THE FRIDAY REVIEW: Power Without Authority

The classical justification for the system of checks and balances was that it was the best defense of liberty in a large republic. The abuse of power would be prevented, and liberty would be protected, by allowing the different branches of government to overlap enough to keep each other in line. Leaving aside how successful this has been in the past, it is astonishing how badly this process is working today. Rather than protecting liberty, the fragmentation of authority and tangled lines of responsibility in government are being exploited to create an increasingly repressive security regime. All branches are complicit in this process.

Let’s begin with the executive. The Bush administration’s attempts to defend its domestic spying program are a case in point. The hinge of the Administration’s justification is that they haven’t assumed the authority to spy on domestic citizens by themselves. Instead, Congress decided to give it to them. As AG Gonzalez said on Monday’s press briefing,

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."

In other words, don’t blame us, Congress told us we could do it. While much of the outrage at the Bushies spying program is well deserved, what gets missed in the “King George” style denunciations is the lengths the administration is going to avoid any claims to have independent authority for their actions. Instead, even the kind of ridiculous fear mongering we have become accustomed to with Bush has taken a backseat to the strenuous attempt to pass off authority and responsibility for the extraordinary power they are claiming.

Although some members of the administration are still arguing that the Constitution [Article II] somehow authorizes the president to ignore laws that impinge on whatever the president deems an appropriate course of action in war, this argument has only been asserted in a sporadic and contradictory way (as previous posts on this blog have pointed out).

To be clear, the law that Gonzalez is referring to – the authorization for use of military force, or AUMF was passed on Sep. 19, 2001, and authorizes the president “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.” It doesn’t take John Yoo to see that this incredibly vague, broad, and sweeping language is a virtual invitation for abuse. But of course any concerns that Congress might have had at the time were overwhelmed by the fit of sound and fury to appear as though they were doing something in the face of the recent 9/11 attacks.

So given this legislative history, what has Congresses response been to Bush’s entirely predictable invocation of the AUMF? Howls of outrage that responsibility could possibly be laid at their feet. Former Congressman Bob Barr, who eagerly voted for the patriot act and the AUMF, insisted that Bush had no right to read the authorization in such a broad way. And today, former Senator Tom Daschle, who also voted for the patriot act and AUMF and was a sturdy supporter of Bush’s war on terror in its early days, was similarly shocked that Bush would claim authorization for domestic wiretaps. Congress, in other words, can pass incredibly broad, vague delegations of authority when politically expedient, so long as they can deny blame, stick their heads in the sand, and look the other way if it happens to be used in an unpopular way. Checks and balances at work.

Moreover, members of Congress can whip themselves into such repressive and demagogic frenzies more easily since they are not responsible for the constitutionality of the laws they pass. That job belongs to the courts. Congress can pass utterly irresponsible legislation like the AUMF without much thought to its potential consequences to liberty or democratic values because those are the concerns of the courts. Congress’s job is to demand action, rave, dodge issues, and appeal to the most irresponsible currents of public discourse, knowing that when it gets too out of hand the courts will step in.

For their part, the Supreme Court has already weighted in on the administration’s stretching AUMF to the breaking point, and it was just fine with them. Two summers ago, in Hamdi v. Rumsfed, Justice O’Connor’s plurality opinion found that AUMF – yes, the same one – in fact authorized Bush to hold Hamdi, an American citizen, on a naval brig in South Carolina for more than two years incommunicado and, for most of that time, without access to a lawyer. So if the Supreme Court finds that AUMF authorizes Bush to throw citizens in legal black holes and try them in kangaroo courts, what’s wrong with a little wire tapping?

What conclusions can be drawn from this? Those who are rightly outraged by Bush’s domestic spying should not let members of Congress off the hook when it throws up its hands and say, “don’t look at us.” This dynamic is precisely the problem at the root of the war on terror: illegitimate power with no authority. Congress must be held accountable for the stupid and pandering laws they pass. Secondly, the separation of powers is an instrument, which can be useful or useless. It should not be fetishized as a panacea of liberal government. Liberty today is not effectively defended – if it ever was – by looking to one branch of government to step in and save us from the other branches. It is just this acquiescence that has led to the paradox we face today: depoliticized liberty, and deliberalized politics.