The Supreme Court’s decision in Hamdan v. Rumsfeld is a national-security disaster. Forget about its undermining of military commissions. Forget even about its rewriting of the Geneva Conventions into something the United States would never have ratified.
Hamdan is a disaster because it sounds the death knell for the National Security Agency’s Terrorist Surveillance Program (TSP), the early-warning system developed by the Bush administration to ward off a reprise of 9/11 by penetrating the enemy’s wartime communications.
Almost as depressing as the vertiginous 180-page decision itself has been the don’t-worry-be-happy post-mortem, which holds: “Hey, it’s not so bad — Congress can fix it.”
This is the silver lining grasped by a number of usually astute analysts. The theory goes something like this: “The Supremes may have slapped down President Bush’s effort to deny al Qaeda terrorists trials that would provide them with an education in American intelligence capabilities. But don’t fret: Congress can make it right.”
Underlying this rosy construction, though, is an implication that would have horrified the Framers: The president’s power to safeguard the United States from external threats is dependent on Congress’s willingness to “authorize” protective measures. Our forebears knew better. They had lived through over a decade of the Articles of Confederation. They had seen national security by committee. They well understood that it was no national security at all.
Of course they were wary of executive power’s tyrannical proclivities — that’s why they divided powers and left Congress in charge of the purse strings (among other things). But the Framers realized the need, in times of crisis, to concentrate the nation’s protective arsenal in a single set of hands, the president’s. Otherwise, agile enemies, unburdened by separation-of-powers anxieties, could run rings around America’s defenses. And this, mind you, was long before al Qaeda — over two centuries before weapons of mass destruction coexisted with communications systems that can transmit orders from Kandahar to New York in the click of a mouse.
In wartime, in response to threats against the body politic, all the might of government would be embodied in the president. This alone would ensure that if an adept enemy took unanticipated action, the nation could swiftly respond; or that if the enemy exhibited some sudden vulnerability, the nation could quickly capitalize. It was how wars would be won.
THE TSP & FISA
We are fighting an intelligence-dominated war against jihadists pledged to strike us domestically. Our homeland cannot be attacked absent al Qaeda cells burrowed among us, awaiting the call to action. Our only defense is to find out who they are and stop them. Yet, the electronic surveillance system we have had in place for national security since 1978, known as FISA (the Foreign Intelligence Surveillance Act), authorizes monitoring only when government can show “probable cause” that terrorist activity is afoot. That is, it permits eavesdropping only on those already known to be dangerous.
On September 10, 2001, no one knew Mohamed Atta was dangerous. No one knew his associates were a mortal peril — a cabal of 19 that could take a nation of 300 million to war.
Requiring “probable cause” proof of dangerousness will not root out the next Mohamed Attas. Instead, the Bush administration’s TSP authorizes the interception of any communications across national borders between persons reasonably suspected of al Qaeda ties and any others — even if those others are in America. Especially if those others are in America. It is the ones in America that can kill Americans.
This is common sense. It is why the Terrorist Surveillance Program (TSP) has enjoyed such one-sided public support since al Qaeda’s information service (also known as the New York Times) revealed the existence of the program in December 2005.
Unfortunately, what the public demands for its security and what the unaccountable courts are willing to countenance are two very different things. So are what FISA anticipates as a crystal-clear threat and what the murkier real world actually presents. It is because humans are not capable of foreseeing and legislating for all conceivable dangers that we need flexible executive power.
Thus, although the TSP does not comply with FISA, that did not make it illegal … at least until Hamdan drastically degraded the president’s constitutional prerogatives. The Bush administration has justified the program in two ways.
First, and most compelling, the president has an independent constitutional authority — indeed, obligation — to conduct electronic surveillance, especially in wartime, of persons he reasonably believes pose a threat to American lives. That power can be limited only by another constitutional provision, here, the Fourth Amendment. It cannot be cabined by a mere statute … or so we thought until Hamdan. The Fourth Amendment prohibits only unreasonable searches; it does not require probable cause or judicial warrants in all instances. Consequently, the administration argues, the TSP is within the president’s lawful authority because it is reasonable: It captures only international communications (i.e., where at least one party is outside the U.S. and thus there is no reasonable expectation of privacy that can be guaranteed by American law), and it targets only suspected al Qaeda operatives (i.e., not all international calls).
Second, assuming for argument’s sake that Congress’s approval is necessary before the president may exceed FISA’s limits in wartime, the administration contends that Congress has already given its approval. Specifically, the post-9/11 Authorization for the Use of Military Force (AUMF), by which Congress endorsed the president’s use of “all necessary and appropriate force,” validates all the traditional components of warfare. Importantly, this is not, as critics argue, a “blank check.” To be permissible under this theory, executive measures must be tightly related to the use of military force. Therefore, because penetrating enemy communications is as much a part of warfare as striking enemy targets, the AUMF authorizes eavesdropping on the enemy — and judges have no more competence to second-guess the eavesdropping than they would the striking.
THE TSP & HAMDAN
Into this mix drops the Hamdan bombshell. On its face, Hamdan is a case about military commissions, not electronic surveillance. Yet, its facts are saliently analogous to those of the TSP.
Military commissions, like national-security eavesdropping, originally derive from the president’s inherent authority under Article II of the Constitution. Later, legislation was enacted, in the Uniform Code of Military Justice (UCMJ) and its predecessor statutes, that arguably endeavored to limit military commissions, just as FISA legislation unquestionably undertook to restrict the executive’s ability to conduct surveillance of hostile foreign operatives.
Both situations thus present the question of whether Congress can taper presidential powers (such as conducting war, negotiating treaties, nominating judges, etc.) by passing statutes that touch on these Article II prerogatives. And in both situations, the Bush administration has argued that this question can and should be avoided — and with it, a constitutional controversy over the relative limits of executive and legislative power — by interpreting the AUMF as an implicit congressional imprimatur on all reasonable war-fighting tactics. In jettisoning military commissions, the Hamdan majority ruled against the administration on these issues. Logically, albeit very unfortunately, the court has simultaneously brushed aside both administration justifications for the TSP.
Regarding the administration’s AUMF theory, the five-member majority opined that because the AUMF does not expressly mention military tribunals, it cannot be construed to authorize them beyond any statutory limits Congress has enacted (in the UCMJ). “Repeals [of statutes] by implication,” Justice John Paul Stevens maintained, “are not favored.” This is no different from saying the AUMF did not authorize anything it failed to specify, at least if some other statute seems to have been affected.
That rationale, however, flies in the face of the AUMF ruling the Supreme Court made only two years ago. In Hamdi v. Rumsfeld (2004), the court held that even though there was no explicit reference in the AUMF to the detention of enemy combatants, such detentions were implicitly approved. The Hamdi Court reasoned that by using sweeping terms in the AUMF, Congress intended to authorize all the “important incident[s] of war.” And back then, the court said it did not matter that another federal statute, Section 4001 of the federal penal code, could be read to bar such detentions. The AUMF was deemed to override Section 4001 … by implication.
Hamdi aside, Justice Clarence Thomas observed in a withering Hamdan dissent that the majority’s flip-flop on the AUMF utterly disregarded the high Court’s 1981 decision in Dames & Moore v. Regan. There, the justices ruled that because “Congress cannot anticipate and legislate with regard to every action the President may find it necessary to take or every possible situation in which he might act,” the legislature’s failure to specify particular measures “does not, especially … in the areas of foreign policy and national security, imply congressional disapproval of action taken by the Executive.” (Emphasis added.)
Still, far more dire for separation-of-powers concerns, and thus for national security, is the Hamdan majority’s obliteration of inherent presidential authority, the administration’s first theory in support of the TSP. For the Supreme Court has now staked out a case for congressional supremacy that gives monstrous life to the Framers’ worst fears.
Under Hamdan’s logic, even if the president starts out with inherent Article II authority, that power — constitutional power — can now be rescinded by statute. The new theory is most expansively set out in the Hamdan concurrence of Justice Anthony Kennedy, who offered a “constitutional principle that congressional statutes can be controlling.”
LEGISLATIVE USURPATION — THE KENNEDY THEORY
With no discussion of the constitutional moorings of presidential power to direct wartime military commissions, Justice Kennedy began by asserting that “Congress, in the proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority.” He then dropped the hammer:
Where a statute provides the conditions for the exercise of a governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.
This sounds reassuring and is … preposterous. First of all, what if a president, or Congress, is wrong? What if the president signs a flawed law? That, to put it mildly, has been known to happen. The customary operation of the political branches is, well, political. It is always influenced by the pressures of the moment, which often are given precedence over what the Constitution objectively requires.
This is precisely why we insulate the federal courts from political pressures. Every now and then, a president (like Jimmy Carter) will overreact to the fleeting political currents of a scandal (like Watergate) by agreeing to a statute (like FISA) that cedes to an opportunistic legislature important presidential powers (like determining which enemy operatives should be monitored in wartime). It is in those times when we most need the Supreme Court to ignore the politics and remind us that a president’s ill-advised concessions can no more reduce Article II than Nixonian overreaches can inflate it. Constitutional authority is an objective, enduring fact. It does not shift with the winds of transitory politics.
Furthermore, the Framers were wise enough to know that standards for responding to crisis are different from those that should obtain in peacetime. They gave us a Constitution flexible enough to accommodate both. That is why Justice Oliver Wendell Holmes Jr. admonished (in a 1928 epigram echoed over a half century later by the Dames & Moore Court) that “[t]he great ordinances of the Constitution do not establish and divide fields of black and white.” They provide for more robust executive authority when the country is in danger, but don’t unambiguously preclude Congress from enacting statutes like FISA, which might function perfectly well most of the time.
The point is that standards developed in ordinary times, so admired by Justice Kennedy, may not be adequate to the challenges of a crisis. As Hamilton sagely observed in The Federalist No. 23, “The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” Yet, under the Kennedy theory, only by governing as if we were always in crisis could the political branches ensure that the powers specially needed for crisis would be available when threats finally arise. The Constitution requires no such thing, nor would that make for an America any of us would want to live in.
In any event, if the Kennedy theory takes root — as it seems to have in Hamdan — it is impossible to see how the TSP survives. Like military tribunals, electronic surveillance is a subject Congress carefully considered and has regulated for nearly 30 years. FISA, like any statute (including the ones the Supreme Court reserves its right to bypass), is the result of a “deliberative and reflective process engaging both of the political branches.” It has set “conditions for the exercise of a governmental power” since 1978. By Justice Kennedy’s lights, it does not matter if such statutes leave the nation more vulnerable than the unhindered Constitution would. We must live with them unless and until Congress acts to alter them.
Hamdan’s imperial Congress is not the system the Framers bequeathed us. For them, national security was dependent on vibrant, independent presidential authority, able to fend off what Hamilton (in The Federalist No. 73) aptly described as “[t]he propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments[.]” Thus did Madison (in The Federalist No. 48) warn of “the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.”
Such usurpations make us less safe. And the fact that Congress alone may be able to fix them is something to be alarmed about, not something to take comfort in.
— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.