Thursday, July 10, 2008 - Posts
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sponsorship
Jack,
I want to add a small addendum to your post. There is a big difference between the president asking for a power and Congress granting it to him, and the president claiming a power for himself and Congress acquiescing. Critics of the Bush administration argue that Bush shot himself in the foot by failing, in the immediate aftermath of 9/11, to ask Congress for powers that it would have been happy enough to give him. Bush (or Cheney or Addington or whoever) supposedly refused to take this step because he (or they) didn't just want to obtain additional powers for counterterrorism activity; they also wanted to establish a precedent that the executive had the inherent or constitutional power to engage in these activities, at least in wartime, without congressional authorization. This would give the executive the power and flexibility it would need to address future threats, including and especially those not foreseen by Congress and hence not anticipated in existing law, and help restore the imperial presidency that was lost after Watergate.
The recent FISA amendment bill vindicates this strategy. Henceforth, presidents who contemplate law-breaking for national security purposes will look back to the Bush administration and see that the president got away with these activities, and indeed received the blessing of Congress-even in the most unpropitious political atmosphere imaginable. Private actors such as telephone companies will also in future look to this precedent, when they weigh the risks of defying the president versus the risks of defying Congress.
To be sure, Congress does not explicitly acknowledge the president's small-c constitutional new powers, and Congress tries to anticipate this behavior by providing in the new bill that the FISA procedure will be the "exclusive" means for surveillance. However, this is akin to stating that a precedent is not a precedent. Looking forward, presidents and private actors should anticipate the following, if they again break the surveillance law. (1) A great deal of political noise. (2) A bill that implicitly excuses them for what they have done. (3) And, in that same bill, a provision that further tells them not to do it again. I think they can live with that.
The critics, careful lawyers that they are, understood that Bush would have a stronger legal case for his counterterrorism policies if they had congressional imprimatur. But the critics simply did not share his other goal-which was to strengthen presidential power, which requires the president to defy Congress and then face it down. This, Bush has done. And it may be his most important legacy-a grand success for Cheney, Addington, Yoo, and the other presidential-power supporters in the administration.
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This week's passage and enactment of the FISA amendments (H.R. 6304) was not without controversy (obviously), but I was particularly struck by an aspect of the story that's received remarkably little attention: Sen. Arlen Specter sponsored an amendment (S.Amdt.5059) to the particularly controversial grant of immunity to telecoms that had worked with NSA; under his amendment, such immunity would have been contingent upon a court's determination that the telecom's activities were "provided in connection with an intelligence activity that violated the Constitution of the United States."
What a spectacle: a United States Senator -- a former prosecutor and the senior Republican on the Senate Judiciary Committee, no less! -- effectively declared himself to be incapable of determining what the Constitution does and does not proscribe. (Of course, Senator Specter was not alone: 37 senators voted for his ill-conceived amendment.)
Specter's attempt to pass the buck on this constitutional question should disturb both proponents and critics of the NSA surveillance activities at issue. That said, and as I've noted previously, Senator Specter's approach to the issue of the constitutionality of NSA surveillance activities is but one example of his tendency to (1) punt controversial issues to the courts, yet (2) loudly chastise the courts for "denigrat[ing] ... congressional authority" when the politics winds suit the change in approach.
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continue reading at Balkinization . . .
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Suppose you think that Congress should have more say over war-making, as James Baker, William Christopher, and their bipartisan commission do, and the president less. Would your new War Powers Consultation Act do this?
Our proposed statute would provide that the president must consult with Congress before ordering a "significant armed conflict" - defined as combat operations that last or are expected to last more than a week. To provide more clarity than the 1973 War Powers Resolution, our statute also defines what types of hostilities would not be considered significant armed conflicts - for example, training exercises, covert operations or missions to protect and rescue Americans abroad. If secrecy or other circumstances precluded prior consultation, then consultation - not just notification - would need to be undertaken within three days.
To guarantee that the president consults with a cross section of Congress, the act would create a joint Congressional committee made up of the leaders of the House and the Senate as well as the chairmen and ranking members of key committees. These are the members of Congress with whom the president would need to personally consult. Almost as important, the act would establish a permanent, bipartisan staff with access to all relevant intelligence and national-security information.
Congress would have obligations, too. Unless it declared war or otherwise expressly authorized a conflict, it would have to vote within 30 days on a resolution of approval. If the resolution of approval was defeated in either House, any member of Congress could propose a resolution of disapproval. Such a resolution would have the force of law, however, only if it were passed by both houses and signed by the president or the president's veto were overridden. If the resolution of disapproval did not survive the president's veto, Congress could express its opposition by, for example, using its internal rules to block future spending on the conflict.
It won't work, even in the unlikely event that a president would sign this bill, or Congress overrode a veto. Presidents won't consult; they'll inform, as they always have. If Congress, or members of Congress, try to persuade a court to compel the president to consult, the court will refuse, as courts always have, in such interbranch spats. If a member of Congress proposes a resolution of disapproval, it won't obtain the 2/3 vote necessary to overcome the president's inevitable veto, and even if it does, the president will ignore the resolution, as presidents always have. Congress could express its opposition by blocking future spending, but Congress has always had this option, and almost never used it. As for the permanent committee, the problem has never been that the president doesn't know whom to consult; it's that his judgment and Congress's is different, and Congress has no politically viable tools for preventing the president from taking us to war.
The War Powers Resolution, which this new bill is to supplant, didn't fail because it was unconstitutional. It failed because, over the years, the president has obtained the power to make war. That won't change until the public decides that it won't allow one person to have this power. Only a disaster would cause the public to make such a decision. Is Iraq such a disaster? No; Congress authorized that war, so even if the War Powers Consultation Act had been on the books when that war began, it wouldn't have made a bit of difference.
UPDATE: see Timothy Noah's discussion here. Noah says that Congress wouldn't take the power even if given to it. Maybe that's true, or often true, but there have been some cases -- Clinton's use of force in Kosovo comes to mind -- where Congress stepped to the plate, bravely made its disapproval known on the record for all to see, and -- was ignored.
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