Saturday, April 2, 2011

Do Obama and Bush Have Equivalent Views of the Executive Power?

Two Peas in the same Executive Power Pod?

Over at Salon, Glenn Greenwald chastises President Obama for supposedly embracing the same theory of Executive War Power purportedly embraced by President George W. Bush, a theory that Greenwald rejects. Greenwald heaps particular scorn on two different items expressing a strong view of the President's War Powers.

1) The memo, by the Bush Department of Justice, aruging that President Bush could intercept communications between Americans and individuals on foreign territory whenever the Attorney General found probable cause to believe that one or both of the individuals was affiliated with Al Qaeda. The memo, which justified the so-called "Terrorist Surveillance Program" ("TSP") argued that the President could order the interception of such communications without regard to the requirement, apparently contained in the Foreign Intelligence Surveillance Act ("FISA"), that the Attorney General first obtain a warrant from an Article III court. Imposing that requirement, the memo said, would infringe upon the President's power as Commander-in-Chief of the Armed Forces, which according to the memo included the power to gather battlefield intelligence in wartime.

2) A recent purported statement by Secretary of State Clinton that, even if Congress were to pass legislation countermanding the attack on Libya, the Administration would nonetheless continue with military action there. (I say "purported statement" because the statement allegedly occurred durring a classified briefing, the contents of which have been leaked. So far as I know the Administration has made no public statements to this effect.)

Greenwald finds these positions equivalent and both quite wrong. As he puts it:

"Initially, I defy anyone to identify any differences between the [Obama] administration's view of its own authority -- that it has the right to ignore Congressional restrictions on its war powers -- and the crux of Bush radicalism as expressed in the once-controversial memos by John Yoo and the Bush DOJ. There is none. That's why Yoo went to The Wall Street Journal to lavish praise on Obama's new war power theory: because it's Yoo's theory (as I was finishing this post, I saw that Adam Serwer makes a similar point today). If anything, one could argue that Yoo's theory of unilateral war-making was more reasonable, as it was at least tied to an actual attack on the U.S.: the 9/11 attacks. Here, the Obama administration is arrogating unto the President the unilateral, unrestrained right to start wars in all circumstances, whether or not the U.S. is attacked."

Greenwald also claims that those who supported President Bush's view of the Executive Power invoked FDR's internment of Americans of Japanese descent as precedent for that view. As he puts it:

"Then there's the notion that Presidents in the past have started similar wars without Congressional approval. That's certainly true, but so what? The fact that an act is commonplace isn't a defense or justification. That "defense" was also a common refrain of Bush followers to justify their leader's chronic unconstitutional acts and other forms of law-breaking: Lincoln suspended habeas corpus and FDR interned Japanese-Americans, so why are you upset that Bush is acting outside the law?"

One might add --- althought Greenwald does not mention it --- that President Clinton also asserted --- and exercised --- the unilateral power to attack a sovereign nation, that is, Serbia, against whom the United States and its NATO allies waged an air campaign for 78 days. Congress did not authorize the campaign. At the same time, I am not aware that President Clinton ever claimed that he would ignore an act of Congress that purported to countermand his decision to make war on Serbia.

In my view Greenwald overstates the equivalence between the position taken by President Obama (and Clinton) on the one hand, and that taken by President Bush, on the other. In some ways President Obama' claim of executive warmaking power is broader than that articulated, or at least pursued, by President Bush. But, there is also one sense in which President Obama's actual assertion of authority is less sweeping than President Bush's. Here is what I mean.

1. It is certainly true that President G.W. Bush, like various Presidents before him, made extravagant claims of unilateral power to initiate war with other countries. However, unlike President Clinton, who attacked Serbia without congressional authorization, and President Obama, who has attacked Libya without congressional authorization, President Bush in fact sought and obtained express legislative authorization to attack Al Qaeda as well as express legislative authorization to invade Iraq. Thus, while Presidents Clinton, Obama, and Bush all said similar things about the authority of the Executive branch to intiate war, only Presidents Clinton and Obama actually attacked other nations --- nations that did not threaten us it should be added --- without Congressional authorization. In this sense, any equivalence between President's Obama and Clinton on the one hand, and President Bush on the other, is illusory.

2. Given the Congressional authorization that President Bush sought and received to invade Afghanistan, known as the "Authoritzation to Use Military Force" or "AUMF," the analogy between the TSP and the attack on Libya (or Serbia) does not hold up. The AUMF authorized the President to "use all necessary and appropriate force" against Al Qaeda, thereby empowering the President to act as Commander-in-Chief of the Armed Forces in prosecuting a war against that terrorist organization. Neither President Clinton nor President Obama sought or received any authorization before making war on Serbia and Libya, respectively.

Article II of the Constitution expressly empowers the President to act as Commander-in-Chief, a power Joseph Story characterized as the power over "the direction of war" that is "obviously of an executive nature." Congress cannot strip the President of this power, any more than it can deprive him of the power to nominate a judge or pardon a felon. See Public Citizen v. Department of Justice, 491 U.S. 440 (1989) (Kennedy, J. concurring) (Congress cannot by legislation interfer a power --- there the power to nominate and appoint judges --- expressly committed to the President).

This power to "direct war" by setting military strategy and tactics presumably includes the power to gather the sort of strategic and battlefield intelligence necessary to inform such decisions. Such intelligence gathering would normally include the use of spy planes, satellites, drones, the interception of enemy radio traffic and so on. In World War II, for instance, the Navy relied heavily upon intercepted transmissions between German U-Boats and the German High Command and employed such intelligence, along with the results of aerial surveillance, to redirect convoys and target the submarines for destruction. To be sure, Congress does possess authority to make regulations governing the armed forces. Still, would anyone (aside from Greenwald apparently) argue that Congress, having declared war on Germany, and having appropriated funds for intelligence assets, then could by legislation order the Commander-in-Chief NOT to intercept such communications and/or NOT to conduct such aerial surveillance? And, if Congress could exercise such authority, could it not also, say, tell the President whom to appoint as the Supreme Commander over Allied forces preparing to invade Europe or, because it has the power to raise taxes, legislatively order the President not to veto a tax increase or not to pardon tax cheats? (Note that President Bush is not the first President to assert the power to decline to enforce unconstitutional statutes. As previously explained on this Blog (see here and here), Abraham Lincoln and James Madison each believed the President possessed such power, and Lincoln exercised it. Moreover, Woodrow Wilson exercised such power when he ignored a statutory requirement that he obtain Senatorial consent before firing a Postmaster, and the Supreme Court agreed with his interpretation of the Constitution in Myers v. United States, 272 U.S. 52 (1926).)

In short, assuming that Greenwald is correct (and I believe that he is) that a President cannot unilaterally initiate a non-defensive war, President Bush's claim that he could intercept Al Qaeda communications without adhering to FISA, after Congress had authorized war against Al Qaeda, is in no way similar to President Obama's decision to attack Libya without Congressional authorization. That is to say, while Article II of the Constitution does not empower the President to attack other nations without provocation, it does empower the President to act as Commander-in-Chief once Congress has authorized such an attack. Failing to enforce an unconstitutional statute is not equivalent to exercising a power --- the power to initiate war ---that only Congress possesses.

3. At the same time, there is one sense in which President Obama has been more deferential to Congress than was President Bush. That is, Congress has not purported by legislation or otherwise to prevent President Obama from attacking Libya. Thus, unlike President Bush (or, for that matter, Woodrow Wilson) President Obama has not ignored a Congressional statute.

4. Finally, Greenwald seems to imply that supporters of President Bush relied upon President Roosevelt's unconstitutional internment of Americans of Japanese descent to justify President Bush's refusal to adhere to FISA when intercepting Al Qaeda communications. (Perhaps I am misunderstanding Greenwald's meaning.) I am not aware that supporters of President Bush invoked FDR's unlawful internment to justify President Bush's policies. As should be clear at this point, there is plenty of other precedent and logic supporting President Bush's limited refusal to follow FISA, for instance.