| Assertion of Executive Authority in National Security Matters |
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I. The Problem In the area of national security, the executive branch’s assertion of executive authority, and “Commander-in-Chief authority” in particular, has extended farther than any time in history and in a manner that inappropriately seeks to evade review. The executive has argued that any presidential action taken in the name of national security is necessarily legal, rejecting congressional and judicial checks and undermining the separation of powers. For example, the President has asserted claims of executive authority to disregard laws enacted by Congress and has used the broadly worded Authorization for Use of Military Force (AUMF) of September 2001 to justify overriding existing laws. The President has not merely advanced a constitutional theory of unfettered executive power, but has also veiled its implementation of the theory in secrecy, thwarting the constitutional system of checks and balances. Congress, the courts and the public cannot curb abuse of executive power of which they are unaware. Under the theory of presidential unilateralism, the Justice Department’s Office of Legal Counsel (“OLC”) has issued poorly reasoned legal opinions licensing torture, extraordinary rendition, indefinite detention and warrantless domestic surveillance, among other activities, notwithstanding statutory and constitutional constraints. Indeed, OLC has essentially opined that there are no constraints when the President acts in the name of national security. These OLC opinions obliterating the administrative, statutory, and constitutional limits on executive power were problematic not only because they flouted the rule of law, but also because the executive hid this usurpation from the public and Congress. The executive branch in essence adopted its own “secret laws,” discovered by the public only when leaked. Then and only then was OLC’s shoddy reasoning exposed to legal scrutiny. Then and only then were the OLC opinions and related national security practices subjected to the Framers’ intended checks and balances. Then and only then was there even a modicum of accountability. OLC has also advised that because the President may revoke or modify an executive order at any time, he may do so simply by acting in a manner contrary to an executive order. Thus, in OLC’s view, by contravening an existing executive order, the President modifies or revokes, rather violates, that executive order, and he need not issue a new order or even make public his modification or revocation. No notice, no procedural safeguards, and no articulation of legal principles are necessary. Significantly, despite assertions of expansive presidential authority, Congress has failed to insist on its right to classified national security information and has failed to exercise its oversight authority and responsibilities, especially in matters of national security. Over-classification of intelligence and other information, as well as the expanding use of limited, “gang of eight” briefings has rendered legislative oversight of intelligence and national security activities ineffective, if possible at all. In “gang of eight” briefings, legislatively authorized only for covert actions in “extraordinary circumstances affecting vital interests of the United States,” only leaders of the House, Senate and of their respective intelligence committees are briefed; no congressional staff, no notes, and no discussions with colleagues are permitted. Without staff or other assistance, legislators as a practical matter cannot examine intelligence activities, determine whether additional information is needed, or assess whether laws are being violated. Beyond the limited situations involving briefings on covert actions, there is no legislative or constitutional basis for permitting the executive to limit briefings to such a small subset of Congress. Nor is there any legal or constitutional basis for the executive choosing which members of Congress may have access to information on national security policies. The current Administration’s unprecedented assertion of presidential unilateralism (what some have termed the “monarchial prerogative”) and Congress’ failure to exercise its oversight responsibilities not only undermine our constitutional system of checks and balances, but preclude effective national security policy-making by depriving the government of a forum to debate policy and to identify and correct errors. II. Proposed Solutions
The President has an overriding obligation to exercise executive authority in conformity with the law. Accordingly, the new President should articulate a reasonable view of executive authority that is grounded in the text and structure of the Constitution, as well as settled judicial precedent. In addition to Congress’ authority to legislate, to appropriate funds, and to confirm presidential appointments, general principles of oversight and accountability underlying the separation of powers require that Congress be fully informed concerning intelligence and national security activities. The new Administration should promote transparency and accountability -- including with respect to OLC opinions upon which the executive relies -- and should limit secrecy and over-classification. Only when the executive shares information with Congress and exposes legal rulings and interpretations to scrutiny is democratic oversight of intelligence and national security activities possible, and only then can the system of checks and balances be restored. By the same token, Congress must exercise its oversight authority in matters of intelligence and national security, rather than acquiescing to the Administration’s assertion of unfettered executive authority. In doing so, Congress must use its various powers and insist on obtaining information necessary to conduct effective oversight and to preserve the rule of law.
1. Proposal 1: The new President should issue an unambiguous statement that his administration will enforce the laws passed by Congress or advise Congress promptly when he is not doing so and why. He should also clarify that the new administration will not construe the Authorization for Use of Military Force to override existing legislation. 2. Proposal 2: The new administration should publicly release the legal opinions issued by the Office of Legal Counsel that authorize torture, “enhanced” interrogation techniques, detention without meaningful hearings, extraordinary rendition and warrantless surveillance, among others. The President should also order the Attorney general to initiate a thorough review of all such opinions and, as appropriate, to revise or withdraw the opinions. 3 Proposal 3: Congress should enact legislation, such as the proposed OLC Reporting Act of 2008, requiring that the Attorney General report to Congress when the Department of Justice issues a legal opinion concluding that the executive branch is not bound by a federal statute. 4. Proposal 4: Congress should vigorously exercise its existing oversight responsibilities, including oversight of intelligence and national security activities. Likewise, the executive branch should respect Congress’ oversight role. For example, the new President and Congress should confine the use of “gang of eight” briefings, which create the impression of accountability but preclude effective oversight, to the limited category of situations for which they were legislatively authorized. By federal statute, “gang of eight” briefings are permitted for covert actions in “extraordinary circumstances affecting vital interests of the United States,” but not for other intelligence activities. At minimum, the use of such briefings should be limited to the narrow and extraordinary circumstances permitted by law. III. Allies* American Association of Law Libraries Mary Alice Baish, Acting Washington Affairs Representative American Library Association Lynne E. Bradley, Director Association of Research Libraries Prudence Adler Bill of Rights Defense Committee (BORDC) Chip Pitts, President Center for Democracy & Technology Gregory T. Nojeim Citizens for Responsibility and Ethics in Washington Anne Weismann, Chief Counsel Common Cause Sarah Dufendach, Vice President for Legislative Affairs The Constitution Project Becky Monroe Defending Dissent Foundation Sue Udry, Director Electronic Frontier Foundation (EFF) Kevin S. Bankston Essential Information John Richard or Robert Weissman Federation of American Scientists Steve Aftergood Government Accountability Project Jesselyn Radack, Homeland Security Director Liberty Coalition Michael D. Ostrolenk, Co-Founder/National Director National Litigation Project of the Lowenstein International Human Rights Clinic, Yale Law School Hope Metcalf OMB Watch Sean Moulton, Director, Federal Information Policy OpenTheGovernment.org Patrice McDermott Physicians for Human Rights Sara B. Greenberg, JD, MALD sgreenberg(at)phrusa.org 202-728-5335 South Asian Americans Leading Together Priya Murthy Stanford Law School - Mills International Human Rights Clinic Barbara J. Olshansky, Leah Kaplan Visiting Professor and Clinic Director U.S. Bill of Rights Foundation Dane vonBreichenruchardt, President
*These groups and individuals support the general principles expressed and the general policy thrust and judgments in the policy proposals described above. The allies listed do not necessarily endorse the specific language in every proposed solution, but they do agree that the proposals reflect the general principles that should govern policy in this area. Please contact the individuals and organizations listed in this section for more information. IV. Counterarguments and Rebuttal Essentially, the Bush administration has argued that since we are at war in Iraq and Afghanistan and we are fighting a “war on terror,” the President has broad wartime powers under Article II of the Constitution as the Commander in Chief. They also contend that in this post-9/11 world, the need to safeguard our national security demands that the Executive branch maintain the secrecy of national security information. They assert that the Executive branch has a particular expertise in foreign policy and national security, and that the members of other branches – Congress and the courts – cannot be trusted either to safeguard national security information or to make informed decisions on national security issues. However, the President’s powers under Article II are limited, and even the Commander-in-Chief power does not authorize the President to ignore the duly enacted laws of Congress. Further, while certain national security information must be protected from general public disclosure, information may still be shared with Members of Congress and/or federal judges in connection with their consideration of national security issues. Unchecked executive discretion promotes abuse, and oversight by Congress and the courts is necessary and constitutionally required. Finally, as to the specific issue of OLC opinions, the Executive branch argues that the president must be free to receive confidential legal advice from his lawyers. Such confidentiality, however, should not preclude the Executive from complying with the requirements of the proposed OLC Reporting Act, by notifying Congress whenever OLC has concluded that the president is not bound by a particular federal statute. The proposed legislation would not require that the substance of the legal opinion be disclosed. V. Recommended Documents for Further Information
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