As a reverent admirer of George Will, it pains me to say that his diatribe today against the National Security Agency’s terrorist-surveillance program is an embarrassing magpie of hyperbole and error.
Will’s premise is that the administration, in authorizing the program, has promulgated the “monarchical doctrine” that “whenever the nation is at war, the other two branches of government have a radically diminished pertinence to governance, and the president determines what that pertinence shall be.” This is so outlandish as to defy measure. Neither the administration’s position nor the NSA program have much of anything to do with governance in the domestic sphere–which, it should be observed, is the only sphere in which one of the branches Will refers to, the judiciary, ever has a role in governance.
A Foreign Affair
Will can suggest otherwise only by misrepresenting the program as “warrantless surveillance…targeting American citizens on American soil.” In fact, the program targets al Qaeda, a foreign terrorist organization with which we are at war, and which is energetically working (it tells us unabashedly) toward a strike against our homeland which would dwarf the carnage of 9/11. The program targets, moreover, only international communications by this foreign enemy, some of which cross U.S. borders. Of course, it is settled law that warrantless searches at the border are an entirely legitimate exercise of executive power, even in peacetime. Anomalously, Will finds warrantless searches in wartime of possible enemy commands to launch a strike that could kill countless thousands of Americans to be an exercise in despotism.
The administration’s position, and the program, is pertinent to governance in the field of foreign relations. In that field, whether Will likes it or not, the president has primacy–primacy of the same sort the Supreme Court enjoys in interpreting the Constitution and Congress in funding governmental operations. The president does not enjoy such primacy because of some Bush administration ipse dixit. It has been the law ever since we began living under the Constitution.
Will is offended by what he calls “the administration’s argument that because the president is commander in chief, he is the ’sole organ for the nation in foreign affairs[,]‘” a contention Will preposterously calls a “non sequitur [that] is refuted by the Constitution’s plain language.” Perhaps Will–who evidently has no problem relying on Supreme Court precedent when he thinks it advances his position–should take a look at what that tribunal has said in this regard.
What The Court Does Say
He’ll find that what he is quoting is not “the administration’s argument.” Rather, it is the Supreme Court’s interpretation of the very Constitution to which Will alludes. Specifically, the Court divined in United States v. Curtiss-Wright Export (1936) the “delicate, plenary and exclusive power of the president as the sole organ of the federal government in the field of foreign relations.” (Emphasis added.) The Court reaffirmed the point a half-century later in Navy v. Egan (1988), observing that it had long “recognized the generally accepted view that foreign policy was the province and responsibility of the Executive” (internal quotation omitted).
The Court has not rested this view solely on the president’s status as commander-in-chief but on all the powers vested in him under Article II. This includes all of the executive power itself which, as the Framers well understood, needed a far wider berth in the international arena if the Nation was to be secure. Will, however, curiously contends that this concept cannot be squared with the Constitution the framers bequeathed us which, according to Will, “empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws ‘necessary and proper’ for the execution of all presidential powers.” (Emphasis in original.)
And what the Constitution Says
But he’s wrong. For example, the Constitution does not empower Congress to ratify treaties. The president ratifies treaties (as well as makes them); “Congress” has no role at all–the Senate must consent to them, but such consent does not bind the president to put treaties into effect. The power to declare war has never been a power to make, authorize, or initiate war. Indeed, as demonstrated in The Powers of War and Peace by Professor John Yoo, formerly of the Justice Department’s Office of Legal Counsel, the Framers altered a draft of the Constitution that would have empowered Congress to “make” war, settling on “declare,” a term of art which, at the time of the founding, merely meant the provision of formal notice to the world (including the enemy) of a state of total war (as opposed to some lesser degree of hostilities), which triggered various rights for belligerents under international law. It is no accident either that the U.S., despite having participated in numerous wars, has formally declared war only five times in its history (and not since 1941), or that our British forebears frequently fought wars with no formal declaration whatsoever.
Furthermore, the “necessary and proper” clause sheds exactly no light on the current controversy. It is freely conceded that Congress has the authority to make laws necessary and proper to vindicate the powers enumerated in the Constitution. That hardly means, however, that the president is impotent to take measures consistent with his own inherent authority under Article II–and the president, it bears noting, is the only governmental officer bound by our fundamental law “to preserve, protect and defend the Constitution of the United States” (Article II, Section 1). Nor does it mean the president is bound to honor congressional enactments (such as the Foreign Intelligence Surveillance Act (FISA)) to the extent their operation would constrain his inherent authority–a position supported historically by administrations of both parties because of the elementary proposition that a statute cannot trump the Constitution.
It is simply a fact that there is a chasm between presidential authority in the domestic and foreign realms. In domestic affairs, we live in a single political community, the government has a monopoly on the use of force, and courts are imposed as a bulwark to protect Americans from executive and legislative overreaching. There, Congress has broad powers to regulate executive action. Not so in the international arena. There, we confront unpredictable contingencies including enemies claiming the power to use massive lethal force. The circumstances are not hospitable to the same kind of antecedent law-making that is practical in domestic affairs. That is why the framers provided for an energetic executive, not national security by committee.
It is also, no doubt, why, in United States v. Brown (1973), the Fifth Circuit U.S. Court of Appeals, in upholding the president’s inherent Article II authority to conduct warrantless wiretaps for foreign intelligence gathering, asserted that “[r]estrictions upon the President’s power which are appropriate in cases of domestic security become artificial in the context of the international sphere.” It is why, when FISA became law in 1978, President Carter’s attorney general, Griffin Bell, stressed that FISA did not (and, indeed, could not) vitiate the president’s inherent authority under Article II. It is why, in 1994, President Clinton’s deputy attorney general, Jamie Gorelick, testified that the president maintained his inherent Article II authority to order warrantless searches even when FISA was expanded to regulate such searches. And it is why, even after a quarter-century of FISA, the highest and most specialized court ever to review that statute, the Foreign Intelligence Court of Review, observed in 2002: “[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information… We take for granted that the President does have that authority.” (Emphasis added.)
A Spurious Citation
Will’s apparent response to the weight of this authority–I must say “apparent” because he doesn’t deign to discuss any of it–is to misstate the resolution of the 1952 steel seizure case. There, he claims, the Supreme Court “held that presidential authority is weakest when it clashes with Congress.” But that was not the holding of the Court. It was the view of Justice Robert Jackson in a concurring opinion. Even Justice Jackson, furthermore, did not claim that presidential power disappears when it is at loggerheads with Congress’s will. Instead, the outcome of the historic and inevitable competition between the political branches depends on the nature of the powers implicated as they relate to the dispute at issue.
The steel seizure case, though it occurred against the backdrop of the Korean War, involved presidential interference in a domestic collective bargaining dispute. To the contrary, the NSA program involves foreign intelligence collection, a matter as to which we needn’t speculate the extent of presidential authority–as we have seen, that authority is plenary. Little wonder then, as pointed out in a recent letter to the Senate Judiciary Committee by attorney Bryan Cunningham (a former official in the Clinton and Bush administrations), that it was the very same Justice Jackson who wrote for the Court only two years earlier, in Johnson v. Eisentrager (1950), that the president was “exclusively responsible” for the “conduct of diplomatic and foreign affairs.”
A Further Misunderstanding
Will’s attack on the administration’s secondary position, viz., that its NSA program is authorized to operate outside FISA’s strictures by Congress’s post-9/11 Authorization for the Use of Military Force (AUMF), is specious. He begins, yet again, by either misunderstanding or misstating the argument.
The administration is not, as Will avers, “incoherently” claiming that it thinks Congress tacitly blessed warrantless monitoring even though it really believes Congress would have declined such authority if asked specifically. As Attorney General Alberto Gonzales explained in answers to questions posed by Senate Judiciary Committee Chairman Arlen Specter, the administration believed it could not get FISA amended to approve the NSA program without compromising operational details of the program, which would inexorably have alerted the enemy to our capabilities. Thus it went ahead, not because it thought Congress unreceptive but because it believed–quite plausibly–that it already had valid legal grounds and pursuing additional, more specific authority would have undermined wartime effectiveness.
Will then grouses: “the argument that the AUMF contained a completely unexpressed congressional intent to empower the president to disregard the FISA regime is risible coming from this administration. It famously opposes those who discover unstated meanings in the Constitution’s text and do not strictly construe the language of statutes.” But it is Will’s contention that is risible. Let’s leave aside that the president’s authority over foreign intelligence collection is so firmly entrenched as to require little discussion. In point of fact, what this administration “famously” did only two years ago is argue to the Supreme Court that the AUMF tacitly authorized the detention without trial of American-citizen enemy combatants. The Supreme Court accepted that argument in Hamdi v. Rumsfeld (2004), another case Will neglects to mention. The Court accepted the argument, it bears underscoring, based on the very rationale that applies perfectly here: the AUMF provides authority for all the fundamental aspects of war-waging. Those include the detention of enemy combatants, and they include–just as basically–the penetration of enemy communications.
Finally, as George Will knows as well as anyone, the president is no monarch. While his polemic is counterfactually entitled “No Checks, Many Imbalances,” the Congress has the ultimate and complete check here. It can, right this minute, vote to cut off appropriations for the program. Naturally, it won’t do that because it recognizes that the program is necessary and that the American people are not offended by the manner in which it has been implemented.
And for all Will’s bombast about the Constitution’s plain language and structure, it is difficult to imagine anything that would have been more startling to those who crafted our fundamental law than the suggestion that the president of the United States needs a federal judge’s permission to intercept the international communications of a wartime enemy that seeks, above all else, to mount a massive attack against the homeland.
–Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.