Where’s Congress In This Power Play?

The Washington Post Sunday - - Outlook - By Fred­er­ick A.O. Sch­warz Jr. and Aziz Huq

Thirty years ago, a Se­nate com­mit­tee headed by the late Sen. Frank Church ex­posed wide­spread abuses by law en­force­ment and intelligence agen­cies dat­ing to the Franklin D. Roo­sevelt ad­min­is­tra­tion. In the name of “na­tional se­cu­rity,” the FBI, CIA and Na­tional Se­cu­rity Agency spied on politi­cians, protest groups and civil rights ac­tivists; il­le­gally opened mail; and spon­sored scores of covert op­er­a­tions abroad, many of which im­per­iled democ­racy in for­eign coun­tries.

The sheer mag­ni­tude of the abuses un­earthed by the com­mit­tee shocked the na­tion, led to broad re­forms and em­bar­rassed Congress, whose feck­less over­sight over decades was plain for all to see. As a re­sult, Congress re­quired pres­i­dents to re­port covert op­er­a­tions to per­ma­nent new intelligence com­mit- tees and cre­ated the For­eign Intelligence Sur­veil­lance Act, which squarely re­pu­di­ated the idea of in­her­ent ex­ec­u­tive power to spy on Amer­i­cans with­out ob­tain­ing war­rants. New guide­lines were is­sued for FBI in­ves­ti­ga­tions.

For those of us in­volved in that ef­fort to bring ac­count­abil­ity and sun­shine back to gov­ern­ment, it is dis­cour­ag­ing to read daily ac­counts of a new era of intelligence power abuses, grow­ing out of a “war” on ter­ror­ism that is in­voked to jus­tify al­most any se­cret mea­sure.

In the past five years, we have learned that the ex­ec­u­tive branch has cir­cum­vented fed­eral bans on tor­ture, aban­doned the Geneva Con­ven­tions, mon­i­tored Amer­i­cans’ phone con­ver­sa­tions with­out the re­quired war­rants and “out­sourced” tor­ture through “ex­tra­or­di­nary ren­di­tion” to sev­eral for­eign gov­ern­ments. Re­cently we learned that the FBI reck­lessly abused its power to se­cure doc­u­ments through emer­gency na­tional se­cu­rity let­ters.

Once again, con­gres­sional over­sight of the grow­ing na­tional se­cu­rity, intelligence and law en­force­ment es­tab­lish­ments has fallen short. But there are now ob­sta­cles to reestab­lish­ing ef­fec­tive over­sight that did not ex­ist three decades ago.

BFor one thing, the coun­try and Congress are far more po­lar­ized. There was a high de­gree of bi­par­ti­san unity on the Church Com­mit­tee, and Repub­li­can Pres­i­dent Ger­ald R. Ford gen­er­ally co­op­er­ated in the ef­fort to ex­pose abuses and cre­ate reme­dies. The com­mit­tee, for­mally known as the Se­lect Com­mit­tee to Study Gov­ern­men­tal Op­er­a­tions with Re­spect to Intelligence Ac­tiv­i­ties, was cre­ated in Water­gate’s wake and had a Demo­cratic ma­jor­ity. But it fo­cused on abuses by ad­min­is­tra­tions of both par­ties. In­deed, its in­quiries re­vealed that three Demo­cratic icons, Pres­i­dents Roo­sevelt, John F. Kennedy and Lyn­don B. John­son, all knew about or ap­proved ques­tion­able ac­tiv­i­ties. Howard Baker Jr., a se­nior Se­nate Repub­li­can who served on the panel, dis­agreed with some pro­pos­als but said it had car­ried out its task “re­spon­si­bly and thor­oughly.” ut Congress now faces an even big­ger prob­lem than height­ened par­ti­san­ship. Past pres­i­dents have never claimed that the Con­sti­tu­tion gave them power to set aside statutes per­ma­nently. (Richard M. Nixon was no longer in of­fice when he de­clared: “When the pres­i­dent does it, it means that it is not il­le­gal.”) The Bush ad­min­is­tra­tion, how­ever, ap­pears com­mit­ted to elim­i­nat­ing ju­di­cial and con­gres­sional over­sight of ex­ec­u­tive ac­tion at all costs. This per­ni­cious idea, at odds with the Founders’ vi­sion of checks and bal­ances, lies at the heart of many of to­day’s abuses.

In some ways, the “Magna Carta” of this com­bat­ive ide­ol­ogy was the mi­nor­ity re­port is­sued by eight of the Repub­li­cans on the Iran-con­tra com­mit­tee that in­ves­ti­gated the Rea­gan ad­min­is­tra­tion’s han­dling of covert arms sales to Iran and the se­cret — and il­le­gal — ef­fort to fi­nance the con­tra rebels fight­ing in Nicaragua.

Among the re­port’s sign­ers was then-Rep. Dick Cheney, who led the group. They re­jected the idea that sep­a­ra­tion of pow­ers would “pre­clude the ex­er­cise of ar­bi­trary power” and ar­gued that the pres­i­dent needed to act ex­pe­di­tiously and se­cretly to achieve Amer­i­can aims in a dan­ger­ous world. Their so­lu­tion to ex­ec­u­tive abuse was to wa­ter down con­gres­sional and ju­di­cial over­sight. The mi­nor­ity re­port re­ferred ap- prov­ingly to “monar­chi­cal no­tions of pre­rog­a­tive that will per­mit [pres­i­dents] to ex­ceed the law” if Congress tried to ex­er­cise over­sight on na­tional se­cu­rity mat­ters. Cheney later in­sisted in an in­ter­view that “you have to pre­serve the pre­rog­a­tive of the pres­i­dent in ex­tra­or­di­nary cir­cum­stances,” by not no­ti­fy­ing Congress of intelligence op­er­a­tions.

Cheney’s views have not shifted since then. In De­cem­ber 2005, he re­ferred re­porters to the mi­nor­ity re­port for his view of “the pres­i­dent’s pre­rog­a­tives.” And for the first time in U.S. his­tory, ex­ec­u­tive branch lawyers have ar­gued that the pres­i­dent has power to “sus­pend” laws per­ma­nently in the name of na­tional se­cu­rity. In sign­ing state­ments for new laws, the chief ex­ec­u­tive has re­peat­edly as­serted this broad power. In in­ter­nal le­gal opin­ions on tor­ture, Jus­tice De­part­ment lawyers have pro­posed that the pres­i­dent can set aside laws that con­flict with his ideas of na­tional se­cu­rity. Un­der this logic, laws against tor­ture, war­rant­less sur­veil­lance and trans­fers of de­tainees to gov­ern­ments that tor­ture all buckle.

We do not know pre­cisely which laws were turned aside, be­cause the ad­min­is­tra­tion still re­fuses to re­veal Jus­tice De­part­ment opin­ions that de­fine what laws the ex- ec­u­tive will and will not fol­low. Such se­crecy, which has noth­ing to do with the le­git­i­mate pro­tec­tion of sources and meth­ods of intelligence agen­cies, can­not be jus­ti­fied.

This cri­sis of con­sti­tu­tional faith did not be­gin with the cur­rent Repub­li­can ad­min­is­tra­tion. Af­ter a burst of re­forms in the 1970s, Congress quickly fell back into Cold War ap­a­thy, find­ing it eas­ier to let stan­dards lapse than to hold the ex­ec­u­tive branch to ac­count. The Iran-con­tra scan­dal was the first warn­ing that the Church Com­mit­tee’s lessons had been side­lined by the ex­ec­u­tive branch. At­tor­ney gen­er­als is­sued looser guide­lines on FBI in­ves­ti­ga­tions. The White House be­came a keen user of uni­lat­eral ex­ec­u­tive or­ders that by­passed Congress.

Pres­i­dent Bill Clin­ton’s stint in the White House proved no ex­cep­tion. He broadly in­ter­preted his war pow­ers and ag­gres­sively used ex­ec­u­tive or­ders to by­pass Congress — for ex­am­ple, ig­nor­ing a House vote op­pos­ing in­ter­ven­tion in Kosovo. Clin­ton is­sued 107 pres­i­den­tial di­rec­tives on pol­icy, ac­cord­ing to Har­vard Law School Dean Elena Ka­gan. Rea­gan is­sued nine and Ge­orge H.W. Bush just four.

To­day, the ar­gu­ment for unchecked presi- den­tial power is starkly dif­fer­ent from ear­lier in­vo­ca­tions. While pre­vi­ous ad­min­is­tra­tions have vi­o­lated civil lib­er­ties — as in the post-World War I Palmer raids and the in­car­cer­a­tion of Ja­panese Amer­i­cans dur­ing World War II — such ac­tions were pub­lic and short term. When Con­fed­er­ate troops neared Wash­ing­ton in the Civil War and mobs in Bal­ti­more at­tacked Union troops, Pres­i­dent Abra­ham Lin­coln sus­pended habeas cor­pus — the prin­ci­pal le­gal pro­tec­tion against un­law­ful de­ten­tion. As Bal­ti­more’s mayor threat­ened to blow up rail­road bridges used by Union troops, Lin­coln acted with­out wait­ing for Congress to re­turn from re­cess. Yet he sub­se­quently sought and re­ceived con­gres­sional ap­proval.

Un­like Lin­coln and other past chief ex­ec­u­tives, Pres­i­dent Bush as­serts that he has the power to set aside fun­da­men­tal laws per­ma­nently — in­clud­ing those that ban tor­ture and do­mes­tic spy­ing. The White House to­day ar­gues that there will never be a day of reck­on­ing in Congress or the courts. To the con­trary, it does all it can to shield its use of uni­lat­eral de­ten­tion, tor­ture and spy­ing pow­ers from the re­view of any other branch of gov­ern­ment. Even af­ter five years, the law­ful­ness of in­car­cer­at­ing hun­dreds of de­tainees at Guan­tanamo Bay, Cuba, has not been re­viewed by an­other branch.

Never be­fore in U.S. his­tory, we be­lieve, has a pres­i­dent so read­ily ex­ploited a cri­sis to amass unchecked and un­re­viewed power unto him­self, com­pletely at odds with the Con­sti­tu­tion. This de­par­ture from his­tor­i­cal prac­tice should deeply con­cern those in both par­ties who care for the Con­sti­tu­tion. Even in mil­i­tary mat­ters, Congress has con­sid­er­able author­ity. For in­stance, the Con­sti­tu­tion spec­i­fies that Congress can “make Rules for Gov­ern­ment and Reg­u­la­tion of the land and naval Forces.” Mil­i­tary intelligence, mil­i­tary sur­veil­lance and mil­i­tary de­ten­tion are all mat­ters on which Congress can dic­tate the terms of how the com­man­der-in-chief’s power is ex­er­cised.

De­bates at the 1787 Con­sti­tu­tional Con­ven­tion in Philadel­phia, and in the state rat­i­fy­ing con­ven­tions that en­sued, con­clu­sively un­der­cut the cur­rent ad­min­is­tra­tion’s claim to un­ac­count­able power. Alexan­der Hamil­ton, the found­ing era’s fore­most ad­vo­cate of ex­ec­u­tive vigor, dis­dained ef­forts to equate the new pres­i­dent’s author­ity with the broad pow­ers of the English monar­chs. And even as­sum­ing that Hamil­ton was wrong in as­sert­ing that pres­i­dents have less power than English kings, the Bri­tish monar­chy had in fact been stripped of power to “sus­pend” par­lia­men­tary laws af­ter the Glo­ri­ous Revo­lu­tion of 1688, about 100 years be­fore the Con­sti­tu­tional Con­ven­tion. The Con­sti­tu­tion sim­ply con­tains no un­fet­tered ex­ec­u­tive author­ity to an­nul laws on a pres­i­dent’s se­cu­rity-re­lated say-so.

There is no rea­son to aban­don the found­ing gen­er­a­tion’s skep­ti­cism of unchecked ex­ec­u­tive power. The Con­sti­tu­tion rests on a pro­found un­der­stand­ing of hu­man na­ture. Hamil­ton, James Madi­son and the other framers and rat­i­fiers knew that no sin­gle in­di­vid­ual, whether se­lected by birth or pop­u­lar vote, could be blindly trusted to wield power wisely. They knew that both the ex­ec­u­tive and Congress would make mis­takes.

The Supreme Court has re­peat­edly backed a strong over­sight role for Congress. “The scope of [Congress’s] power of in­quiry . . . is as pen­e­trat­ing and far-reach­ing as the po­ten­tial power to en­act and ap­pro­pri­ate un­der the Con­sti­tu­tion,” it wrote in 1975. Congress has re­peat­edly met its con­sti­tu­tional re­spon­si­bil­ity as a co­equal branch, even in times of war, and re­gard­less of par­ti­san in­ter­ests. Over­sight is not a Repub­li­can or Demo­cratic is­sue. In World War II, then-Sen. Harry S. Tru­man co­or­di­nated ag­gres­sive in­quiries into the Demo­cratic ad­min­is­tra­tion’s mis­man­age­ment of war pro­cure­ment. Dur­ing the Civil War, Repub­li­cans in Congress drove Lin­coln’s first sec­re­tary of war from of­fice by their in­ves­ti­ga­tions.

To­day’s ques­tions about pres­i­den­tial power are cer­tainly not ones that have Repub­li­can or Demo­cratic an­swers. The in­sti­tu­tional im­bal­ance that is ev­i­dent to­day should trou­ble leg­is­la­tors of both par­ties.

We be­lieve that most Amer­i­cans still would agree with the Church Com­mit­tee when it stated: “The United States must not adopt the tac­tics of the en­emy,” for “each time we do so, each time the means we use are wrong, our in­ner strength, the strength that makes us free, is less­ened.” fritz.sch­warz@nyu.edu



State se­crets: Sen. Frank Church dis­plays a poi­son dart gun as Sen. John G. Tower looks on dur­ing the 1975 Church Com­mit­tee probe of CIA abuses.

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