Power tends to corrupt, and absolute power corrupts absolutely.
—Lord Acton
In the introduction, I mentioned President Bush landing a fighter plane on an aircraft carrier to announce military victory in Iraq. For me this scene symbolizes a vision of the presidency that presents a serious challenge to the official constitutional interpretation of presidential powers in the area of national security. For reasons I will explain later in this chapter, it is also the de facto constitutional view over a large range of governmental programs. I call it the National Security Presidency. It argues for the necessity of quick, decisive action to protect America from foreign enemies. Readers who have followed the newspaper headlines since 9/11/01 have a good idea of its basic outline. It claims that, as commander-in-chief of the armed forces, the president has a special constitutional duty to protect American lives and interests. Sometimes he can act in concert with Congress, but often he must act on his own authority either because there is no time for congressional deliberation or because he is acting on the basis of information that he cannot share with Congress. Sometimes the president must even disregard congressional laws and individual constitutional rights when they interfere with his national security responsibilities. When evaluating this vision of the presidency we should remember that quick, decisive, secret actions often prove to be wrong-headed, and they never have the same democratic legitimacy as decisions that are vetted by a more inclusive political process.
Whatever the merits of the National Security Presidency, it certainly was not the structure that the authors of the Constitution intended for the office of president. Even a cursory glance at the text of the United States Constitution (I set out the relevant provisions in the appendix) indicates that its authors intended Congress to be the senior branch of the national government. Not only are the powers of Congress given pride of place in Article I, but the text of that article dwarfs in size the provisions relating to the president in Article II and to the Judiciary in Article III. Even when we focus on provisions with “national security” relevance, the powers of Congress dominate. Congress has the power not only to declare war but also to punish “piracies and felonies committed on the high seas,” “raise and support armies,” “provide and maintain a navy,” and “provide for organizing, arming, and disciplining, the militia.” All these congressional powers are then expanded by the added grant to Congress of the power to “make all laws which shall be necessary and proper for carrying into execution” the other powers granted to any department of the national government.
In comparison, the powers of the president in the area of foreign affairs are both narrow and supportive. He is the “commander in chief of the army and navy of the United States and the militia,” but this meant he was to manage the wars Congress declared. It was understood that the president also could act to repel a sudden enemy attack before Congress had time to meet and act, and Article II authorized him to “make treaties, provided two thirds of the Senators present concur.” He also had the power to appoint cabinet officers like the secretary of state, subject to Senate confirmation. One presidential power, to “receive ambassadors and other public ministers,” sounded mostly ceremonial in nature, but it would grow in importance as the office of the presidency evolved. And finally, the president is given the power (and the duty) to “take care that the laws be faithfully executed,” that is, to administer the laws that Congress passes.
The National Security Presidency sees no substantive role for the Supreme Court to rein in its authority, but the text itself takes a different view. Article III gives the Court specific authority in cases with foreign affairs ramifications. Article III grants the Court jurisdiction over “all cases affecting ambassadors,” “all cases of admiralty jurisdiction,” and “controversies” between a “state, or the citizens thereof, and foreign states, citizens, or subjects.”
Of course, it would be naïve to expect that the institutional design created to govern a small former colony in the eighteenth century would adequately serve the needs of a growing nation. Constitutions must evolve with the history of the nation they are intended to guide, and often the constitutional text lags behind the new reality. The ideal way for these changes to take place is by means of the formal amendment process of Article V, but the process of Article V is so complicated that it has seldom been used for major constitutional changes.1 Instead, we have used the informal process of judicial amendment. The text remains the same, but the Supreme Court’s reading of it changes. For instance, as the economy became more national in scope, the power of the Congress to regulate interstate commerce waxed as that of the individual states waned. But this important constitutional change did not take place by means of a formal amendment of Congress’s power over interstate commerce in Article I; instead, the Supreme Court gave a more expansive reading to the old language.2
At other times evolution takes place by consensus; everybody agrees that a larger meaning should be read into the text. There can be no court case if no one disagrees. Article II grants to the president the authority to “receive ambassadors.” Although it sounds like only a ceremonial power, this power (combined with his authority over the federal bureaucracy) came to be seen as a grant to the president of the power to direct foreign policy short of war, subject to congressional opposition.
And sometimes presidents have gone beyond the powers granted them in the text. For instance, sometimes presidents have ordered the use of force without congressional authorization, although the lion’s share of these actions were (to quote conservative scholar John Yoo) “small actions to protect American property, citizens or honor abroad that had little risk of significant combat.”3 And usually there was tacit congressional approval for these actions, if not explicit authorization. There are, however, two historical examples in which a president has gone beyond this limited exercise of expanded power. The first involved Abraham Lincoln in the Civil War. After the South’s firing on Fort Sumter, Lincoln took several actions without consulting Congress that appeared beyond the power granted him by the text. He raised armies, secured credit, suspended the writ of habeas corpus, and blockaded southern ports.4 Lincoln claimed that all these acts were emergency powers granted him as commander-in-chief, even though the text refers to no such emergency powers. In his defense, Lincoln believed that the very life of the nation was at risk and that this emergency justified strong presidential action. Today few disagree with his decision. But we have to decide whether the same reasoning grants contemporary presidents similar powers today when they feel we are facing a national emergency. Most constitutional commentators do not think that the Civil War experience justifies the powers claimed by President Bush. We should remember that Lincoln was dealing with a problem—a civil war—that the text does not anticipate; the Constitution is silent on that issue. But President Bush was dealing with the problem of authorizing force against a foreign foe, a power that the text reserves to the Congress. So, too, Lincoln always made his actions public and asked Congress to ratify them while many of Bush’s most constitutionally controversial actions were hidden from Congress and the public.
Franklin Roosevelt also stretched the limits of presidential power in World War II. Roosevelt did not initiate combat on his own; World War II was the last war declared by Congress. But prior to Pearl Harbor he did enter into an executive agreement that enlisted American military might on the side of Great Britain against Nazi Germany in apparent defiance of congressional neutrality legislation. Pursuant to the agreement, we gave the British fifty destroyers in return for the use of British military bases in the Western hemisphere. The destroyers were intended to be used by the British in the war effort against Nazi Germany. Despite the apparent conflict with congressional law, Roosevelt signed the agreement on the basis of a legal opinion from his attorney general, Robert Jackson. Jackson argued that the president’s acts indeed were authorized by Congress. Critics both then and later have agreed that Jackson’s opinion disingenuously provided a legal mask for illegal presidential action.5 But Roosevelt’s allegedly improper actions were quite modest compared with the claims of President Bush.
The current official Constitution of independent presidential power is found in the 1952 Supreme Court case of Youngstown Sheet & Tube Co. v. Sawyer.6 The case involved President Truman’s seizure of privately owned steel mills to prevent a strike that he believed would hinder the American war effort in Korea. The steel companies resisted on the ground that the president had no authority to take such an action without congressional authorization. The court majority, in an opinion by Justice Black, ruled against the president because he only had the power to execute laws that Congress had passed and here Congress had not only not passed a law that authorized him to seize private property to avoid a strike but in fact had refused him that power. The president’s power to execute the law meant only the power to follow the rule prescribed by Congress; here Truman was ignoring a congressional law. The Black opinion also ruled that the president’s power as commander-in-chief of the armed services did not come into play since that power was limited to acts in a limited theater of war, not decisions affecting the whole economy. Therefore, Black categorically rejected Truman’s claim.
Usually the majority opinion in an important case constitutes the official Constitution, but sometimes later courts prefer to rely on a concurring opinion instead. That’s what has happened with regard to the Youngstown decision; later courts and scholars have passed over Black’s blunt rejection of autonomous presidential power on the grounds that it was too mechanistic. Instead, commentators7 and the Supreme Court itself have been more drawn to the concurring opinion in Youngstown of Justice Jackson. This was the same Robert Jackson who as attorney general had approved President Roosevelt’s expansive use of presidential powers during World War II. Jackson, like Black, held Truman’s act unconstitutional, but he saw the relationship between congressional and presidential power in more fluid terms. Jackson saw three situations with different constitutional ramifications. First, when the president acts with congressional authorization, his powers are at their zenith. And when he acts in opposition to the declared will of Congress, his powers are at their nadir. But Jackson posited a third possibility:
When the President acts in absence of either a congressional grant or denial of authority, he can only rely on his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
Perhaps because of its admired fluidity, Jackson’s “twilight zone” created an area of constitutional ambiguity that has allowed presidents to quietly expand their power. I will argue in chapter 6 that we would be better advised to return to Justice Black’s clear rejection of independent presidential power.
And, as the Youngstown decision itself illustrates in striking down Truman’s action, both Black and Jackson agreed that the Judiciary constituted a third partner in the constitutional scheme of separation of powers. When there is a dispute about the relative powers of the two political branches, it is up to the judicial branch to determine what the Constitution requires. Jackson joined Black in ruling that Truman’s actions were in defiance of the clearly expressed will of Congress and, therefore, were unconstitutional.
But while both the Black and the Jackson opinions in Youngstown were speaking of presidential power in terms of constitutional checks and balances, American presidents from Truman on were beginning to operate according to a different model altogether. Historian Arthur Schlesinger Jr. uses the term “imperial presidency” to describe a vision of presidential power over foreign affairs practiced by all the presidents from the Truman through the Nixon administrations, an era when presidents routinely authorized offensive military operations without the consent, or even knowledge, of Congress or the people. The Imperial Presidency is the institutional forerunner of George W. Bush’s National Security Presidency.
One of Harry Truman’s major contributions to the Imperial Presidency was his decision to commit the United States to a large-scale land war in Korea without congressional authorization. Truman claimed that Congress’s ratification of the United Nations Treaty committed the United States to United Nations’ missions like that in Korea, but a general treaty obligation can never substitute for the constitutional requirement that Congress declare a specific war. Truman’s essential constitutional claim was that as president and commander-in-chief, the president has inherent authority to commit American troops to battle without congressional authorization. This went well beyond what President Roosevelt had claimed. Congressional leaders protested, but were never able to secure a legislative majority to challenge Truman’s action.8 Since Korea, America presidents have claimed this independent power to send American troops to fight wherever, whenever, and in whatever numbers they believe necessary to achieve American foreign policy goals.
Truman’s second contribution to the Imperial Presidency was the creation of the Central Intelligence Agency (CIA). The National Security Act of 1947 that created the CIA gave it two sorts of responsibilities. One was providing foreign intelligence to the president to help him chart American policy, but the act also gave the CIA an ambiguous authorization “to perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct.”9 There is still some doubt as to what Congress intended by this vague language. Truman himself intended the CIA to be an intelligence agency rather than a covert action agency, but presidents after Truman interpreted this language as authorizing the CIA to conduct “covert operations” against “unfriendly” foreign governments and political groups. These covert operations included propaganda and financing political parties that favored American interests, but they also sometimes included financing and directing paramilitary groups in attempts to overthrow foreign governments and assassinate foreign leaders.10 While the intelligence-gathering component of the CIA might well fit easily with the president’s powers to conduct foreign policy, many of these CIA operations were secret wars initiated without congressional knowledge or consent. Often the CIA did not even tell the president what they were up to.
Most readers will share my surprise at discovering that the supposedly moderate Republican Dwight D. Eisenhower expanded presidential national security powers substantially during his two terms. It was Eisenhower who put the CIA in the business of toppling foreign governments. Unwilling to bear the expense of conventional warfare, he found “covert actions” by the CIA to be a cheap way of fighting the Soviet Union during the Cold War. In his Pulitzer Prize–winning history of the CIA, Tim Weiner notes that during the Eisenhower administration, the CIA undertook 170 new major covert actions in forty-eight different countries, including political, psychological, and paramilitary warfare.11 These included major efforts to overthrow elected governments in Iran, Guatemala, and Indonesia. The operations in Iran and Guatemala were successful, at least in the short term, but Weiner argues that the overwhelming majority of such operations were abject failures, resulting in the needless loss of lives and waste of taxpayer dollars. In that vein, we should remember that it was Eisenhower who authorized the planning for the CIA-directed invasion of Cuba that resulted in the Bay of Pigs fiasco that so embarrassed President John F. Kennedy at the beginning of his term.
Eisenhower also dramatically expanded the realm of secrecy in American government. Of course, American presidents had claimed the right to keep certain categories of information secret from the Congress and the people since the beginning of the republic, but traditionally the ambit of confidential information was construed narrowly to include only military and diplomatic matters and conversations between the president and his closest advisors. It was the Eisenhower administration that extended the area of secrecy to all information generated by the internal deliberative processes of government by creating the new doctrine of “executive privilege.” Between 1955 and 1960, Eisenhower administration officials refused information to Congress forty-four times on the basis of a claim of executive privilege, more than in the entire first century of American government.12
And the Eisenhower years also demonstrate that secrecy breeds deceit. Once a fact is declared secret, officials feel entitled to lie to protect its confidentiality. When the secret finally becomes public, more lies are needed to protect the reputation of the purveyor of the first lie. This all-too-common plot played itself out in the Eisenhower administration in terms of secret flights that Eisenhower had personally approved over Soviet airspace by American U-2 spy planes. When one of the planes was shot down over Soviet territory and the pilot captured, the White House and the State Department told the American people that no such flights had ever been authorized until finally press accounts of the true facts required them to admit the falsehood.13 We will see that false or misleading public statements by high-level officials, including the president, became a recurring motif in American foreign and national security policy.
John F. Kennedy also believed in a powerful national security presidency. While there were 170 covert CIA operations in the eight years of the Eisenhower administration, the Kennedy administration launched 163 in less than three years.14 The most notorious of these was the Bay of Pigs fiasco mentioned above, in which the CIA attempted to land a small anti-Castro army on the shores of Cuba. There was no consultation with Congress about the secret attack. After the failure at the Bay of Pigs, the Kennedy brothers authorized the CIA to assassinate the Cuban leader Fidel Castro.15 Some believe that the attempts to assassinate Castro led to Kennedy’s own assassination. It was one more sign of the growing cult of secrecy that the CIA never mentioned the attempts to assassinate Castro when questioned by the Warren Commission investigating Kennedy’s death.
Perhaps Kennedy’s greatest foreign policy victory occurred when he faced down Nikita Khrushchev in 1962 about the presence of Soviet missiles in Cuba. Kennedy stopped Soviet ships headed for Cuba, an act of war under international law. Here too the president felt no need to consult Congress, much less ask its permission, before taking action. And once again, secrecy played a large role. We now know that the actual agreement with the Soviets was that they would remove the missiles and the United States, in turn, would soon thereafter remove missiles positioned in Turkey aimed at the Soviet Union.16 Khrushchev agreed to keep the American promise secret in order to protect Kennedy’s political image at home. But this secrecy served to reinforce the militarist myth that confrontation is always a better tactic than negotiation.
The Kennedy administration was also the first to authorize surveillance of domestic political dissidents. The FBI, since the Roosevelt administration, had informally kept tabs on individuals thought to be a threat to national security. In the 1950s the FBI even launched the COINTEL program to disrupt the American Communist Party. But it was the Kennedy administration that authorized the FBI to use electronic surveillance to monitor the activities of civil rights leader Martin Luther King Jr. without securing a warrant.17
The Imperial Presidency continued to grow under Lyndon Johnson. In April of 1965, Johnson sent American troops to the Dominican Republic to prevent dissident military officers from taking power. Besides a disingenuous claim that he was acting to protect American lives, Johnson also falsely added that he was acting to prevent “communist conspirators” from setting up “another communist government in the Western Hemisphere.”18 There was in fact no evidence of Communist involvement. But Johnson’s most famous misstatement of fact involved an alleged incident that was used to persuade Congress to pass the Gulf of Tonkin Resolution that authorized the Vietnam War. In June of 1964, Johnson announced in a televised speech that North Vietnamese ships had made an unprovoked attack on American navy ships in international waters off the coast of North Vietnam and that in retaliation he was ordering the bombing of sites in North Vietnam. Historians now believe that there was no such attack; it is also questionable whether the American ships were in international waters. Certainly Johnson knew such an attack was not unprovoked since the American ships were there to support South Vietnamese raids on North Vietnamese territory. Still, Johnson’s version of events was unchallenged and provided the motivation for Congress to pass the Gulf of Tonkin Resolution that granted the president broad authority to use military force against North Vietnam.19 Another clear example of Johnson’s disregard for “checks and balances” was the secret war the CIA fought in Laos, a war continued under Richard Nixon.20 It started as a small, CIA covert action but eventually mushroomed into a full-scale war in which 250 CIA officers led a secret army of forty thousand Hmong tribesmen against leftist Pathet Lao guerillas.
President Johnson also used national security concerns to justify his decision to dramatically expand the government’s surveillance and harassment of domestic political opponents in violation of the First and Fourth Amendments. Going well beyond the tactics that the Kennedy administration had used on Martin Luther King Jr., Johnson ordered that the FBI, CIA, and army investigate possible foreign connections to all organizations involved in either civil rights or anti–Vietnam War dissent Although the fact that there were no such connections was quickly established, government agents in the later 1960s continued to employ a wide variety of “dirty tricks” to monitor, harass, intimidate, and disrupt the protected constitutional activities of hundreds of thousands of American citizens.21
But it was Richard Nixon who (in Arthur Schlesinger Jr.’s words) “stripped away the fig leaves that his predecessor had draped over his assertion of unilateral presidential power.”22 Johnson had always buttressed his actions with claims of congressional consent like the Gulf of Tonkin Resolution. But when Nixon announced the American invasion of Cambodia in 1970, he rested his authority squarely on his duty as commander-in-chief “to protect the lives of American men.”23 Nixon not only continued the secret war in Laos but also initiated long-scale secret bombing of neutral Cambodia. And Nixon combined the use of independent presidential power and government secrecy with the power of presidential speech. At the same time Nixon was thus secretly broadening military actions in Southeast Asia, he continually assured the American public that he was winding the war down.
Nixon also expanded Johnson’s illegal surveillance to include spying on journalists and the creation of an “enemies list” of political opponents to be targeted for government retaliation. The Nixon administration even engaged in burglaries to obtain political intelligence.24 One break-in into the offices of the Democratic National Committee (DNC) in the Watergate complex in Washington, D.C., resulted in the Watergate scandal. Nixon responded to reports of his administration’s involvement in the Watergate break-in by orchestrating a cover-up that included an order that the CIA lie to the American people by claiming that the break-in was part of a national security operation. When later asked about this unparalleled record of presidential law breaking, Nixon gave an answer that makes no sense from a “check and balances” perspective but that anticipated the actions of future presidents: “When the President does it, that means it is not illegal.”25
The Watergate scandal appeared to end the Imperial Presidency. Newspaper reports of the illegalities of the Nixon administration put the presidency on the defensive. Finally he was forced to resign his office in disgrace. The Democratic-controlled Congress felt it was necessary to return the presidency to a less independent role. To that end Congress, over Nixon’s veto, passed the War Powers Resolution, which limited the president’s power to involve U.S. troops in major combat actions to no more than sixty days without congressional authorization. Later Congress also passed the Foreign Intelligence Surveillance Act (FISA),26 which required the CIA to obtain a judicial warrant before engaging in electronic eavesdropping in the United States. So too the Freedom of Information Act (FOIA)27 was amended to give the public access to more information in the possession of the government. Congress also passed legislation requiring the president to keep newly created intelligence committees in each house fully informed about all secret activities. Finally, Congress also provided for the appointment of special independent prosecutors to investigate and prosecute violations of law by executive officials, thereby removing the de facto immunity created by any attorney general’s natural reluctance to prosecute members of his or her own administration.
Jimmy Carter now has a well-earned public image as a peacemaker in his role as former president. But the fact is that Carter signed off on almost as many covert-action orders as Nixon,28 including an order to supply the rebels attempting to overthrow the pro-Soviet government in Afghanistan. That decision, made without congressional authority, proved to be a momentous one. The Soviets then invaded Afghanistan, a decision that in turn motivated the CIA to shuffle even more aid to the rebels, who eventually forced the Soviets out. Unfortunately, this victory over the Soviets also engendered the rise to power of a group of rebels who had been recipients of American aid—the Taliban, who have wreaked so much damage on American interests ever since.
But it was the election of Ronald Reagan that revived a truly aggressive stance on presidential powers over national security. Reagan not only continued the aid to the Afghan rebels but also had no qualms about ordering U.S. troops to invade the small Caribbean island nation of Grenada without consulting Congress. Of course, American presidents had independently authorized small-scale invasions like Grenada before. The more challenging issue was whether the president could act in the national security field in defiance of congressional will. Jackson’s concurrence in Youngstown clearly said no, but Reagan took a different position. The theoretical issue became concrete when Reagan decided to overthrow the elected leftist government in Nicaragua by funding a secret CIA-created army, knows as the “Contras.” The issue was joined when Congress passed legislation that categorically banned any American aid to the Contras.
The Reagan administration responded with a secret plan that not only permitted continued support of the Contras but also promised to solve another Reagan foreign policy headache: the fact that Shiite militias in Lebanon were holding seven Americans hostage. The Reagan administration would sell missiles to the new revolutionary Islamist government in Iran, who would in turn use its influence with the Shiite militias in Lebanon to secure release of the hostages. The sale price of the missiles would be inflated so as to produce surplus funds that the United States would then secretly funnel to the Contras. Secrecy was necessary on more than one account. First, Reagan had pledged never to negotiate with terrorists, and the hostage deal clearly violated that pledge. Secondly, the use of the revenues to support the Contras was a clear violation of the congressional ban. When the facts of the “Iran/Contra” deal became public, President Reagan’s first reaction was to dissemble. (“We did not—repeat—did not trade weapons or anything else for hostages.”)29 But televised congressional hearings made clear not only that there had been a weapons-for-hostages deal but also that the clandestine aid had been provided to the Contras in violation of the congressional ban.
A bipartisan congressional report blasted the Reagan administration for indulging in acts Congress had prohibited, in violation of the separation-of-power principles set out in Justice Jackson’s Youngstown concurrence. Its report concluded that the Reagan administration had done more than break a law; it had “undermined a cardinal principle of the constitution … that the president can spend money on a program only if he can convince congress to appropriate funds.”30 But a minority report written by a group of Republican legislators, including future vice-president Dick Cheney, came to a different conclusion. The minority report rejected the majority’s conclusion that Reagan had acted beyond his constitutional powers, arguing instead that the legislation banning aid to the Contras itself unconstitutionally infringed upon the president’s authority in the areas of foreign policy and national security. It concluded that congressional actions that interfere with the president’s foreign policy powers should be looked at with skepticism: “if they interfere with core presidential foreign policy functions, they should be struck down.”31 The minority report, little noticed at the time, turned out to be the intellectual seed from which the National Security Presidency challenge to the official interpretation of presidential power would grow.
The first President Bush also had expansive views of presidential power, but he preferred to frame public statements in less absolute terms than Nixon or Reagan. Bush Sr. obtained congressional authorization before launching the Desert Storm campaign after Iraq’s invasion of Kuwait. He did this after mounting an extremely sophisticated media campaign against Iraq that gave the Congress very little political choice. And while he wanted congressional support, he never said he needed it to act.
It is important that we understand President Clinton’s record on presidential powers in national security affairs. Many commentators tend to associate expansive claims of presidential powers with Republican presidents like Nixon, Reagan, and the second Bush. The innuendo is that the problem would disappear with a Democratic president. This view ignores the expansive use of presidential power by Truman, Kennedy, and Johnson. And while President Clinton was less bellicose in his rhetoric than his Republican counterparts, he also continued the drift towards more presidential power on national security issues. Clinton independently approved the first CIA “rendition” program that snatched up people from one country for torturelike questioning in other countries.32 Clinton also approved the use of military force in Bosnia, Haiti, and Kosovo without congressional authorization. He continued the Kosovo bombing even after the House of Representatives (in a tie vote) refused to authorize it.33 Even though the Clinton administration had more qualms in theory about the use of presidential power, Jack Goldsmith fairly concludes that regardless of the president’s party, “on matters of war and national security, institutional imperatives and precedents almost always prevailed.”34
Up until 9/11/01, presidents were willing to formally work within the structure of the Jackson concurrence in Youngstown. That opinion’s vague language gave presidents a good deal of what we might call “wiggle room.” A president could always claim that Congress had indeed approved his act in some prior legislation. And, if Congress had not granted authority, the Jackson opinion also granted the president an undefined residuum of independent authority. These arguments were buttressed by the reassuring fact that federal courts were reluctant to accept cases involving national security and therefore unlikely to reject a president’s argument. But during the presidency of George W. Bush, presidential claims that were implicit became explicit (albeit only in secret documents). It was the 9/11 attacks that permitted the National Security Presidency challenger to fully blossom.
Although foreign affairs issues were hardly mentioned in the 2000 presidential campaign, we know now that President George W. Bush had a clear foreign affairs agenda when he entered the White House. Part of that agenda, reflecting the beliefs of Vice-President Dick Cheney, included a halt to the “erosion” of presidential powers that had taken place after Watergate. In fact, Bush intended to do more than stop the erosion; he intended to advance the power of the presidency as an institution—to leave the presidency stronger than he found it. In January of 2001, almost nine months before 9/11, he told his national security team that he had three foreign policy objectives: get rid of Saddam Hussein, end American involvement in the Israeli-Palestinian peace process, and bring friendly governments to power in the Mideast.35
Bush made clear that he believed he had independent authority to make war. After the 9/11 attacks Congress almost unanimously authorized the president to “use all necessary and appropriate force against nations, organizations, or persons” who committed or supported the 9/11 attacks. While Bush thanked Congress for their expression of support, he did not feel he needed any congressional permission to attack Afghanistan. Bush had good authority from the Justice Department’s Office of Legal Counsel (OLC) that reassured him on that point. The OLC is a little known but very powerful player in executive branch politics; it has the authority to issue legal opinions that are binding throughout the executive branch. It had issued just such a memo declaring that the Constitution gave the president inherent power, independent of Congress, to use force as he saw fit to protect American interests. The memo said that Bush not only had power to act without congressional authorization; he was also constitutionally immune from any limits Congress might attempt to impose on such a war. The memo concluded that Congress cannot “place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.”36 The memo was immediately classified as secret.
Another OLC memo concerned the secret executive order Bush signed authorizing the National Security Agency to eavesdrop on individuals suspected of terrorist-related activities in the United States. As we mentioned earlier, the Foreign Intelligence Surveillance Act (FISA) set up a procedure that the executive branch must follow to get a warrant for domestic national-security spying, a procedure the executive order said the NSA could ignore. This OLC memo, also secret, ruled that the executive order was within the president’s constitutional powers because Congress had no power to restrict the president’s chosen means of acquiring “battlefield intelligence,” and the battlefield in the War on Terror extended to American soil. As the memo’s author, John Yoo, explained, “I think there’s a law greater than FISA, which is the constitution, and part of the constitution is the president’s commander-in-chief power. Congress can’t take away the president’s powers in running war.”37
Bush also claimed the right to terminate American treaty obligations without congressional consent. The president announced withdrawal from the Anti-Ballistic Missile (ABM) Treaty signed by President Nixon and ratified by the Senate in 1972. While Article II makes clear that the president and the Senate share the power to enter into treaties, the text of the Constitution is silent on the issue of terminating treaties. Logic would seem to argue that if both the president and Congress must be involved in entering a treaty, both should be involved in terminating it. If the president cannot autonomously terminate a law he disfavors, neither can he terminate a treaty he disfavors. But modern presidents have disagreed. The issue even reached the Supreme Court in the late 1970s, but the Court avoided ruling on the issue.38 Bush simply announced withdrawal from the ABM Treaty on his own authority. The Republican-controlled Congress remained silent.
Another example of the National Security Presidency in action was Bush authorizing the CIA to use “aggressive” interrogation techniques (like “waterboarding”) while questioning terrorist suspects. This authorization created two sets of legal problems. First, the Convention against Torture (CAT), to which the United States is a party, forbids both torture and “cruel, inhuman, and degrading treatment”; most commentators believe that some of the approved methods at least constituted the latter form of illegal conduct and perhaps the former. But administration officials were more worried about a second problem: a congressional statute implementing the convention makes it a felony to intentionally engage in torture, which the statute defined as acts “specifically intended to inflict severe physical or mental pain or suffering” upon a person held in custody.39 While the CIA agents who would conduct the interrogations were not too worried about violating an international treaty like the Convention against Torture, they did fear prosecution for violation of a congressional statute carrying up to a twenty-year prison sentence.
Once again, the Office of Legal Counsel came to the rescue with one more secret memo that argued for a narrow reading of the statute forbidding torture. But then the memo went on to make a more controversial constitutional claim: the congressional statute was inoperative with regard to the interrogations because as commander-in-chief the president had authority to use whatever techniques he deemed necessary, even if they violated a statute. The memo concluded that “[j]ust as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the president from gaining the intelligence he believes necessary to prevent attacks upon the United States.”40
President Bush would also issue “signing statements” in which he would announce his power to ignore certain provisions of congressional statutes as being in violation of his constitutional powers. Senator John McCain introduced legislation to make “acts constituting cruel, inhuman, or degrading treatment” illegal under American domestic law, as well as violations of the international convention. This legislation would make use of interrogation techniques like waterboarding a felony. The Bush administration strenuously opposed McCain’s legislation, but the president announced he would sign it when it passed both houses of Congress with a veto-proof majority. He did sign the bill, but quietly afterward issued a “signing statement” that declared that the executive branch would construe the legislation “in a manner consistent with the constitutional authority of the President as Commander-in-Chief and consistent with constitutional limits on the judicial power….”41 In other words, the president would honor the statute only to the degree he cared to do so.
I think that we must concede that at least on the level of clarity the National Security Presidency is an improvement over the official interpretation it challenges. It articulates a comprehensive constitutional vision to justify the national security powers it claims. While much of this vision was set out in secret OLC memos, many of these memos have now become public, and their reasoning is open to public scrutiny. Also, the primary author of the memos, John Yoo, a respected legal academic, has explained the vision in law journal articles and a book.42 And Jack Goldsmith, another law professor who was head of the OLC during part of the Bush administration, has also written a book in which he sets out the constitutional views of Vice-President Dick Cheney. It turns out that Cheney’s views (he is not a lawyer) were in large part developed by his long-time top legal aide, David Addington. Addington not only authored the constitutional analysis in the House minority report on the Iran-Contra affair; he also played a major role in forging the legal arguments that underlay Bush’s claims to limitless power.43
When we look at the OLC memos, Yoo’s books and articles, and the views of Cheney and Addington as set out in Professor Goldsmith’s book, we see two mutually supporting lines of constitutional analysis. The first I identify with Yoo; it argues that, contrary to the conventional wisdom on the issue, the authors of the Constitution intended to lodge almost all power over foreign affairs and war and peace in the presidency. Placing powers of war and peace in the executive branch was the British constitutional model, and Yoo argues that the same arrangement was adopted by the framers of our Constitution. They accomplished this task by the first sentence of Article II, Section 1, which cryptically states, “The executive Power shall be vested in a President of the United States of America.” Yoo argues that this vesting of the executive power (the “vesting clause”) in the president was intended to give him all the power over foreign affairs enjoyed by the British king except those powers expressly allocated to Congress under Article I.44 At the same time that Yoo gives an expansive reading to the vesting clause of Article II, he gives a narrow reading of Congress’s power under Article I to “declare war,” seeing it as no more than the formal right to declare the legal status of a war the executive has already commenced.45 And as we have seen in the memos Yoo wrote while at the OLC, he believes not only that the president has power to commence wars but that any attempts by Congress to limit his war policies are themselves unconstitutional as a violation of his Article II powers. When critics argue that this enormous grant of power to the president violates our Constitution’s commitment to checks and balances, Yoo points to Congress’s power to refuse to appropriate funds to support a war they oppose. Of course, Professor Yoo knows that this happens to be a weapon that modern Congresses find politically impossible to invoke once American troops are committed.
According to Professor Goldsmith, David Addington relies primarily on the commander-in-chief power to justify his equally expansive view of presidential power. Addington, citing the practice of Abraham Lincoln during the Civil War, argues that the president has broad authority as commander-in-chief during a time of emergency to fulfill his constitutional oath to “preserve, protect, and defend the Constitution of the United States.”46 The commander-in-chief power gives the president power not only to act independently of Congress but also to keep his actions secret; and he can also ignore congressional limits on his choice of means to fulfill his broad duties as commander-in-chief. Here Addington goes well beyond what Lincoln claimed for the president. Lincoln made his acts public and conceded Congress’s power to countermand them.
Yoo argues that his interpretation of Article II is faithful to the authors’ original design. Limiting constitutional interpretation to the “original intent” of the framers has been a central tenet of American conservative constitutional dogma since the 1970s, when it was employed to attack “activist” Supreme Court decisions like Roe v. Wade. Whether or not “original intent” makes sense as a matter of constitutional theory, it is certainly difficult to square with American constitutional history since the Supreme Court has routinely adopted interpretations of the text not envisioned by its authors. One example is the First Amendment, a text that we will see in chapter 2 has been interpreted more expansively than its original intent would permit. And Yoo’s expansive views of presidential power are also at variance with the way most scholars see the intent of the framers on that issue. If the framers did indeed intend to grant the president the same foreign affairs powers enjoyed by the British king, it was the best kept secret in American constitutional history. As Arthur M. Schlesinger Jr. makes clear, the framers certainly did not want to follow the British monarchy as a model for the presidency. “As victims of what they considered a tyrannical royal prerogative, they were determined to fashion for themselves a Presidency that would be strong, but still limited.”47 Addington’s theory also seems difficult to square with original intent since, whatever the merit of his views, Lincoln was not one of the framers and read into the text emergency powers they had not included.
But I do not think we should reject the National Security Presidency on the basis that it is not consistent with the “original intent” of the document’s authors. Like most constitutional commentators, I think that to do so would overstate the importance of the authors’ original intent in constitutional interpretation. It is one relevant factor, but there are other factors that also should be considered in interpreting the Constitution. We should also look to the goals of the constitutional enterprise, the structure of the text, later Supreme Court interpretations, and the present and future consequences of proposed interpretations. I am especially influenced by the first and last of these criteria. I think we should ask ourselves whether the National Security Presidency best furthers the Constitution’s goals in our own day.
Let’s first attempt to state the case for the National Security Presidency in a sympathetic manner. A supporter might argue as follows: The border between the conduct of foreign policy that all concede is placed in the president’s hands and the use of military force is too murky to delineate clearly; sometimes force or the credible threat of force is necessary to effectuate foreign policy goals. Only the president has full access to the information necessary to take successful action in the foreign policy area, and the need to keep diplomatic and military planning secret prevents him from sharing that information with Congress and the public. For this reason, the president is the only elected official who can, as it were, see the whole foreign policy playing field. So too the president is the only official elected by all the people, and therefore he has a special democratic claim to make decisions for the whole nation. He has the right to make the decisions he feels are necessary to defend the nation, and if his decisions prove wrong, the voters can withdraw that authority at the next election. And, in the interim, the Congress always retains authority to deprive the president of funds to implement policies they disapprove of. And if sometimes the president’s national security responsibilities will require him to curtail individual statutory and constitutional rights, this is a small price to pay to protect the security that is a prerequisite for the existence of those rights. As Judge Posner reminds us, the Constitution, after all, is not a suicide pact.48
The idea of an all-powerful leader protecting the nation in times of peril is seductive, but also dangerous. The remainder of this book argues that the National Security Presidency fails to measure up on two fundamental constitutional metrics. It incorporates an unduly thin conception of democratic government, and it fails to provide an effective structure for making national security decisions.
With regard to democratic government, the National Security Presidency reduces democratic control to the holding of a plebiscite on foreign policy every four years. While it is true that the president and vice-president are the only candidates who stand before the whole nation for election, the genius of our Constitution is to recognize the value of a plurality of overlapping electorates, each contributing to decisions on war and peace. Candidates for different offices face different electorates and serve for different terms. Obviously, the smaller the electorate, the larger impact the individual voter has within in it, a fact that calls for the House of Representatives to play a significant role. So the Senate is structured to give geographic regions of the nation effective voice, and they also should be heard. And the First Amendment assures that even groups who are not powerful enough to elect their candidates will be allowed to have their voices heard. The democratic pedigree of such a multilayered system is much better than that of a single election every four years.
And upon reflection, even the argument that the voters authorize a president’s national security policy every four years is more rhetoric than fact. Even if we preferred a four-year plebiscite on national security policy, presidential elections rarely perform that function. Presidents Johnson and Nixon actually presented themselves as “peace” candidates just before initiating and expanding the Vietnam War. And foreign policy was almost never mentioned in the 2000 campaign that elected George W. Bush, who led us into the Iraq quagmire.
History also shows that the campaign for reelection of a sitting president who has involved us in a major war is dramatically skewed by voters’ reluctance to signal any lack of support for troops in the field, no matter how misguided they may feel the war itself is. Most of the voting public was disenchanted with the Vietnam War in 1968, but the war continued until 1975. So too most of the public felt by 2004 that the Iraq War had been a mistake, but that didn’t prevent President Bush from winning reelection on the basis of “stay the course” rhetoric We can only speculate about the reasons why Bush was able to be reelected while Johnson was forced from office. I would suggest that two contributing reasons were that Bush made more effective use of the power of presidential speech than did Johnson; and the Warren Court was more protective of First Amendment activities opposing Johnson’s war than the Rehnquist or Roberts Courts were after 9/11.
Arguments for expanded presidential power assume that we always face a necessary choice between more democratic involvement and greater efficiency in attaining foreign policy goals. More democratic checks on presidential power lead to less effective policies. Presidents believe that only they know what must be done and how to do it. But again history shows that democratic checks on presidential power, supported by First Amendment rights, often yields better substantive decisions than a process dominated by the president. A richer debate, involving more perspectives, better weighs the pros and cons of military involvement than one dominated by executive branch group think. Certainly we would have been better served by a full, informed discussion of the reasons to invade Iraq and the possible consequences of the invasion than we were by the fear-driven debate dominated by presidential rhetoric that actually took place. And, while it may be true that some individual rights must sometimes be sacrificed to some degree in favor of national security concerns, this is usually not the case with free speech rights. Dissenting speech that alerts us to the weakness of government proposals makes us more rather than less safe.
We should also recognize the impossibility of disentangling national security affairs from the other areas of governmental responsibility. Concentrating national security power in the president inevitably has effects on other areas. When a president leads us into a war, this not only has foreign policy repercussions; it also expends funds that might otherwise have been used for other governmental purposes like health care. And curtailing individual rights in the name of national security leads to curtailment of rights in other contexts. We start with an elected dictator in the area of foreign affairs and end with just an elected dictator.
The reader may well want to know the current status of the National Security Presidency challenger. The reassuring news is that it’s still only the challenger. When the Bush administration argued that the president had authority without congressional consent to designate individuals as enemy combatants, the Court refused to accept this argument.49 But the Court passed up the chance to reject the president’s argument as an erroneous interpretation of his powers. Instead the justices decided the case on narrower grounds. So the claim to independent power is still in play for future cases. On the other hand, it is reassuring to note that the Court has rejected the extreme claim that the president is not limited by congressional statutes in the national security area.50 But, as we will see in chapter 6, the Court’s penchant to rule narrowly on the facts of each case and its use of technical doctrines, like standing, that make it difficult for plaintiffs to challenge presidential actions in the federal courts have resulted in the National Security Presidency operating as the de facto Constitution over a wide array of issues. So long as the courts don’t reject the theory outright, presidents can continue to use it to guide their actions, safe in the knowledge that a contradictory court ruling is unlikely to materialize. And while President Obama has made it clear that he will not continue many of the most controversial national security policies of the Bush administration, he has not renounced the power to adopt any policies he feels will advance national security interests. So I think the most prudent conclusion to make of the status of the National Security Presidency is that, while not triumphant, it remains alive and well to fight future battles.