Politics & Policy

Times Change

Remember when scholars thought presidents were "above the law"?

“The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.”

That sure sounds like it could have been written by John Ashcroft. Or Alberto Gonzales. Or one of the many Bush-administration officials vigorously defending the NSA’s warrantless monitoring of enemy communications into and out of the homeland. After all, it succinctly states the best explanation for why President Bush was empowered to go beyond the strictures of the 1978 Foreign Intelligence Surveillance Act (FISA) and create a terrorist-surveillance program, designed to prevent a reprise of 9/11 … or worse.

But the assertion does not come from the Bush administration at all. Nor from Fox News, Rush Limbaugh, National Review, or any of the other precincts limned by today’s American Left as megaphones for the president’s dreaded “domestic spying program.”

No, for this clear statement of principle, we have the Clinton administration to thank. Specifically, then-Attorney General Janet Reno’s Office of Legal Counsel (OLC)–the Justice Department’s elite unit of lawyers for the lawyers. It was chiseled into a formal 1994 OLC opinion, aptly entitled “The President’s Authority to Decline to Execute Unconstitutional Statutes,” by then-Assistant Attorney General Walter Dellinger, OLC’s top gun.

“Where the President believes that an enactment [by Congress] unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it,” Dellinger explained. Far from a novel idea, his opinion elaborates that: “the general proposition that in some situations the President may decline to enforce unconstitutional statutes is unassailable.”

Evidently, sometime between 1994 and 2006, it suddenly got assailable. In January, as controversy was stoked over the NSA program’s much-decried violation of FISA’s purported requirement that the president of the United States ask a judge’s permission to intercept enemy communications in wartime, Dellinger joined several other “scholars of constitutional law and former government officials”–including several who served in the Clinton Justice Department–in ceremoniously submitting to Congress a letter-brief castigating the Bush administration’s imperial lawlessness.

The Bush Justice Department had argued that FISA, a mere statute, cannot be read to curtail the president’s inherent constitutional authority to tap international communications–even those crossing U.S. lines–to protect the American people from foreign attack. In countering, Dellinger and his colleagues–eliding mention of any prior views they’d had on the subject–inveighed that the administration had “fail[ed] to identify any plausible legal theory for such surveillance.”

Not even plausible? Now that’s odd. Dellinger’s 1994 opinion had assured the Clinton White House of an “unassailable” proposition that presidents may carry out their duties irrespective of limiting statutes–an executive prerogative bolstered by both Supreme Court authority tracing back to the Wilson administration and Justice Department guidance unaltered since 1860. And while, this January, the scholars and former government officials told Congress that presidents can ignore statutes only when their “authority is exclusive” (emphasis in original), Dellinger intimated no such thing in 1994 as he canvassed Supreme Court precedent that, unsurprisingly, announces no such rule.

Dellinger, moreover, was far from the only Clintonian champion of a muscular presidency. That is clear from a superb letter-brief just provided by Bryan Cunningham, an attorney who worked on national security issues in both the Clinton and Bush administrations, to the Senate Judiciary Committee, which is about to start hearings on the NSA program. Cunningham compellingly demonstrates that the Clinton Justice Department–like every other Justice Department under presidents from both parties–staunchly defended executive primacy in the areas of national-security and foreign-intelligence collection. (Full disclosure, while Cunningham has graciously credited me, among others, for some minor editorial assistance, I note with admiration and envy that the submission is uniquely his.)

Thus in 2000, for example, a new OLC director issued yet another formal opinion–one with ironic bearing on the current melodrama. It was called “Sharing Title III Electronic Surveillance Material with the Intelligence Community.”

Title III is the statute that prescribes procedures for wiretaps in criminal investigations, as contrasted with FISA, which covers intelligence cases. In it, Congress strictly limited the sharing of eavesdropping evidence. Yet, the Reno Justice Department admonished that there would be times when the wiretapping of Americans might “yield information of such importance to national security or foreign relations that the President’s constitutional powers will permit disclosure of the information to the intelligence community notwithstanding the restrictions of Title III.”

But wouldn’t that amount to “domestic spying?” For the Clinton administration, that was of little moment. “Where the President’s authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President’s constitutional authority and should be read to be ’subject to an implied exception in deference to such presidential powers,’” declared the OLC–taking pains to flag that it had borrowed supporting language from an old opinion by an influential federal appellate judge named “Scalia.”

Much has changed, of course, since the Clinton administration closed shop. For one thing, it’s not peacetime anymore. Al Qaeda, which blew up two American embassies and one American naval destroyer in the years after Walter Dellinger’s 1994 guidance, carried out the worst domestic attack in the history of the United States on September 11, 2001, slaughtering nearly 3,000 Americans. We have had troops in harm’s way ever since.

The enemy, meantime, has staged sneak attacks in Bali, Djerba, Ankara, Mombassa, Madrid, London and elsewhere, all the while waging war in Afghanistan and Iraq. Its leaders, in addition, have repeatedly brayed (even as late as just a few days ago) that al Qaeda is planning strikes against the American mainland that would dwarf the carnage of 9/11. Certainly, the need for broad executive discretion to protect the nation seems only more urgent than it was when Dellinger made his strong case a dozen years ago.

Of course, there is one other thing: Did I mention that there’s now a Republican in the White House?

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.


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