The Framers of the Constitution were influenced by their English constitutional heritage with respect to individual rights and drew heavily upon British precedents. With respect to governmental structure, however, they rejected British precedent and created a separation of powers system based on a written constitution. The principles upon which they designed the Constitution included explicit limits on the powers of government and a separation of powers structure intended to prevent the accumulation of power in any one branch of government.
The system set up by the Framers has worked reasonably well for more than two centuries of political experience (with the exception of the Civil War). In the nineteenth century, the Congress tended to dominate policy making, except in cases of war. In the twentieth century, however, the presidency accumulated sufficient power to play a dominating role in both domestic and foreign policy. One of the important constitutional confrontations between the presidency and Congress over a range of issues occurred during the "imperial" presidencies of Lyndon Johnson and Richard Nixon. In reaction to the aggrandizement of power in the presidency, Congress asserted its own constitutional authority by enacting a number of laws intended to constrain presidential power.
It is this congressional reassertion of constitutional authority in the 1970s that Vice President Dick Cheney and President George W. Bush intended to reverse when they came to power in 2001. The administration, particularly Vice President Cheney, who had served as chief of staff to President Gerald Ford, felt that Congress overreacted to Vietnam and Watergate and hobbled presidential power in unconstitutional ways. He said,
The feeling I had [during the Ford years], and I think it's been borne out by history, that in the aftermath, especially of Vietnam and Watergate, that the balance shifted, if you will, that, in fact, the presidency was weakened, that there were congressional efforts to rein in and to place limits on presidential authority. (Walsh 2006)
A White House aide later articulated an attitude seemingly shared by many at the top levels of the Bush administration:
The powers of the presidency have been eroded and usurped to the breaking point. We are engaged in a new kind of war that cannot be fought by old methods. It can only be directed by a strong executive who alone is not subject to the conflicting pressures that legislators or judges face. The public understands and supports that unpleasant reality, whatever the media and intellectuals say. (Hoagland 2006) (1)
Those "conflicting pressures," of course, are the whole point of the separation of powers system. The atrocities of 9/11 gave President Bush the opportunity to achieve much of the expansion of executive power that he had sought since he became president. This article will take up four cases of extraordinary claims that President George W. Bush has made to executive authority under the Constitution: suspending the Geneva Conventions, denying habeas corpus appeals, National Security Agency (NSA) surveillance, and signing statements.
Suspending the Geneva Conventions and Torture
George W. Bush has been the only U.S. president to defend publicly the right of U.S. personnel to torture detainees. Probably the president did not intend for U.S. personnel to commit the egregious acts of torture that resulted in the death of many detainees. He did argue, however, that U.S. personnel needed to use aggressive techniques when interrogating prisoners captured in the war on terror. Despite declarations that "we do not torture," the aggressive interrogation procedures that were used by U.S. personnel (military, CIA, and contractors) in Guantanamo, Afghanistan, and Abu Ghraib are considered by most of the world to be torture. The Bush administration, in determining the legal basis of interrogation policy, used a narrow and technical definition of "torture" set forth in an Office of Legal Counsel memorandum of August 2002. President Bush vigorously argued that it was essential to the war on terror to continue to pursue "the program" of aggressive interrogation when he argued against the Detainee Treatment Act of 2005 and in favor of the Military Commissions Act of 2006.
Although other presidents have decided to withdraw from treaties, no other president has decided that the Geneva Conventions did not apply to U.S. treatment of captives in wartime. Despite presidential leeway in interpreting treaties, the Supreme Court in the Hamdan decision held that the provisions of the Geneva Convention Common Article 3 invalidated the military commissions that President Bush had set up to try suspected terrorists held at Guantanamo. This decision prompted the Bush administration to convince Congress to pass the Military Commissions Act of 2006.
Despite the occurrence of torture in many U.S. wars, President Bush's policy making with regard to enhanced interrogation practices (or torture, depending on the definition) is unprecedented in U.S. history. In contrast to a policy that encourages or condones torture, ad hoc torture that is against the law can be punished, and the principle that torture is forbidden can be upheld. However, a policy that encourages and provides governmental sanction for coercive interrogation can easily be interpreted to justify torture, as was evident at Guantanamo and Abu Ghraib.
The Decision to Suspend the Geneva Conventions
The question of whether President Bush should declare that the Geneva Conventions did not apply to al Qaeda or the Taliban was the subject of a series of memoranda in early 2002. The memos culminated in a recommendation from counsel to the president, Alberto Gonzales, that the president should suspend the Geneva Conventions for members of al Qaeda. The January 25, 2002, memo recommended that the Geneva Convention III on Treatment of Prisoners of War should not apply to al Qaeda and Taliban prisoners. He reasoned that the war on terror was "a new kind of war" and that the "new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners." (2) Gonzales argued that exempting captured al Qaeda or Taliban prisoners from treatment according to the Geneva Convention protections would preclude the prosecution of U.S. soldiers under the War Crimes Act (1997). (3)
Secretary of State Colin Powell objected to the reasoning of the, justice Department and Gonzales. In a memo of January 26, 2002, he argued that the drawbacks of deciding not to apply the Geneva Conventions outweighed the advantages because "it will reverse over a century of policy ... and undermine the protections of the law of war for our troops, both in this specific conflict and in general; It has a high cost in terms of negative international reaction ...; [and] It will undermine public support among critical allies." (4) Powell also noted that applying the convention "maintains POW status for U.S. forces ... and generally supports the U.S. objective of ensuring its forces are accorded protection under the Convention" (quoted in Greenberg and Dratel 2005, 124-25).
Despite Powell's memo, and in accord with the attorney general's and his counsel's recommendations, President Bush signed a memorandum on February 7, 2002, that stated: "Pursuant to my authority as Commander in Chief ... I ... determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a High Contracting Party to Geneva" (White House 2002). This determination denied suspected members of al Qaeda prisoner of war status and allowed the use of aggressive techniques of interrogation used by the CIA and military intelligence at Guantanamo that were later, in the fall of 2003, transferred to the prison at Abu Ghraib.
The changes in policy regarding the status of prisoners at Guantanamo upset top-level military lawyers in the Judge Advocate General Corps, including lawyers in the chairman of the Joint Chiefs of Staff's office. In 2003 a group of JAG officers went to visit the New York City Bar Association's Committee on International Human Rights. They were concerned about "a real risk of disaster," a concern that later proved to be prescient (Barry, Hirsh, and Isikoff 2004; Hersh 2004). (5)
Office of Legal Counsel Memoranda on Torture and Presidential Power
Shortly after 9/11, the Office of Legal Counsel of the Justice Department began work on legal aspects of the treatment of prisoners captured in the war on terror. Assistant Attorney General Jay S. Bybee, head of the Office of Legal Counsel, signed a memorandum written in part by John Yoo (2006, 171). The memo dealt with how U.S. personnel could avoid punishment under Title 18 of the U.S. Code (criminal law). This law, the War Crimes Act, implemented the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment for the United States (Klaidman 2004).
The Geneva Conventions require that "no physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever." (6) The Convention against Torture, as ratified by the United States, emphasizes that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture" (Bravin 2004). (7) The U.S. Torture Victims Protection Act defines torture as an "act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control" (18 U.S.C. Sec. 2340).
Part I of the Bybee memo interprets the above passage and construes the definition of torture narrowly; in doing so, it elevates the threshold of "severe pain" necessary to amount to torture: "We conclude that for an act to constitute torture, it must inflict pain that is ... equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death" (Bybee 2002, 1, 6). This narrow definition would allow a wide range of brutal actions that do not meet the exacting requirements specified in the memo. The memo specifically excludes from torture "cruel, inhuman, or degrading treatment or punishment," some examples of which are specified, such as wall standing, hooding, noise, sleep deprivation, and deprivation of food and drink. However, the memo did specify that some practices would be torture, such as severe beatings with clubs, threats of imminent death, threats of removing extremities, burning, electric shocks to genitalia, rape, or sexual assault (Bybee 2002, 15, 24, 28). (8)
In Section V, the memo argued that the president's commander-in-chief authority can overcome any law. "[T]he President enjoys complete discretion in the exercise of his Commander-in-Chief authority and in conducting operations against hostile forces" (Bybee 2002, 33). "Any effort to apply Section 2340A [of Title 18 U.S.C.] in a manner that interferes with the President's direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional" (Bybee 2002, 31).
The administration used the commander-in-chief clause to argue that a presidential policy takes precedence over public law. Thus, the administration argued, the president is not bound by the law, despite the Article II, section 3 provision of the Constitution that the president "shall take care that the Laws be faithfully executed." The implication was also that the commander-in-chief clause trumps the Article I, section 8 provision that Congress has the authority to "make Rules concerning Captures on Land and Water." (9)
These memoranda, along with other policy directives by Secretary of Defense Donald Rumsfeld and others, set the conditions for torture and abuse that occurred at Guantanamo, Abu Ghraib, and Bagram Air Force Base in Afghanistan. A number of official inquiries as well as external reports documented incidents of gross abuse and torture, some resulting in the deaths of detainees (Pfiffner 2005).
The McCain Amendment
Senator John McCain (R-AZ) endured five years as a prisoner of war in Vietnam and suffered severe torture. Thus, his publicly expressed outrage at reports of torture perpetrated by U.S. soldiers and civilians at Guantanamo, Abu Ghraib, and in Afghanistan carried a large measure of legitimacy. McCain introduced an amendment to the Department of Defense Appropriations Act for 2006 to ban torture by U.S. personnel, regardless of geographic location. Section 1003 of the Detainee Treatment Act of 2005 provides that "no individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment." (10)
Vice President Cheney led administration efforts in Congress to defeat the bill (White 2005). Cheney first tried to get the bill dropped entirely and, when that failed, to exempt the CIA from its provisions. President Bush threatened to veto the bill if it was passed. Their efforts, however, were unavailing, and the measure was passed with vetoproof majorities in both houses, 90 to 9 in the Senate and 308 to 122 in the House. In a compromise, McCain refused to change his wording but did agree to add provisions that would allow civilian U.S. personnel to use the same type of legal defense that is accorded to uniformed military personnel. (11)
When President Bush signed the bill, however, he issued a signing statement that declared: "The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power" (White House 2005). This statement signaled that President Bush did not feel bound by the law that he had just signed.
Thus President Bush, through his Office of Legal Council, claimed that he was not bound by the Geneva Conventions, that the commander-in-chief authority invalidated any laws about prisoners, and that he was not bound by the Detainee Treatment Act. These claims attempted to place President Bush outside the checks and balances of the separation of power system and the rule of law.
Military Commissions and Habeas Corpus
The Supreme Court delivered several setbacks to President Bush's claims to executive power. In Hamdi v. Rumsfeld (542 U.S. 507, 2004), the Court ruled that U.S. citizens had the right to challenge their imprisonment in court. In Rasul v. Bush (542 U.S. 466, 2004), the Court held that noncitizens could challenge their detentions through habeas corpus petitions. And in Hamdan v. Rumsfeld (126 S. Ct. 2749, 2006), the Court ruled that the military commissions set up by President Bush were unlawful because they were not based on U.S. law and that they violated Common Article 3 of the Geneva Conventions.
The Supreme Court's Hamdan Decision
Despite the Bush administration's arguments that U.S. courts did not have jurisdiction over Guantanamo detainees, that the president's commander-in-chief authority was sufficient to detain people indefinitely, and that detainees were receiving sufficient due process rights, the Supreme Court ruled against the administration in the abovementioned cases. In Hamdi, the Court declared that "the most elemental of liberty interests" is "the interest in being free from physical detention by one's own government ["without due process of law"].... history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat." Thus "[w]e reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law."
This requirement of due process does not apply to "initial captures on the battle field," but "is due only when the determination is made to continue to hold those who have been seized." In making these judgments, the Court asserted that, despite administration arguments to the contrary, it had jurisdiction over executive branch imprisonments and that it was willing to enforce constitutional rights even during a time of war. In Rasul v. Bush, the Court (deciding on the basis of law, not on constitutional grounds) held that noncitizens also had the right to challenge their imprisonment through a habeas corpus petition.
On the issue of whether the United States is permitted to try noncitizen enemy combatants by the military commissions that the president had established, the Supreme Court in Hamdan ruled in the negative, overturning a Court of Appeals decision. (12) Justice John Paul Stevens, writing for the Court, concluded that the military commissions and procedures established by President Bush were not authorized by the Constitution or any U.S. law, and thus the president had to comply with existing U.S. laws. He explained that the "structures and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949" (Hamdan v. Rumsfeld 2005, 4). The Court finally concluded: "Even assuming that Hamdan is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment" (Hamdan v, Rumsfeld 2005, 7).
Perhaps the most important principle established in these Supreme Court cases was Justice Sandra Day O'Connor's statement in the majority opinion in Hamdi: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." (13)
The Military Commissions Act of 2006
In order to overcome the roadblock that the Supreme Court decisions threw in the way of administration policy, President Bush sought legislation that would authorize the creation of military commissions and spell out limits on the rights of detainees. President Bush argued that the types of harsh interrogation methods that he termed "the program" were essential to the war on terror. The administration maintained that the proposed law would allow CIA interrogators more leeway than Common Article 3 of the Geneva Conventions allowed.
President Bush argued strongly for passage of the administration's proposal, saying that it would provide "intelligence professionals with the tools they need" (Smith 2006a, 2006b; Babington and Weisman 2006). He maintained that "the professionals will not step up unless there's clarity in the law.... I strongly recommend that this program go forward in order for us to be able to protect America" (Bush 2006). (14) The allowed interrogation techniques were not specified in the law, but were said to include prolonged sleep deprivation, stress positions, isolation, inducing hypothermia, excessive heat, and earsplitting noises. Members of Congress, including John McCain, also said that water-boarding (15) was not allowed by the Military Commissions Act, but their understanding was called into question when Vice President Cheney seemed to refute it (Vice President's Office 2006; Eggen 2006b; Lewis 2006). (16) On September 13, 2006, former Secretary of State Powell wrote a public letter to Senator McCain urging him to oppose the redefining of treatment allowed under Common Article 3, because "the world is beginning to doubt the moral basis of our fight against terrorism," and because "it would put our own troops at risk" (Reid 2006).
After several weeks of contentious debate between the two political parties, S3930 was passed by both houses of Congress. President Bush signed the Military Commissions Act of 2006 (PL 109-366) into law on October 17, 2006. The law gave the Bush administration most of what it wanted in dealing with detainees in ways that were prohibited by the Hamdan ruling. Most directly, the law authorized the president to establish military commissions to try alien detainees believed to be terrorists or unlawful enemy combatants. The vehement arguments made by President Bush that the Military Commissions Act was needed in order for the administration to continue to use "the program" of "robust" interrogation techniques constitute an admission that the administration had used them and saw them as essential to its approach to interrogation.
Importantly, the law denied alien enemy combatants access to the courts for writs of habeas corpus concerning "any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States" (Section 7). Appeals that were allowed were limited to issues concerning the constitutionality of the law itself and the administration's compliance with it, but not the evidentiary basis for the detainee's imprisonment or his treatment while in custody.
The law forbids the use of testimony obtained through "torture," and it specifically outlaws the more extreme forms of torture. The interrogation methods that can be used against the accused also exclude those methods that "amount to cruel, inhuman, or degrading treatment prohibited by Section 1003 of the Detainee Treatment Act of 2005" (Section 948r). Under the administration's interpretation, the law prohibits only techniques that "shock the conscience," rather than the stricter prohibition in Common Article 3 which specifically forbids "outrages upon personal dignity, in particular humiliating and degrading treatment" (Elsea 2004, 5; Smith 2006a). The Military Commissions Act allocated significant new powers to the president. It allows the president or secretary of defense to decide unilaterally who is an enemy combatant; it allows the executive to prosecute a person using coerced testimony; and it precludes any oversight of the actions of the executive by the judiciary (Shane and Liptak 2006). (17)
Critics complained that this language did not amount to acceptance of Common Article 3 of the Geneva Conventions and would allow very harsh treatment that could amount to torture. Techniques such as stress positions, sleep deprivation, sensory deprivation, isolation, or earsplitting noises could amount to torture, said critics, depending on the intensity and duration of their use. Statements obtained with these methods could be used against a detainee if the presiding officer decides that the "interests of justice would best be served" and that "the totality of the circumstances renders the statement reliable and possessing sufficient probative value" (Section 948r).
In addition, critics of the administration argued that the new law would allow U.S. forces to capture anyone declared an "enemy combatant" anywhere in the world, including those thought to have purposefully supported hostilities against U.S. co-belligerents, and hold them indefinitely. These suspects could be held without charges being filed against them and subjected to harsh interrogation techniques with no recourse to the courts for writs of habeas corpus. Critics also questioned whether the law could constitutionally deny the writ of habeas corpus to detainees, as the law purported to do (Shane and Liptak 2006; Zernike 2006; Grieve 2006; Fletcher 2006).
At the symbolic level, the Military Commissions Act sent the message to the world that the United States would continue to use harsh interrogation techniques (including waterboarding, according to Vice President Cheney's statements) that most countries considered to be torture and in violation of Common Article 3 of the Geneva Conventions. At the legal level, it purported to deny habeas corpus for most detainees and allowed harsh interrogation methods to be used. At the constitutional level, it represents a congressional ratification of executive authority to set up unilaterally military commissions, conduct trials, and sentence detainees with limited due process rights and no judicial or congressional oversight.
With the Military Commissions Act, President Bush was able to accomplish through law what he had previously asserted to be his own constitutional authority. Ratification by Congress of the president's authority to deny habeas corpus appeals and due process rights to detainees, however, does not necessarily make them constitutional. It does, however, make it more difficult for the Supreme Court to constrain the president absent a change in the law by Congress. In seeking congressional sanction for his actions, President Bush did not abandon his claim that he, as president, had the constitutional authority to undertake them unilaterally.
Warrantless Electronic Surveillance by the NSA
In December 2005, the New York Times revealed that the Bush administration had been secretly monitoring telephone calls and e-mails between suspected foreign terrorists and people within the domestic United States. The legal right of the executive branch to conduct electronic surveillance on foreign intelligence targets is not in dispute, but the right of the government to secretly eavesdrop or wiretap suspects within the United States without a warrant is limited by the Fourth Amendment and the law.
The Foreign Intelligence Surveillance Act
During the 1970s it was revealed that the Nixon administration conducted a range of warrantless wiretaps in order to monitor their political adversaries (Senate 1976, 1978; Schwarz and Huq 2007, 31; Bazan and Elsea 2005). (18) Congress responded to these abuses by amending Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which controlled electronic surveillance by the government. The act set procedures for seeking warrants for electronic surveillance and prohibited nonwarranted surveillance. Title III of the act provided an exception for certain national security surveillance undertaken under the "constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack ..., [and] to obtain foreign intelligence information deemed essential to the security of the United States" (Bazan and Elsea 2005, 17). (19)
That section of Title III was repealed by the Foreign Intelligence Surveillance Act of 1978 (FISA) (Cole et al. 2006). (20) It was amended to allow for the surveillance for foreign intelligence acquisition only as long as it was carried out pursuant to FISA. The amended act specified that FISA "shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted" (emphasis added) (Bazan and Elsea 2005). (21)
FISA provides for a special court for the consideration of warrants for domestic electronic surveillance, if probable cause is shown that the suspect is likely to be an agent of a foreign power. In requiring a warrant from the special FISA court, the law provides for three exceptions: (1) if the attorney general determines that the communication is among foreign powers or their agents and "there is no substantial likelihood that the surveillance will acquire the contents of any communication of which a United States person is a party"; (2) if the attorney general determines that there is insufficient time to obtain a warrant, but in such a case a FISA judge shall be notified within seventy-two hours (changed from twenty-four hours on December 28, 2001); and (3) surveillance can be conducted without a warrant for fifteen days after Congress declares war (Bazan and Elsea 2005, 25-26).
In confirming the New York Times report of the secret surveillance program, President Bush said that warrantless spying on domestic persons suspected of being in contact with terrorists was "a vital tool in our war against the terrorists" and that revealing the program damaged U.S. security (Sanger 2005). "It was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy" (Baker and Babington 2005).
It is not as though President Bush did not have the means to undertake NSA spying within the law. He could have sought warrants by the special FISA courts set up for that very purpose. If speed was of importance, the NSA could have carried out the surveillance and come back to the FISA court within seventy-two hours for retrospective authorization, as provided for by the law. Or if the law, as written, was too narrow to allow the kind of surveillance deemed necessary (e.g., data mining or call tagging), the president could have asked Congress to change the law (which had been amended several times since 9/11). But President Bush did none of these things; instead, he secretly ordered the NSA to conduct the surveillance and, when his actions were disclosed, he asserted that he had the constitutional authority to ignore the law.
President Bush's Arguments
The administration argued that getting a FISA warrant was too cumbersome and slow and thus it had to set up a program for the NSA to conduct the warrantless surveillance in secret. The record of the FISA court, however, does not seem to indicate that the administration had trouble obtaining warrants. From the time that the court was created in 1978 to the end of 2005, it issued 18,748 warrants and refused only 5 (Baker and Babington 2005). This is about as close to a rubber stamp as one could wish for. As for the problem of speed, if the need was immediate, the NSA could act immediately and come back to the court for authorization within seventy-two hours.
The administration also argued that it had consulted with Congress about the program, because it had informed the leadership and the chair and ranking members of the Senate and House intelligence committees. President Bush said, "Not only has it been reviewed by Justice Department officials, it's been reviewed by members of the United States Congress" (Lichtblau 2006). This argument was challenged, however, by Senator Jay Rockefeller, one of the few members who had been briefed on July 17, 2003. The members of Congress were sworn to secrecy and told that they could not inform their colleagues or staffers about the program. After the briefing, Rockefeller expressed his concern by handwriting a letter to Vice President Cheney and copying the note and putting a sealed copy in his safe as evidence that he had expressed his concern. He had no alternative route to raise concerns about what he saw as potentially illegal actions by the administration. He wrote to the vice president, "Clearly, the activities we discussed raise profound oversight issues" (Babington and Linzer 2005).
The administration also argued that the congressional Authorization to Use Military Force (AUMF) passed in a joint resolution after the September 11, 2001, attacks gave the president power by declaring that the president could
use all necessary and appropriate force against those nations, organizations, or persons he determined planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (Brimmett 2006) (22)
The act, however, made no mention of foreign or domestic surveillance in its wording. The argument of the administration that the AUMF overcomes the FISA law would entail the implication that Congress intended to repeal the section of the law that declared FISA to be "the exclusive means by which electronic surveillance ... may be conducted."
When Congress was considering the authorization for the president to use force, the administration tried to insert in the language of the resolution a provision that would have allowed that "necessary and appropriate force" could be applied "in the United States" as well as against the "nations, organizations, or persons" who were involved in the 9/11 attacks. This language was rejected by the Senate, undermining the argument that the AUMF intended to repeal FISA (Daschle 2005). In addition, because Congress explicitly provided for warrantless wiretaps for fifteen days subsequent to a declaration of war, how could a resolution on the use of force, which carries less legal or constitutional weight than a declaration of war, authorize wiretaps with no limitation? (23)
Attorney General Alberto Gonzales, in explaining why the administration did not seek to amend FISA to allow for the warrantless wiretaps, replied that he was advised that such an amendment was unlikely to pass Congress (Eggen 2006a). It is contradictory, however, to argue that Congress likely would not grant the needed authority for warrantless wiretaps if it were asked and that at the same time, Congress had approved presidential authority for warrantless wiretaps in passing the AUMF (Cole et al. 2006). It was also disclosed that Justice Department lawyers drafted legislative changes to the USA Patriot Act that would have provided a legal defense for government officials who wiretapped with "lawful authorization" from the president. There would be no need for such legislation if the president clearly had inherent authority to authorize such wiretaps. (24)
In addition to Senator Rockefeller's concerns, members of the Bush administration Justice Department also had serious reservations. When the White House sought approval of continued use of the program in 2004, Acting Attorney General James B. Comey (John Ashcroft's deputy) refused to grant his approval. As a result, Andrew Card, the chief of staff, and White House Counsel Gonzales made a special trip to the hospital to try to get Attorney General John Ashcroft (who was in the hospital recovering from major surgery) to approve the program. With a dramatic statement from his bed, Ashcroft, with Comey present, refused to overrule his deputy (Lichtblau and Risen 2006; Lichtblau 2006; Klaidman, Taylor, and Thomas 2006). Comey was then called to the White House and informed that the program would continue. Only the threat of resignations by Ashcroft, Comey, and several other high-level Justice Department officials convinced President Bush to heed the concerns of the lawyers. Only after President Bush convinced them that their concerns had been
met did they agree to the continuation of the program. What happened at the White House meeting has not been disclosed.
The question here is not whether there is a serious threat from terrorism or whether the government ought to be able to wiretap U.S. citizens without a warrant. It may or may not be good policy to allow the government to conduct such surveillance, but the constitutional process for making such decisions entails the legislative process and judicial interpretation of the law. President Bush claimed that, despite the laws enacted by Congress and duly signed by the president, he had inherent authority to ignore the law and set up a secret surveillance program that could act without warrants. The question is one of constitutional presidential authority versus the constitutional rights and duties of the other two branches. The Constitution does not give the president the authority to ignore the law. The wisdom of surveillance policy is a separate issue.
David Addington, Vice President Cheney's chief of staff and counsel, expressed his attitude toward the FISA court when he said: "We're one bomb away from getting rid of that obnoxious court" (Goldsmith 2007, 181). Jeffrey Goldsmith, director of the Office of Legal Counsel, who was involved with policy making regarding the Terrorist Surveillance Program, said, "After 9/11 they [Cheney and Addington] and other top officials in the administration dealt with FISA the way they dealt with other laws they didn't like: they blew through them in secret abased on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations" (Goldsmith 2007, 181). Goldsmith pointed out that even the NSA's lawyers were not allowed to examine the legal documents that justified the Terrorist Surveillance Program (Goldsmith 2007, 182).
Article I, section 1 of the Constitution begins: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Article II of the Constitution provides that "the executive Power shall be vested in a President of the United States of America" and that "the President shall be Commander in Chief of the Army and Navy of the United States." Despite the Article II provision that the president "shall take Care that the Laws be faithfully executed," signing statements have been used to argue that Article II provisions trump Article I of the Constitution.
The idea of presidential signing statements begins with the reasonable presumption that each coordinate branch of government should have a role in interpreting the Constitution and its own constitutional powers. As James Madison said in Federalist no. 49, "The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers." Thus, within the checks and balances of the Constitution, no single branch has the final say as to what the Constitution says or what public policy shall be. Each branch has a role in interpreting the Constitution, but each is subject to checks and balances from the other two branches.
Presidents since James Monroe have occasionally issued statements upon the signing of bills into law, although it was unusual for the first 150 years of the Republic. Most of these signing statements were rhetorical and meant to show presidential support for the legislation or occasionally to record publicly presidential reservations about the law. Rhetorical signing statements began to increase with the Truman administration. The more important use of signing statements, however, has been to register questions about the constitutionality of the law in question. The use of signing statements for this purpose began to be taken seriously during the Ford and Carter presidencies, but took a significant jump during the Reagan presidency, during which they were used in a strategic manner to signify presidential disapproval of parts of a law that he was signing (Kelley 2002).
The Reagan administration took a step toward changing the status of signing statements in 1986 when it arranged with West Publishing Company to publish signing statements in the Legislative History section of The United States Congressional Code and Administrative News, which provides information about the background for the development of a law that might be relevant to its future interpretation by courts. Attorney General Edwin Meese explained that the purpose of the administration's action was so that the president's thinking when signing a bill into law "will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means" (Garber and Wimmer 1987).
Such a purpose seems reasonable, because it merely calls to the attention of the courts the president's perspective on the law. This benign interpretation of signing statements, however, was undercut by Meese's later statement of the intent of signing statements in 2001, in which he said that, in addition to expressing the president's view of a law, it would indicate "those provisions of the law that might not be enforced" (Kelley 2002). There is a big difference, however, between expressing an opinion on the meaning of a law and refusing to enforce the provisions of a law of which a president disapproves. Presidents Carter, Reagan, G. H. W. Bush, and Clinton occasionally used signing statements to indicate that they had reservations about the laws they were signing and might not enforce.
President George W. Bush, however, has used signing statements to an unprecedented extent. He issued more than 1,000 constitutional challenges to provisions in 150 laws in his first six years in office (Kelley 2007; American Bar Association 2006). He also used signing statements to assert the unilateral and unreviewable right of the executive to choose which provisions of laws to enforce and which to ignore. For instance, he has used them to indicate that he does not feel bound by all of the provisions of laws regarding: reporting to Congress pursuant to the Patriot Act, the torture of prisoners, whistleblower protections for the Department of Energy, the number of U.S. troops in Colombia, the use of illegally gathered intelligence, and the publication of educational data gathered by the Department of Education (Savage 2006, 2007, 228-49).
One problem with signing statements of this sort is that they can accomplish what the Framers decided not to give the president: an absolute veto. The constitutional process calls for bills to be passed by Congress and presented to the president for his signature or veto. However, a signing statement, in effect, allows the president to sign the bill and later to decide whether he does not want to comply with part of the law. It also allows the president to achieve, in effect, an item veto, which the Supreme Court has declared unconstitutional. In the passage of legislation, members of Congress often vote for a bill because of assurances that certain provisions have meaning. However, if the executive can unilaterally decide not to enforce whatever portion of laws it believes infringe on its constitutional power, the votes of a majority of the members of Congress are effectively nullified.
The belief that he could selectively enforce the law pursuant to his signing statements may be part of the reason that President Bush did not issue any vetoes for the first five and a half years of his administration, a record unmatched since Thomas Jefferson. An example (discussed above) of the potentially unchecked nature of signing statements occurred when President Bush strongly opposed and threatened to veto the Detainee Treatment Act, sponsored by Senator McCain, forbidding torture. It was passed by both houses of Congress by veto-proof majorities. President Bush signed the law in a ceremony at the White House with John McCain present, symbolizing the administration's intent not to use torture in order to obtain information from prisoners.
In his accompanying signing statement, however, President Bush indicated that he did not feel bound by the law and that he would enforce the law "in a manner consistent with the constitutional authority of the President" (White House 2005). Thus, the president reserved for himself the right to ignore the law when he deemed it to conflict with his commander-in-chief power, but he avoided the constitutional process of having to subject his veto to a possible override by Congress. Because the administration had previously asserted that Congress could not limit the way in which the executive treated prisoners, the implication was that it would not consider itself bound by the provisions of the law. The administration also seemed to claim in the signing statement that it could avoid judicial review.
The implications of these sweeping claims to presidential authority are profound and undermine the very meaning of the rule of law. Despite the Constitution's granting of lawmaking power to the Congress, the Bush administration maintained that executive authority and the commander-in-chief clause can overcome virtually any law that constrains the executive. President Bush was thus claiming unilateral control of the laws. If the executive claims that it is not subject to the law as it is written but can pick and choose which provisions to enforce, it is essentially claiming the unitary power to say what the law is. The take care clause of Article II can thus be effectively nullified.
Even though some limited circumstances may occur in which the president is not bound by a law, expanding that limited, legitimate practice to more than a thousand threats to not execute the law constitutes an arrogation of power by the president. (25) The Constitution does not give the president the option to decide not to faithfully execute the law. If there is a dispute about the interpretation of a law, the interaction of the three branches in the constitutional process is the appropriate way to settle the issue. The politics of passage, the choice to veto or not, and the right to challenge laws in court all are legitimate ways to deal with differences in interpretation. But the assertion by the executive that it alone has the authority to interpret the law and that it will enforce the law at its own discretion threatens the constitutional balance set up by the Constitution.
Even if one posits that President Bush has not and would not abuse his executive power, his claim to be able to ignore the law, if allowed to stand, would constitute a dangerous precedent that future presidents might use to abuse their power. Joel Aberbach points out that "in the end, this is not a partisan issue, for someday the Democrats will have unified control, and even that somewhat-less-disciplined party might countenance a government of the type Bush and Cheney have apparently structured" (Aberbach 2007). Madison argues in Federalist no. 10, "Enlightened statesmen will not always be at the helm." Thinking constitutionally means looking ahead and realizing that future executives will likely claim the same authority as their predecessors. Claims to executive power ratchet up; they do not swing like a pendulum unless the other two branches protect their own constitutional authorities.
The rule of law is fundamental to a free society and to democracy, because neither can exist without it. As Thomas Paine argued in Common Sense, "In America THE LAW IS KING. For as in absolute governments the King is law" (emphasis in original). Madison put it this way in Federalist no. 47: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." In each of the following cases of claims to constitutional authority, President Bush was asserting that he alone could exercise the authority of each of the three branches:
1. Geneva Conventions and torture: President Bush acted as
lawmaker in suspending the treaty, which according to Article VI of the Constitution is "the supreme Law of the Land,"
executive in carrying out the policy by interrogating prisoners with harsh interrogation practices, and
judge by keeping the proceedings secret and asserting that any appeal could only be to him and that the courts had no jurisdiction to hear appeals.
2. Military tribunals: President Bush acted as
lawmaker in creating the commissions himself, not in accord with enacted laws,
executive in detaining suspects in prisons, and
judge in conducting the trials, imposing sentences, and serving as the final appeal.
3. Denying habeas corpus to detainees: President Bush acted as
lawmaker in suspending habeas corpus, which authority the Constitution gives to Congress,
executive in imprisoning detainees and not allowing them to appeal for writs of habeas corpus and denying them the aid of counsel (until forced to by the Supreme Court), and
judge in asserting that executive branch determinations of detainee status were final and that appeals could only be within the executive branch.
4. NSA warrantless wiretapping: President Bush acted as
lawmaker by determining that he could ignore the regularly enacted law and impose his own rules in order to conduct surveillance in the United States,
executive in ordering the NSA to carry out his policies, and
judge by arguing that it was his inherent right as president to do it in secret and avoid obtaining warrants from the FISA court.
5. Signing statements: President Bush was
undermining the separation of powers and the rule of law itself by claiming the authority to ignore those parts of the law that he claimed impinged on his own prerogatives and refusing to accept the legitimacy of either Congress or the courts to limit his authority.
The president should have enough power to accomplish reasonable policy goals, but not enough to override the other two branches unilaterally, acting merely on the basis of his own judgment. In these cases of extraordinary claims to executive authority, President Bush was claiming that the checks and balances in the Constitution were not binding on him. The U.S. Constitution created a system in which the concentration of power in one branch could be countered by actions of the other two branches. Congress and the courts still may act to undo some of President Bush's extraordinary assertions of executive authority, but his claims have severely challenged the balance of constitutional authority. The principles of constitutionalism and the rule of law underpin the foundations of the U.S. polity. Insofar as President Bush, in cases such as these, refused to acknowledge the constitutional limits on his executive authority, he undermined both of these fundamental principles.
AUTHOR'S NOTE: I am grateful to James Dunkerley, dean of the Institute for the Study of the Americas, and Nicholas Mann, dean of the School of Advanced Study at the University of London for their hospitality during my six-month visit with them in 2007 as S. T. Lee Professorial Fellow. Other colleagues in the United States and the United Kingdom gave me helpful comments and advice as this article was being prepared, and I would like to thank Joel Aberbach, Sharrar Ali, Niels Bjerre-Poulson, Mary Boardman, Nigel Bowles, Lara M. Brown, Brian Cook, Philip Davies, John Dumbrell, George Edwards, Lou Fisher. Hugh Heclo, Jon Herbert, Matthew Holden, Don Kash, Nancy Kassop, Jeremy Mayer, Iwan Morgan, Dick Pious, Paul Quirk, Jon Roper, Richard Rose, Herman Schwartz, Bob Spitzer, and Jeffrey Weinberg.
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JAMES P. PFIFFNER
George Mason University
(1.) Source: White House aide defending U.S. policies on Guantanamo Bay prisoners, secret renditions, and warrantless eavesdropping in a conversation with Jim Hoagland.
(2.) Memorandum for the President (January 25, 2002) from Alberto R. Gonzales, Subject: Decision RE Application of the Geneva Convention on Prisoners of War to the Conflict with al Qaeda and the Taliban. According to Newsweek, the memo was "actually" written by David Addington, Vice President Cheney's legal aide (Klaidman 2004). Gonzales has been criticized in the press for saying that the "new paradigm" renders the Geneva limitations "quaint." However, the context of his use of the word "quaint" is not as damning as excerpting the word makes it seem. The end of the sentence reads: "renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e. advance of monthly pay), athletic uniforms, and scientific instruments." Whether this is a fair representation of the Geneva requirements is a separate issue.
(3.) The U.S. War Crimes Act (18 U.S.C. par. 2441 [Sup. III 1997]). Section 2441 of the War Crimes Act defines "war crimes" as a "grave breach" of the Geneva Conventions, which includes "willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health ... or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention."
(4.) Memorandum TO: Counsel to the President and Assistant to the President for National Security Affairs, FROM: Colin L. Powell (January 26, 2002), SUBJECT: Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan (quoted in Greenberg and Dratel 2005, 122-25). Many of the memoranda and oral directives included statements that detainees were to be treated "humanely" despite the more aggressive interrogation techniques to which they could be subjected. The problem was that, if the detainees were in fact treated humanely, it would be more difficult to extract information from them. Thus, these statements must have been considered to be pro forma, while the overall thrust of the directives was that detainees were to be subject to more aggressive interrogation techniques that were outside Geneva Convention limits.
(5.) For a detailed analysis of the legal issues involved in the treatment of prisoners and the international and legal obligations of the United States regarding detainees, see Robert K. Goldman and Brian D. Tittemore, "Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights under International Humanitarian and Human Rights Law," American Society of International Law Task Force Paper, Washington, DC, 2002. See also Jennifer K. Elsea, "Lawfulness of Interrogation Techniques under the Geneva Conventions," Congressional Research Service Report to Congress (RL32567), Washington, DC, September 8, 2004; Jennifer K. Elsea, "U.S. Treatment of Prisoners in Iraq: Selected Legal Issues," Congressional Research Service Report for Congress (RL32395), Washington, DC, December 2, 2004; and L. C. Green, The Contemporary Law of Armed Conflict (New York: Manchester University Press, 1993). The skeptical attitude of many in the professional military was reflected in a 2007 op-ed piece by former Generals Charles C. Krulak (former commandant of the Marine Corps) and Joseph P. Hoar (former chief of Central Command): "As has happened with every other nation that has tried to engage in a little bit of torture--only for the toughest cases, only when nothing else works--the abuse spread like wildfire, and every captured prisoner became the key to defusing a potential ticking time bomb. Our soldiers in Iraq confront real 'ticking time bomb' situations every day, in the form of improvised explosive devices, and any degree of 'flexibility' about torture at the top drops down the chain of command like a stone--the rare exception fast becoming the rule." Washington Post, May 17, 2007, p. A17.
(6.) Article 17, paragraph 4.
(7.) United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (General Assembly Resolution 39/46, Annex, 39 U.N. GAOR Sup. no. 51, U.N. Doc. A.39/51, 1984). The Convention against Torture defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession."
(8.) According to the memo, for the law to apply, the torturer must have the "specific intent to inflict severe pain" and it must be his "precise objective" (Bybee 2002, 3). "Thus, even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith." Thus one could inflict pain that amounted to torture, but not be guilty of torture if the main objective was, for instance, to extract information rather than to cause pain. This reasoning borders on sophistry. On December 30, 2004, the Bybee memo was superseded "in its entirety" by Memorandum for James B. Comey, Deputy Attorney General from Acting Assistant Attorney General Daniel Levin Re: Legal Standards Applicable under 18 U.S.C. par. 2340-2340A. The memo did not address the commander-in-chief powers of the president because it was "unnecessary" (p. 2).
(9.) Article VI of the Constitution also provides that "all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land."
(10.) The Detainee Treatment Act defines cruel, inhuman, or degrading treatment as "the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment of Punishment done at New York, December 10, 1984."
(11.) That is, if the U.S. person undertakes interrogation practices that "were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful."
(12.) The commissions were established by Military Order of November 13, 2001, "Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism." Available from http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html.
(13.) In remarks after she had retired from the Supreme Court, Justice O'Connor said about the intimidation of federal judges, "We must be ever-vigilant against those who would strongarm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings." Her remarks were reported by Nina Totenberg of National Public Radio according to The Raw Story (Totenberg 2006).
(14.) The uniformed military, however, were not eager for the bill to pass. Major General Scott C. Black, the judge advocate general of the Army, said that "further redefinition" of the Geneva Conventions "is unnecessary and could be seen as a weakening of our treaty obligations, rather than a reinforcement of the standards of treatment" (Baker 2006).
(15.) Waterboarding is a technique of interrogation in which a person is bound to a flat board and his head submerged in water with a soaked cloth over his mouth (or water poured over the cloth) until the person cannot breath sufficient air and is convinced he is drowning. A Japanese officer, Yukio Asano, was sentenced to fifteen years at hard labor for waterboarding an American in World War II (Pincus 2006; Shane and Liptak 2006).
(16.) Vice President Cheney was interviewed in the White House by a reporter who asked: "Would you agree that a dunk in water [of a suspected terrorist] is a no-brainer if it can save lives?" Cheney replied: "It's a no-brainer for me.... We don't torture.... But the fact is, you can have a fairly robust interrogation program without torture, and we need to be able to do that. And thanks to the leadership of the President now, and the action of the Congress, we have that authority, and we are able to continue to [sic] Program" (emphasis added). Asked in another question about "dunking a terrorist in water," Cheney replied: "I do agree. And I think the terrorist threat, for example, with respect to our ability to interrogate high value detainees like Khalid Sheikh Mohammed, that's been a very important tool that we've had to be able to secure the nation" (emphasis added). The antecedent to the word "that" and "that's" in the vice president's statements is clearly "dunking a terrorist in water," indicating that the Bush administration does not consider waterboarding to be torture (Vice President's Office 2006).
(17.) It does allow appeals concerning the constitutionality of the law itself and whether the administration has complied with it.
(18.) House Report no. 95-1283, pp. 15-21, as cited in Bazan and Elsea (2005, 12-13).
(19.) 82 Star. 214, 18 U.S. par. 2511(3), as cited in Bazan and Elsea (2005, 17).
(20.) Public Law 95-511, 92 Stat. 1783, as cited in Cole et al. (2006).
(21.) 18 U.S.C. par. 2511(2)(f), Public Law 95-511, 92 Stat. 1783, as quoted in Bazan and Elsea (2005, 15).
(22.) Authorization for Use of Military Force, Public Law 107-40, 115 Stat. 224 (2001), passed the House and Senate on September 14, 2001, and signed by the president on September 18, 2001.
(23.) The NSA surveillance revelations also raised the issue of whether President Bush was truthful in reassuring questioners about government surveillance and civil liberties. In remarks in Buffalo, New York on April 20, 2004, President Bush said: "Now, by the way, any time you hear the United States government talking about wiretap, it requires--a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution" (Bush 2004).
(24.) Justice Department spokespersons said that the drafts were not intended to affect NSA spying and that the proposals were not presented to the attorney general or the White House (Eggen 2006a).
(25.) For instance, if a law contains a one-house legislative veto provision or a clearly unconstitutional infringement on the president's appointment power.
James P. Pfiffner is a university professor in the School of Public Policy at George Mason University. He has written or edited ten books on the presidency and American national government, including The Strategic Presidency, The Modern Presidency, and The Character Factor.…