Presidential Power

Attorney General Gonzales' admission last week that the President may have engaged in warrantless purely domestic spying presents a new insight into the President's view of inherent authority.  The President had previously argued he had authority to listen to telephone calls going into the U.S. from overseas, or originating in the U.S. and going overseas, without a warrant, or without complying with the requirements of FISA.  The President claimed that authority came both from the 2001 Congressional Authorization for the Use of Military Force against Al-Qaeda, and from his inherent authority as Commander in Chief.  While either of these arguments, if accepted, would expand presidential power, the international component to the telephone calls seemed to be an important part of the Administration's argument since the President is on stronger ground relying on his Commander in Chief authority in foreign affairs than domestic matters.  But Gonzales' statement made it clear that the Administration's view of Commander in Chief authority has very little to do with any distinction between domestic and foreign affairs. And as with the issue of the Presidential Signing Statements, the scope of inherent authority articulated by the Administration renders Congress virtually irrelevant to matters relating to war.

The Administration's position is that the "war on terror" justifies the President using whatever means he deems appropriate, in whatever venue he may find persons he believes are involved in terrorist activities.  As the President sees it, his power as Commander in Chief follows the terrorists wherever they are, including within the United States, even though we have laws for dealing with criminal acts within the U.S.  To say that when Congress passed the Authorization for Military Force Against Al-Qaeda, it authorized the President to decide who may be a terrorist in the U.S. and then remove them from the U.S. criminal justice system, blinks reality.  But the President's assertion that he has the inherent authority to ignore the Bill of Rights in the pursuit of possible terrorists, truly threatens basic constitutional principles.  It reduces the Bill of Rights and the laws passed by Congress to standards that can be ignored whenever the President decides national security requires different actions.  And from the Administration's position in the Gitmo cases, the President's inherent power allows him not only to ignore Congress, but also the courts.  That's why the Supreme Court's denial of cert last week in the Padilla case was so troubling.  The Court needs to confront these challenges to separation of powers, not avoid them.

Comments

[JimWestwood]

This is a huge worry, and it's a mystery why some responsible congressional Republicans aren't doing everything possible to rein in the Chief Executive. I'm not one to see a dark conspiracy here. I'm more inclined to think it's a combination of inside-the-Beltway political myopia (We have a job to do, and I will advise the President (to whom I owe undivided loyalty) to forge ahead in every conceivably lawful way), and a shortage of the civic virtue and broader vision that's supposed to characterize good Republicans. If there isn't a civilized uprising from within the administration and its supporters in Congress, I fear the poorly measured overreaction that could happen next January in a Democrat-controlled House that's more focused on getting even than on setting it right.