What are the proper limits of a president’s authority under Article II of the U.S. Constitution? The question is put squarely before the public by the release of a secret 2003 legal memorandum written by John Yoo inquiring whether a president could, among other things, order a prisoner’s eye to be poked out.
Yoo takes the view that the president’s powers as commander in chief in wartime are virtually unlimited, and can ride over federal statutes banning interrogation techniques like assault and maiming. The Justice Department disavowed this doctrine nine months after it was enunciated, and that seems entirely appropriate. Even in wartime, our constitutional history makes fairly clear that there are limits on what a president can do.
But where exactly do those limits reside? And how exactly do they bear on another controversy involving executive power: President Bush’s decision in late 2001 to authorize the National Security Agency to launch the Terrorist Surveillance Program. This program involved the interception of international calls between al-Qaeda suspects abroad and persons in the United States? Because the program seemingly violated the plain language of the Foreign Intelligence Surveillance Act and, as some also argue, the Fourth Amendment prohibition on warrantless searches, was it also every bit as much an overreach of executive power as the actions outlined in John Yoo’s torture memo?
The answer, in my view, is emphatically no.
To begin with, strong arguments have been made that to the extent FISA limited the president’s power, it was itself an unconstitutional usurpation of the president’s power. At first glance this assertion seems to be merely a restatement of Yoo’s thesis that the president’s powers are unlimited. But the difference is that for very good reason warrantless wiretapping in wartime has a long history in this country. For very good reason, legalized torture does not.
The numerous examples of warrantless searches carried out for foreign-policy purposes, some under taken by the Clinton administration even after FISA was on the books (as in the case of Aldrich Ames), suggest that the NSA activities are well within the boundaries of constitutionally acceptable wartime measures. That, in any case, was also the consensus of a panel of retired FISA court judges who testified before the Senate Judiciary Committee in 2006.
Second, Congress was repeatedly briefed about the NSA program over a period of years. Although one or two members expressed reservations, no formal objection was ever lodged. When the program was disclosed to the public by the New York Times in December 2005, members of Congress from both parties voiced dismay that a valuable counterterrorism program had been compromised. The assent of Congress must carry considerable weight in any assessment of the legal status of the NSA program.
Reasonable men (and women) can disagree about this, of course. There was considerable disagreement about the NSA program within the Bush Justice Department itself. But such disagreement, one of the pretexts for the New York Times‘s decision to reveal the highly secret program, is not itself a sign of trouble but of health. If these matters were simple, there would be no need for an extensive legal bureaucracy to consider them. But in the final analysis a mere declaration by the New York Times or any other critic of the Bush administration that an intelligence program was illegal or unconstitutional does not make it so.
