Executive Power: War on the Constitution

National Law Journal

There are prior and current members of the Bush administration, including Vice President Dick Cheney, who openly argue that if the country is at war, the president should be able to ignore domestic and international law outlawing torture, prohibiting illegal detention, providing due process and jurisdictional restraints on military commissions and limiting domestic spying under alleged commander in chief powers. Such claims are unacceptable. Under Article II, Section 3 of our Constitution, the president has an express and unavoidable duty to faithfully execute the “Laws” and has no power to violate them. As Richard Nixon learned, presidential authorizations to violate the law are, in the words of the House Judiciary Committee, “subversive of constitutional government.”

The radical jurisprudence of adherents to the commander-can-violate-laws theory is not “conservative,” since it necessarily ignores views of the founders and framers and overwhelming recognitions in judicial opinions to the contrary. In particular, it ignores unanimous recognitions by the judiciary that all within the executive branch are bound by the laws of war, and numerous affirmations of a constitutionally based judicial power to apply law in cases before the courts and ultimately to review executive decisions taken in time of war.

Since 1800, Supreme Court opinions have also recognized the power of Congress to limit certain commander in chief powers during actual war. More generally, this power does not apply outside of an actual war, and the United States cannot be at “war” with al-Queda or terrorism as such. Even during actual war, Justice David H. Souter recognized, “the President is not Commander in Chief of the country, only of the military.”

Domestic spying: no authority

Attorney General Alberto Gonzales and President Bush claim that domestic spying in manifest violation of the Foreign Intelligence Surveillance Act (FISA) is permissible under the commander in chief power and is authorized by Congress in broad language in the 2001 Authorization for Use of Military Force (AUMF) regarding individuals responsible for the 9/11 attacks. Similar claims were made in a letter to four members of Congress on Dec. 22 by Assistant Attorney General William E. Moschella. The claims are patently false.

With respect to presidential power, Moschella seriously misread the Prize Cases by ignoring the fact that, immediately before the language he quoted, the Supreme Court expressly referred to two early federal statutes that “authorized . . . [and] bound” the president to use armed force, demonstrating another instance of congressional power to regulate portions of the commander in chief power during actual war. Moreover, any “inherent presidential authority” to spy on Americans at home is not an exclusive power and has been clearly limited in the FISA.

Additionally, there is no congressional authorization in the AUMF to engage in domestic spying. First, there is no persuasive evidence that Congress intended to override any provisions of the FISA. Second, the AUMF contains no express or implied authorization concerning surveillance. With respect to executive action, the purpose of the AUMF is clearly contained in the authorization to use merely “necessary and appropriate force” against those “nations, organizations, or persons” that “planned, authorized, committed, or aided” the 9/11 terrorist attacks or that “harbored such . . . persons.” The authorization of appropriate “force” is not an authorization to torture or to use cruel, inhuman, degrading or humiliating treatment against any person; it is not an authorization to create military commissions that are otherwise without jurisdiction and fail to provide due process required by constitutional and international law; and it is certainly not an authorization to spy on individuals in the United States. The word “appropriate” also impliedly requires compliance with law.

Third, whatever authorizations exist in the AUMF to use force, it is evident that they are restricted in two important respects. The first restriction is recognizable in language reflecting past events. The words “planned, authorized, committed, or aided” refer to the past and more specifically to the events of 9/11. The second restriction is more significant. With respect to the people against whom appropriate force can be directed, the authorization is expressly tied to those who “planned, authorized, committed, or aided” the 9/11 attacks as such or who “harbored such . . . persons.” Not covered are those who merely have, in the president’s words, “known links” with al-Queda or, in Moschella’s words, links with “an affiliated terrorist organization.” Also not covered are misguided people who merely sympathize with the 9/11 terrorists, people who pose “a threat of future terrorist attacks” or people who simply communicate with them.

The FISA provides an appropriate national security tool for spying on transnational communications with the 9/11 and other terrorists. The AUMF does not do so and offers no aid for presidents and others who violate laws concerning inhumane treatment of detainees, military commissions and domestic spying.

Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston and a former captain, U.S. Army judge advocate general’s corps and member of the faculty at the Judge Advocate General’s School (1969-1973).


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