Both Time and Newsweek are running cover stories on the looming debate over wartime separation of powers that was sparked by the National Security Agency domestic spying scandal. As we noted before Christmas at ePluribus Media Journal in “Smoke, Mirrors and War Powers,” the actions and decisions made over the NSA issue may determine the nature of the separation of powers among the legislative, executive and judicial branches of our federal government for decades — and centuries — to come.
The Crux of the Issue
Over the past week, the administration and its supporters have based their claims of “plenary” (absolute) executive wartime authority on two documents: the U.S. Constitution and the Authorization for Use of Military Force (AUMF) that Congress passed in 2001 the week after the 9/11 attacks.
To make a convincing case that Mr. Bush has virtually unlimited war powers based on the Constitution alone might take an extraordinary piece of lawyering. Article II makes the President commander in chief of the military, and allows him to make treaties, but only with consent of two thirds of the Senate. As enumerated constitutional executive war powers go, that’s about it. One can find any number of mentions of sweeping executive war powers in legislation and judicial opinion, but citing statutes and case law is like taking a stroll through a cherry orchard. You can pick whatever flavor suits your taste. For every allusion to the notion that a President has unquestionable decision-making power in time of war, you’ll find another one that says he doesn’t.
That’s where the 2001 AUMF comes in. Among other things, that legislation empowered Mr. Bush to:
…use all necessary and appropriate force against those nations, organizations, or persons he determines 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.”
The AUMF also states:
“… the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States[.]”
Hence, Congress finds itself in an embarrassing situation. It granted Mr. Bush inferred constitutional powers to fight terrorism, as well as authorizing him to use “all necessary and appropriate force.”
The Three Ring Circus Act
Congress will play the “legislative intent” card, and will argue that the term “appropriate force” was intended to bar Mr. Bush from exceeding his constitutional powers.
The administration will counter by saying Mr. Bush had constitutional power to do whatever he determined necessary to fight terrorism because Congress said he did when it passed the AUMF. The debate will go around and around until it augurs into the graveyard of the public’s attention span or winds up in the Supreme Court.
At that point, the Court would face a number of less than desirable options. If it refuses to hear the case, Chief Justice John Roberts will be accused of siding with the man who put him in his job. Taking the case and ruling in favor of Mr. Bush would produce the same result. If the court took the case and ruled that the AUMF was an unconstitutional law, it would reverse an earlier recent decision in which it recognized the AUMF’s legitimacy.
In the case of Hamdi v. Rumsfeld, the high court ruled that the AUMF’s “necessary and appropriate force” language gave Mr. Bush authority to hold an American citizen in detention as an “enemy combatant.”
Compared to holding U.S. citizens in prison without trial, what’s a little spying on them amount to? And if a President can imprison and spy on citizens under authority of the AUMF, what else can’t he do?
Branches and Sequels
There are, of course, other possible outcomes. The Supreme Court might rule, for example, that certain types of intelligence gathering are not allowed by the AUMF without court orders. Or the Congress could rewrite the AUMF to place specific restrictions on the President’s authorities in his conduct of the Global War on Terror. They could even repeal the AUMF entirely.
But any direct action by the legislature and the judiciary to limit Mr. Bush’s powers could have a devastating backlash effect. If any further terror attacks of 9/11 magnitude take place on American soil, the other two branches of government will be accused of having handcuffed the President, and any subsequent attempts at curbing executive powers will be doomed to failure in the court of public opinion.