National Security and the Article II Shell Game

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INTRODUCTION

This essay considers the important but under-explored link between politics and constitutional interpretation in the realm of national security. The school of constitutional interpretation at which it looks is "presidential exclusivity," which has gone from relative obscurity to prominence in the political branches and in public debate over the past several decades. Exclusivists deem the President to have substantial discretion under Article II of the Constitution "to override statutory limits that he believes interfere with his ability to protect national security." (1) Exclusivists often claim that they champion a return to the presidency's traditional role. (2) Yet other scholars, particularly David Barron and Martin Lederman in a two-article series in the Harvard Law Review, have shown that exclusivity has only recently become a presence, let alone a prominent and influential one, in the political branches. (3)

The first question that this essay takes up is why exclusivity has come so far over the past several decades in the political branches and why it has demonstrated appeal and staying power across parties. Such a question admittedly lends itself to no magic bullets, no one factor or handful of factors to explain everything. Yet logic suggests that political incentives must constitute at least an important piece of the puzzle, and that is the piece on which this essay focuses.

The upshot is this: Since roughly the end of World War II, with a notable exception in the post-Watergate period, it has increasingly been in the interests of congresspersons to be perceived as non-obstructionist toward whatever activities the President deems necessary to advance national security. To avoid the dreaded "weak on national security" label, and to balance that avoidance against the risk of seeming either a presidential lackey (particularly if the President is of a different party) or of being implicated should scandals emerge (think Iran Contra or Abu Ghraib), congresspersons are generally best off appearing tough and resolute, while retaining the ability to plead ignorance should things turn out badly. These incentives are captured in a statement reportedly made in 1973 by Senate Armed Services Committee Chairman John Stennis (D-Miss.) to CIA Director James Schlesinger: "'Just go ahead and do it, but I don't want to know!'" (4) Other former CIA Directors corroborate the ubiquity of this attitude among members of Congress. For example, former Director William Colby has said that "Congress is informed to the degree that Congress wants to be informed" and "'stressed ... that several [congressional] overseers had expressed little interest in briefings from the CIA.'" (5) Happily for the President, these incentives complement his own. If it is politically problematic for a congressperson to be perceived as "weak on national security," it is the kiss of death for a President or presidential candidate. The President must straddle the line in public perception between seeming willing to "do whatever it takes" to protect national security and being able to credibly invoke American ideals of fairness and the rule of law. Of course, the President is also deeply invested in avoiding scandal, or at minimum, retaining plausible deniability should scandal develop over national security activities.

Exclusivity, then, aligns with the political interests of nearly everyone in national political life. Embracing exclusivity enables Presidents and congresspersons to associate themselves with the iconic image of a tough President and to situate their allegiance to that image in a larger narrative of keeping faith with the Constitution. Furthermore, making or acquiescing in exclusivity claims enables one to suggest that the Constitution simply ties their hands, preventing them, for instance, from disclosing or demanding information or taking a clear, public stand on a controversial matter. While this is not the only explanation for exclusivity's rise in ubiquity and legitimacy among the political branches over the past several decades, it is an important part of the picture. …