the Center for American Progress and The Century Foundation.

President Bush defends his program of warrantless surveillance of Americans, in violation of the Foreign Intelligence Surveillance Act, by pointing to a 2001 congressional resolution authorizing him to use all necessary force against those responsible for the attacks of September 11, 2001. He also makes the case that, as Commander in Chief in a time of war, he has the power do whatever he sees fit, regardless of legal prohibitions, when he believes it is in the national interest to do so. Unfortunately, his actions are indefensible.

To start with, there is no ambiguity when it comes to FISA. Congress made it clear when it enacted the law in 1978 that the President must have a judicial warrant to eavesdrop on Americans. Congress clearly rejected the idea of inherent Presidential authority to conduct warrantless wiretaps in the U.S. and made such actions by the executive branch a crime.

The administration cites Congress’s 2001 use-of-force statute, which authorized the President 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 giving him the authority to conduct these warrantless searches on Americans. Attorney General Alberto Gonzales attempted to bolster this point by stating that domestic surveillance by the National Security Agency only occurs where there is a reasonable basis to conclude that one of the parties of the communication is a member of al Qaeda or otherwise affiliated. The administration’s points do not, however, make the domestic spying program any more legal.

As a general matter, a declaration of war, which we have not had since World War II, arguably triggers a range of common law-of-war authorities in addition to standby statutes keyed to “declared war,” “war,” or “time of war.” Use-of-force statutes, on the other hand, have less of a domino effect and do not trigger certain standby authorities, such as the power under the Alien Enemy Act to detain alien enemies, keyed to a declaration of war. But nothing in the 2001 congressional authorization, which was specific in its language, gives the President power to ignore the clear statutory prohibitions in FISA. FISA does allow the Attorney General to use warrantless wiretaps for fifteen days after a declaration of war. But even if the 2001 authorization was a declaration of war, which it was not, the surveillance would have been authorized for only that short period of time. 

In addition, in a Washington Post Op-ed on Friday, former Senate Majority Leader Tom Daschle rejects the notion that Congress intended the 2001 authorization to exempt the President from FISA. Senator Daschle, who helped negotiate the authorization, states that the administration tried, and failed, to insert language allowing for expansive Presidential powers in the U.S.  Thus, there can be no illusion concerning Congress’s intent.

This administration’s penchant for increasing executive power in the name of national security – denying prisoners access to lawyers or courts, indefinitely detaining individuals as enemy combatants, rejecting the applicability of the Geneva Conventions – continues to trample on civil liberties. If we are to accept President Bush’s claim, he could ignore any clear law he disagrees with during our war on terrorism, which could last for decades. The Constitution requires the President to take care that all laws are faithfully executed, not just the ones he likes. The Framers of our Constitution guarded against an abuse of power by the President by embedding governmental powers in a system of checks and balances. It is time for Congress and the courts to re-establish the equilibrium.

Comments

[Cal]

Merry Christmas Spencer, and all at DA.

"It would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights…. [C]onfidence is everywhere the parent of despotism; free government is founded in jealousy and not in confidence; it is jealousy, and not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power; that our Constitution has accordingly fixed the limits to which, and no farther, our confidence may go.... In questions of power, then, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution."

-- Thomas Jefferson, draft of the Kentucky Resolutions

[Fred Hapgood]

I feel very deeply conflicted about this. Almost every day, at some point during the day, I imagine something terrible happening to New York City (I don't live there physically but I do culturally) and I mourn. Ask yourself -- what do you think the odds are that an American city will be destroyed over the next 15 years? Take a minute. Think. Come up with a number. One in fifty? One in a hundred? One in two hundred? How many people would die in such an event? A million? Two? Have we already endured 100,000 casualties, statistically speaking?

Of course strengthening the hand of the government -- which I freely stipulate can be measured at the cost of our liberties -- will not drive those odds to zero, but it is very hard to contemplate the immense disasters that threaten us and not want to do everything possible to push those odds down, no matter how painful the sacrifices in question.

This problem is just going to get worse and worse. At some point in time the average high school science club will be able to make a thermonuclear device, and I fear that many of us will live to see that day. How much longer we will live than that is a harder question.

[J Thomas]

Fred, excellent high school science clubs can already design a small crude thermonuclear device that would sort of work. And have for years.

However, they don't have access to weapons-grade materials, or materials for shaped charges, or neutron reflectors,etc.

Most of them lack the tools to machine all that stuff, including machining toxic weapons-grade fuel.

But I have to admit that high school science clubs would be more dangerous than terrorists, given the chance. There are high school students who'd jump at the chance to nuke the schools that they have football rivalries with.

Don't get too fixated on nukes. Nukes are a very expensive way to destroy things. Look at New Orleans. And look at the problems we had trying to evacuate texas cities before Rita. Now, suppose that in some nonnuclear event one of our cities lost its water works. How quick an evacuation do you think we'd need? And there are lots of more extreme ways for things to break down.

We could lose 5 or 10 cities in 15 years, without a nuke fired at all. And if we do get a city nuked it's more likely to be from a government. They might pretend it was terrorists to manipulate US policy. And would you trust the US government not to go along with it, if it's policy they'd like? Responding to a covert attack by another government would take a great big change. We couldn't very well invade them without pulling out of iraq and refurbishing first, and it would be as likely from a nation that's superficially an ally as not....

Look -- if we give up being americans because terrorists are holding our cities hostage, then the terrorists have won. Don't go there.

Try a different angle -- the terrorists have gone after us -- once -- (or maybe twice, whatever happened about those anthrax attacks? We invaded two countries so far for 9/11 but for anthrax we haven't even made an arrest) -- because of our foreign policy. If we have to sacrifice something, why should it be our national culture and form of government instead of our foreign policy?

What if the terrorists take over the whole arab world? Then they'll be a government. We're good at dealing with hostile governments, we've been very successful at it. We ran the whole Cold War without giving up being americans. Why should a few thousand terrorists scare us more than the whole USSR/red-china/international-communist menace did?

We can be americans and survive as a nation. We don't need to go the dictator/secret-police route. Back when we were fighting the russians we were tempted to turn into a totalitarian state, to copy them. But copying the russians didn't work, and we mostly resisted the temptation. Now we're fighting iraq and we want to copy *them*? It didn't work for Saddam and it didn't work for iraq. Why would it work better for Bush and for america?

Pull up your socks.

[Jeff Younger]

Mr.Boyer, I think you are wrong.

The locus does fall squarely into two key issues: (1) the national imperative and practical requirements of intelligence gathering, and (2) the juridical question of law-breaking. Since I maintain that the acts were legitimate in themselves, I will argue by counterplea.

I’m going to summarize your argument, to ensure that I’m not going at a straw man. You begin with a statement of facts: (1) a summary of the Administration’s argument, and (2) the essential legal features of the 1978 Foreign Intelligence Surveillance Act. All of which I stipulate. Next you make three arguments from these facts: (1) The authorization of force does not legalize violations of the Foreign Intelligence Surveillance Act, (2) you present Daschle’s letter vs. spirit of the laws argument, (3) you appeal to a Common Quality of increasing tyrannical intent by the Administration, in violation of the duties of the President established by the US Constitution.

Mr. Boyer incorrectly characterizes the larger political situation as “this administration’s penchant for increasing executive power in the name of national security.” The Congressional Research Service report "National Emergency Powers" states

The development, exercise, and regulation of emergency powers, from the days of the Continental Congress to the present, reflect at least one highly discernable trend: those authorities available to the executive in time of national crisis or exigency have, since the time of the Lincoln Administration, come to be increasingly rooted in statutory law. The discretion available to a Civil War President in his exercise of emergency power has been harnessed, to a considerable extent, in the contemporary period. Furthermore, due to greater reliance upon statutory expression, the range of this authority has come to be more circumscribed, and the options for its use have come to be regulated procedurally through the National Emergencies Act.

Since the 1970's the Legislature has tried to constrain the powers of the President. For example, every President since Nixon, including Carter and Clinton, has opposed the War Powers Act us an unconstitutional constraint on the Executive.

Liberals seem to forget that the Executive is a co-equal branch of government, with specified and implied powers to be exercised solely at the discretion of the President. Just as the President has no power to prevent a vote in the Senate, so the Congress has no power to stop the Executive from using his constitutional power to exercise sole discretion in regard to foreign threats and emergencies. Courts have consistently, almost without exception, upheld this principle. See the DOJ letter sent to the Congress for a list of cases.

The power to conduct warrantless searches and wiretaps against foreign threats has been strongly upheld by the courts.

Mr. Boyer is entirely wrong to conclude that the "the administration’s points do not, however, make the domestic spying program any more legal." The congressional Authorization for the Use of Military Force, 18SEP2001 reads

The President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.

Even a basic civic course teaches that new law supersedes old law. Moreover, it seems that Daschle's letter vs. spirit of the laws argument could never overcome this admission. If the Constitution provides this power to the President, as the authorization admits, then the President is not drawing on statutory authority at all, and the President's power in this matter is not subject to congressional restraint outside the enumerated powers of the Legislature.

Some argue that we are more likely to be attacked with WMD by a state, and so we misplace our preoccupation with terrorist WMD. But this is wrong for two reasons. First, nation-states are subject to WMD deterrence, whereas terrorists are not because they have no territory to protect and hide within the very societies they attack. Second, every nation-state with nuclear weapons has pledged not to use them, while terrorist groups have pledged to use them. If terrorists had WMD, they would use them. By now they've earned the right to be taken seriously.

Some think we risk losing our national culture or our form of government, but this preposterous on its face. Almost every president since Jefferson has exercised the constitutional authority to gather intelligence and use force against foreign threats without congressional approval.. The President's latest exercise of this authority, far from altering our national culture, is our national culture. It has been so from the very beginning of the Republic.

Some think that we should alter our foreign policy to accommodate the terrorists. This goes far beyond being preposterous and becomes genuinely stupid. War is the use of force to coerce the enemy into a course of action or out of existence. If anything is a victory for our enemies, it must be doing their will by altering our foreign policy. US foreign policy aims to protect US vital national interests. Allowing terrorists to coerce us into altering it is tantamount weakening at least some vital national interests. Moreover, the terrorists openly state that they want to alter US foreign policy in order to better attack us. Assisting a foreign power in attacking one's own country is nothing but stupid.

Some have noted that we did not turn into a police-state during the Cold War. This is certainly true, but the President had the same powers of warrantless wiretap and spying during the Cold War. So, merely preserving that same power now won’t make us a police-state now — which undercuts the liberal argument altogether.

[J Thomas]

"If we are to accept President Bush’s claim, he could ignore any clear law he disagrees with during our war on terrorism, which could last for decades."

This is the key sentence.

Regardless what the law is, the law ought to prevent the administration from spying on US citizens unless there is evidence that they are criminals -- evidence that will convince a judge.

It looks like it will probably be at least 50 years before people stop doing terrorism, and stopping it will depend on technology that hasn't been invented yet. There's no winning, all we can do is learn to live with it. Giving away our civil rights for the indefinite future becasuse we're scared of hypothetical future terrorists is no good.

In the short run, I'd settle for Congress getting access to the records on everybody who's been spied on, from the lower-level guys who were doing the work. If there are no journalists or Democrats on the list except those with direct connections to known terrorists, I'll politely apologise and accept continuing surveillance under supervision by Congress and the courts. If there are, it's impeachment time.

[Dan Kervick]

The Constitutional law in the area of warrantless wiretaps has been unsettled. Whether the President had the legal and the Constitutional power during the Cold War to order warrantless wiretaps is a disputed question; but there is no doubt that the executive branch possessed for periods of time during the Cold War the actual power to order such wiretaps, and get away with it.

Still, I believe that the sorts of powers Bush is asserting do not have a Cold War precedent. During the Cold War, the exective branch wanted to tap the communications of Americans that it suspected of involvement in national security threats, however tenuous or politically motivated the suspicions might have been in particular cases. But if I understand him correctly, Bush is asserting the right to engage in broad fishing expeditions that involve tapping the overseas communications of Americans for whom there is not the slightest prior inkling of involvement in terrorism or related activities. I also believe the administration itself is claiming that this "new kind of war" requires the use of intelligence techniques that go beyond what was required during the Cold War.

I would have thought most, though not all, scholars were agreed that the office of the Presidency has grown in both size and real power during the 20th century. Certainly conservatives railed for decades against the growing power of the office under Roosevelt, Kennedy and Johnson - and even Clinton, particularly in the area of domestic law enforcement. But then again, Democrats complained about the abuses of executive power under Nixon and Reagan. The political parties really have had no consistent position on this phenomenon. The presidency has grown stronger all along, but the complaints have usually come only from the party that was out of the White House.

Personally, I believe the scope of the President's war powers have been perverted and enlarged beyond their intended scope almost from the beginning of the Republic. Matters about which the Constitution is silent have been used as pretexts for the assertion of all sorts of common law war powers of which I suspect the majority of the founders would have disapproved, and seen as the dangerous relic traditions of despotic governments of the past - including that of George III. In my view, US history is a history of seizures of ungranted powers by the executive branch in times of crisis, seizures which have been ratified and fixed over time by custom and the acquiescence of the other branches.

Some think that we should alter our foreign policy to accommodate the terrorists. This goes far beyond being preposterous and becomes genuinely stupid. War is the use of force to coerce the enemy into a course of action or out of existence. If anything is a victory for our enemies, it must be doing their will by altering our foreign policy. US foreign policy aims to protect US vital national interests. Allowing terrorists to coerce us into altering it is tantamount weakening at least some vital national interests. Moreover, the terrorists openly state that they want to alter US foreign policy in order to better attack us. Assisting a foreign power in attacking one's own country is nothing but stupid.

Our foreign policies are constantly under revision, and change weekly, if not daily. Every time a policy changes, there is probably some adversary, or potential adversary, who is glad about the change. There may be at the same times some other adversary who is unhappy about the change. We cannot manage foreign policy rationally by following a blanket rule of "never change a policy where that change is sought by some adversary." Such a rule would lead to damaging inflexibility, and even paralysis.

Of course, one runs a risk in changing policies that may be seen as, or actually be in part, a response to pressures exerted by adversaries, since the change may send the message that pressure works. But it can be equally risky to persist in some wrongheaded policy for years simply because one is unwilling to be seen as satisfying the desires of one's adversaries. Foreign and national security policies are complex, practical balancing acts that require an analysis of many risks and opportunities.

[Kate]

Maybe it's offtopic, but i just wanted to say, that it's really interesting to read everything this with the comments... You discuss here a lot of interesting things on different useful themes. Thanks for that =)

[Jeff Younger]

Dan, as usual, you present the strongest, most thoughtful arguments for the liberal position.

As I read it, you made three significant points: (1) the Bush administration has gone beyond Cold War practices of targeted warrantless eavesdropping to unjustified "fishing expeditions;" (2) US history shows the Executive powers being "perverted and enlarged beyond their intended scope;" (3) "We cannot manage foreign policy rationally by following a blanket rule of 'never change a policy where that change is sought by some adversary.' Such a rule would lead to damaging inflexibility, and even paralysis." I'll take the points in reverse order with an eye toward defending my counterplea.

I completely agree with your third point, but I would go even further. Politics is a practical science. Diplomacy is a prudential discipline, and no rule whatsoever can be laid down for the creation of political policies. The desire to craft such rules, I believe, traces back to Kant's "Perpetual Peace: A Philosophical Essay." Robert Kagan has argued that America and Europe inhabit different worlds.

Europe is turning away from power, or to put it a little differently, it is moving beyond power into a self-contained world of laws and rules and transnational negotiation and cooperation. It is entering a post-historical paradise of peace and relative prosperity, the realization of Kant’s “Perpetual Peace.” The United States, meanwhile, remains mired in history, exercising power in the anarchic Hobbesian world where international laws and rules are unreliable and where true security and the defense and promotion of a liberal order still depend on the possession and use of military might. That is why on major strategic and international questions today, Americans are from Mars and Europeans are from Venus: They agree on little and understand one another less and less. And this state of affairs is not transitory — the product of one American election or one catastrophic event. The reasons for the transatlantic divide are deep, long in development, and likely to endure. When it comes to setting national priorities, determining threats, defining challenges, and fashioning and implementing foreign and defense policies, the United States and Europe have parted ways.

Liberals strike me as American Europeans.

I agree we shouldn’t adopt the rule "never change a policy where that change is sought by some adversary," but we must also reject the European rule "always change a policy where that change is sought by some adversary (except the US)." I argue that in the particular case of our terrorist enemies, we have no rational reason to appease their demands because acquiescence endangers American vital interests. I'm certainly not laying down rules. I'm not even searching for rules, since there can be none. Prudence requires us to reject the terrorist demands for the US to exit all "Muslim lands," cease political support for Israel, submit to a dhimmi, pay a tax to Muslim nations for the privilege of living unconquered, etc. Osama bin Laden named his umbrella organization, of which al Qaeda was only a part, International Islamic Front for the Jihad Against Jews and Crusader. That nicely encapsulates the intent of Islamist terrorists, and makes quite clear why we cannot appease their demands.

On the subject of executive power, it seems to me that Congress grew unchecked in the 20th century. A sequence of Progressive administrations gave rise to the whole edifice of the modern administrative state we see today. Few consider that the federal agency system did not exist as late as 1940.

What's wrong with the federal agency system? It is grossly unconstitutional. FDR wanted the agencies to have Executive, Legislative and Judicial authority all in one organization — and that is what he created. Consider the IRS. They have their own law enforcement officers, who can charge you in IRS courts where you cannot receive a jury trial (!), under regulations (laws) that they themselves have written. They have all three government powers in one body. Consider the EPA, they too have their own law enforcement officers, who can charge you under regulations (laws) they themselves have written, but the EPA doesn’t even have a court system…your just guilty. The agency system created by Progressives is a massive, unconstitutional threat to liberty in this country. The imperial congress is to be greatly feared because they regulate almost every aspect of our lives, deny us a trial by jury, engage in ex post facto punishments, and exempt themselves from the very laws they impose on us.

Lastly, the Administration, as I understand it, is engaged in targeted surveillance. Dan, what is the evidence for "fishing expeditions?"

[Dan Kervick]

Lastly, the Administration, as I understand it, is engaged in targeted surveillance. Dan, what is the evidence for "fishing expeditions?"

Jeff, several informed commentators and intelligence experts have opined over the past couple of weeks that the Bush administration is engaged in large scale "data mining". That is, they are in effect scanning all overseas calls and emails originating inside the United States, with the aim of identifying candidates for more targetted surveillance, based perhaps on certain combinations of keywords that come up in the conversation.

If this is indeed what is happening, then people are having their communications tapped in the first instance with no prior indicators whatsoever of suspicious activities - even tenuous or vague indicators. And their being subject to a second round of surveillance may be based on nothing more than the fact that they were overheard using words like "Osama", "explosive" and "plane" in the same conversation.

Now maybe this a level of government surveillance we should be willing to accept. But I do believe it goes beyond the kinds of domestic surveillance of US citizens that were conducted during the Clod War.

[J Thomas]

"That is, they are in effect scanning all overseas calls and emails originating inside the United States, with the aim of identifying candidates for more targetted surveillance, based perhaps on certain combinations of keywords that come up in the conversation."

There is a widespread claim that they are also looking at a whole lot of entirely domestic message traffic. I don't know whether that's true, I only hear about some of the leaks.

Doing that would make some sense tactically -- a terrorist organisation that had a lot of people inside the USA would reasonably be doing more traffic that's entirely domestic than it would be communicating with europe. And doing that would make tremendous sense politically, since it could provide knowledge about the intentions of political enemies, and it could provide blackmail material about friends and enemies both. But this is precisely what Nixon was doing -- he argued that it was necessary to spy on Democrats because they were influenced by communists, but that argument was not really acceptable.

If the administration is only spying on citizens after it has real evidence that they're terrorists, then the spying isn't wrong. In that case the only problem is that they're doing it with no oversight by anybody else. And of course it's the fact that they have no oversight that makes the leaks seem particularly believable. When they won't let anybody see what they're doing, why would we trust them more than the terrorists?

And it's pretty damning that Bush argues he has the right to do anything he wants. That sounds like a pretty big presidential usurpation to me. It's hard to see how he could usurp more than that.

Jeff's points are as usual not plausible. How he goes from federal agencies that are part of the Administration under the President's authority, to increased power of Congress is at best unobvious.