Presidential powers (1)

This column gives a pretty decent sketch of the Constitutional issues involved with Bush's illegal spying-on-Americans program in "accessible" language (i.e., not legal gobbledygook): Bush may be in "zone of twilight" by John Aloysius Farrell Denver Post 01/28/06

John Dean puts it better, though inn George W. Bush as the New Richard M. Nixon: Both Wiretapped Illegally, and Impeachably; Both Claimed That a President May Violate Congress' Laws to Protect National Security Findlaw.com 12/30/05.

One bit of legalese that is unavoidable in this discussion, though, is the "unitary executive theory".  This is a far-right theory of fairly recent origin which has been embraced by the Bush-Cheney administration that argues the President has the power to ignore any law and any provision of the Constitution that he chooses in order to protect national security.  It's not exaggerating to say that this is a prescription for an elective dictatorship.  And it has no basis in Constitutional law, though its advocates point to precedents in individual actions.

Elizabeth de la Vega, a former federal prosecutor, recently wrote (Does the President Really Know Best? TomDispatch.com 01/17/06):

OK, everyone who has studied the Unitary Executive Theory of the Presidency, raise your hand. Anyone? Anyone?

If you are not raising your hand, you're not alone. As regular readers of Tomdispatch are aware, only recently has the world received notice that President Bush's "I can do anything I want" approach to governance has a name: the Unitary Executive Theory of the Presidency. Not having heard of this concept, and thinking perhaps that I had missed something in Constitutional Law, I decided to survey a random sampling of attorneys about it. The group included  civil practitioners, prosecutors, a federal judge, a former federal prosecutor who has a PhD as well as a J.D., defense attorneys, and a U.S. magistrate. The precise question was, "When did you first hear about the Unitary Executive Theory of the Presidency?" Most said, "The past few weeks," but my favorite was, "A few seconds ago, when you asked about it." All agreed that the term does not appear in the U.S. Constitution and that, the last time they checked, we still had three branches of government.

Al Gore gives an excellent description of this theory ("America's Constitution is in grave danger" Salon 01/17/06):

This legal theory, which its proponents call the theory of the unitary executive but which is more accurately described as the unilateral executive, threatens to expand the president's powers until the contours of the constitution that the Framers actually gave us become obliterated beyond all recognition. Under this theory, the President's authority when acting as Commander-in-Chief or when making foreign policy cannot be reviewed by the judiciary or checked by Congress. President Bush has pushed the implications of this idea to its maximum by continually stressing his role as Commander-in-Chief, invoking it has frequently as he can, conflating it with his other roles, domestic and foreign. When added to the idea that we have entered a perpetual state of war, the implications of this theory stretch quite literally as far into the future as we can imagine.

This effort to rework America's carefully balanced constitutional design into a lopsided structure dominated by an all powerful Executive Branch with a subservient Congress and judiciary is-ironically-accompanied by an effort by the same administration to rework America's foreign policy from one that is based primarily on U.S. moral authority into one that is based on a misguided and self-defeating effort to establish dominance in the world.

The common denominator seems to be based on an instinct to intimidate and control. (my emphasis)

Bush has chosen the illegal NSA spying as the issue on which to try to establish this principle. His stance on this was anticipated by Dick Cheney hardline stand to keep the composition and deliberations of his notorious energy advisory group secret.  John Dean has described that case at some length in his book Worse Than Watergate.

In the NSA spying case, Bush is actually coupling his unilateral executive theory with the argument that Congress, by its October 2001 authorization to go after Al Qaeda (Use of Force Act of September 18, 2001, to be more exact) gave Bush statutory authority to ignore the FISA law, which requires warrants for the wiretapping that Bush has ordered done without warrants.

Back in April of 2002, before the invasion of Iraq and before the illegal NSA domestic spying came to (partial) light, the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights held hearings on the topic, "Applying the War Powers Resolution to the War on Terrorism." Among other things, the constitutional law experts invited to testify looked at the Use of Military Force Act and what it implied for Presidential powers.  The War Powers Resolution referred to in the hearing title is that of 1973, which remains in force.

I won't try to walk through each set of arguments here.  I'll just mention the contributors with brief quotes from their testimony.

John Yoo, at that time Deputy Assistant Attorney General in the Justice Department's Office of Legal Counsel, also known now as Torture Yoo for his role in facilitating the Bush torture policy, is an advocate of the unilateral executive theory.  Yoo's testimony at the Committee Web site is in all caps.  He laws out the theory here:

UNDER ARTICLE II, SECTION 1 OF THE CONSTITUTION, THE PRESIDENT IS THE LOCUS OF THE ENTIRE “EXECUTIVE POWER” OF THE UNITED STATES AND, THUS, IN THE SUPREME COURT’S WORDS, “THE SOLE ORGAN OF THE FEDERAL GOVERNMENT IN THE FIELD OF INTERNATIONAL RELATIONS.” UNDER ARTICLE II, SECTION 2, HE IS THE “COMMANDER IN CHIEF” OF THE ARMED FORCES OF THE UNITED STATES. THESE TWO PROVISIONS MAKE CLEAR THAT THE PRESIDENT HAS THE CONSTITUTIONAL AUTHORITY TO INTRODUCE U.S. ARMED FORCES INTO HOSTILITIES WHEN APPROPRIATE, WITH OR WITHOUT SPECIFIC CONGRESSIONAL AUTHORIZATION.

NOTABLY, NOTHING IN THE TEXT OF THE CONSTITUTION REQUIRES THE ADVICE AND CONSENT OF THE SENATE, OR THE AUTHORIZATION OF CONGRESS, BEFORE THE PRESIDENT MAY EXERCISE THE EXECUTIVE POWER AND HIS AUTHORITY AS COMMANDER IN CHIEF. BY CONTRAST, ARTICLE II REQUIRES THE PRESIDENT TO SEEK THE ADVICE AND CONSENT OF SENATE BEFORE ENTERING INTO TREATIES OR APPOINTING AMBASSADORS. ARTICLE I, SECTION 10 DENIES STATES THE POWER TO “ENGAGE” IN WAR, EXCEPT WITH CONGRESSIONAL AUTHORIZATION OR IN CASE OF ACTUAL INVASION OR IMMINENT DANGER. ARTICLE III DESCRIBES THE OFFENSE OF TREASON AS THE ACT OF LEVYING WAR AGAINST THE UNITED STATES. MOREOVER, FOUNDING DOCUMENTS PRIOR TO THE U.S. CONSTITUTION, SUCH AS THE SOUTH CAROLINA CONSTITUTION OF 1778, EXPRESSLY PROHIBITED THE EXECUTIVE FROM COMMENCING WAR OR CONCLUDING PEACE WITHOUT LEGISLATIVE APPROVAL. THE FOUNDERS OF THE CONSTITUTION THUS KNEW HOW TO CONSTRAIN THE PRESIDENT’S POWER TO EXERCISE HIS AUTHORITY AS COMMANDER IN CHIEF TO ENGAGE U.S. ARMED FORCES IN HOSTILITIES, AND DECIDED NOT TO DO SO.

OF COURSE, AS THE PRESIDENT HAS THE CONSTITUTIONAL AUTHORITY TO ENGAGE U.S. ARMED FORCES IN HOSTILITIES, CONGRESS HAS A BROAD RANGE OF WAR POWERS AS WELL. CONGRESS HAS THE POWER TO TAX AND TO SPEND. CONGRESS HAS THE POWER TO RAISE AND SUPPORT ARMIES AND TO PROVIDE AND MAINTAIN A NAVY. AND CONGRESS HAS THE POWER TO CALL FORTH THE MILITIA, AND TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE ARMED FORCES. IN OTHER WORDS, ALTHOUGH THE PRESIDENT HAS THE POWER OF THE SWORD, CONGRESS HAS THE POWER OF THE PURSE. AS JAMES MADISON EXPLAINED DURING THE CRITICAL CONSTITUTIONAL RATIFYING CONVENTION OF VIRGINIA, “THE SWORD IS IN THE HANDS OF THE BRITISH KING; THE PURSE IN THE HANDS OF THE PARLIAMENT. IT IS SO IN AMERICA, AS FAR AS ANY ANALOGY CAN EXIST.” THE PRESIDENT IS COMMANDER IN CHIEF, BUT HE COMMANDS ONLY THOSE MILITARY FORCES WHICH CONGRESS HAS PROVIDED.

To put the argument a bit more briefly, Yoo is saying here that the President can go to war any time he wants against any enemy he chooses.  If Congress doesn't like it, they can cut off the funds for it. Yoo goes on to argue that Congress' Constitutional power to "declare" war is nothing more than the power to formally declare that a state of war exists.  Apparently in Yoo's theory, a Congressional declaration of war  has no more legal or Constitutional significance than a resolution to honor Red Skelton for having been an entertaining comedian back in the day.

(Continued in the next post)