Awkward Questions 1: Is Gonzalez Right?
Yesterday's first round of set-pieces, er, 'congressional inquiry' into the warrantless NSA wiretapping produced few surprises, but it did raise at least a couple awkward questions. Much has been made of Attorney General Alberto Gonzalez's claim that Bush has the 'inherent authority' to order secret wiretapping, without the approval of Congress or the FISA courts. Critics have pointed to this argument as evidence that Bush has departed wildly from American constitutional traditions, and even some Republican Senators weighed into Gonzalez for trying to do an end run around Congress.
But this criticism substitutes their own preferred interpretation of the constitution for actual constitutional history. For instance, during his testimony, Gonzalez plausibly referred to and interpreted a three-part test developed in Justice Jackson's ruling in the famous Youngstown case as justification for the wiretapping. More broadly, in a series of instances over the course of the 20th century, not only has Congress delegated wide-ranging powers to the President, the Supreme Court has also interpreted the Constitution to grant the President broad latitude to do what is necessary during wartime. This does not mean we should not be critical of Bush, but rather suggests criticism should be more substantial. If anything, Democratic Senators, and the swirl of opinion around them (including a few Republican Senators), are not facing the problem squarely by accusing Gonzalez of misinterpreting the constitution. The problem is not that Gonzalez was wrong but that he was right. What we are facing is not merely a single, runaway Presidency, but an even more unnerving historical trend that needs to be addressed directly and unflinchingly.*
*Note: An astute reader has identified a few ambiguities in the original post which we think are important enough to clarify here. That Justice Jackson, in the Youngstown case, condemned the unilateral assertion of executive discretion is indeed very important, and points to a problem with Gonzalez's invocation of that Justice. Important, too, are objections by Senators that they never intended to authorize this kind of warrantless wiretapping. The point above, however, is that unfortunately, even when a president has asserted powers that are clearly unconstitutional in the moment, subsequent acts by Congress and/or the Supreme Court have ended up granting many of these usurped powers constitutional or statutory authority. This may happen again here, with some senators calling for a bill that would make this kind of spying legal. In this sense, Gonzalez may have been right not about what is constitutional at the moment, nor in asserting that there is no meaningful check on presidential discretion, but in that his interpretation is based on historical precedents set by the actions of the other branches. Moreover, we take issue with the rhetorical dimension of the Senators' claims, which is that somehow the attack on the separation of powers is the unique and aberrant threat of this President, rather than something with deeper roots in our political life.
But this criticism substitutes their own preferred interpretation of the constitution for actual constitutional history. For instance, during his testimony, Gonzalez plausibly referred to and interpreted a three-part test developed in Justice Jackson's ruling in the famous Youngstown case as justification for the wiretapping. More broadly, in a series of instances over the course of the 20th century, not only has Congress delegated wide-ranging powers to the President, the Supreme Court has also interpreted the Constitution to grant the President broad latitude to do what is necessary during wartime. This does not mean we should not be critical of Bush, but rather suggests criticism should be more substantial. If anything, Democratic Senators, and the swirl of opinion around them (including a few Republican Senators), are not facing the problem squarely by accusing Gonzalez of misinterpreting the constitution. The problem is not that Gonzalez was wrong but that he was right. What we are facing is not merely a single, runaway Presidency, but an even more unnerving historical trend that needs to be addressed directly and unflinchingly.*
*Note: An astute reader has identified a few ambiguities in the original post which we think are important enough to clarify here. That Justice Jackson, in the Youngstown case, condemned the unilateral assertion of executive discretion is indeed very important, and points to a problem with Gonzalez's invocation of that Justice. Important, too, are objections by Senators that they never intended to authorize this kind of warrantless wiretapping. The point above, however, is that unfortunately, even when a president has asserted powers that are clearly unconstitutional in the moment, subsequent acts by Congress and/or the Supreme Court have ended up granting many of these usurped powers constitutional or statutory authority. This may happen again here, with some senators calling for a bill that would make this kind of spying legal. In this sense, Gonzalez may have been right not about what is constitutional at the moment, nor in asserting that there is no meaningful check on presidential discretion, but in that his interpretation is based on historical precedents set by the actions of the other branches. Moreover, we take issue with the rhetorical dimension of the Senators' claims, which is that somehow the attack on the separation of powers is the unique and aberrant threat of this President, rather than something with deeper roots in our political life.
2 Comments:
Can we be reading the same Justice Jackson here? Are the editors so persuaded that, in an "unnerving historical trend," the legislature and judiciary have always been intent on ceding their liberty to the executive, that they cannot hear the force of Jackson's condemnation: "The executive action we have here originates in the individual will of the President, and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance, and the parties affected cannot learn the limit of their rights"? Is it of no importance that Senators who voted to authorize the use of force in Afghanistan publicly proclaim that they did not intend to supersede FISA? Is it irrelevant to the present discussion that when a general authorization conflicts with a specific statute, courts normally hold that the specific statute governs? Is it worth granting some credit to the statement by one Senator that "we had no intention of hiding an elephant in a mouse hole?" What purpose is served by claiming that authentic opposition to an abuse of power is a mere sham? I don't see the point of your critique.
The astute reader has identified a few ambiguities in the post which we will attempt to clarify in future posts. Justice Jackson's condemnation is very important, as are the objections of the Senators. The point here was that, unfortunately, even when a president has asserted powers that are clearly unconstitutional in the moment, subsequent acts by Congress and/or the Courts have ended up granting many of these usurped powers constitutional or statutory authority. This may happen again here, with some senators calling for a bill that would make this kind of spying legal. In this sense, Gonzalez may have been right not in what is constitutional at the moment, or in asserting that there is no separation of powers at all, but in that his interpretation is based on historical precedents set by the actions of other branches. Moreover, there is the rhetorical dimension of the Senators' claims, which is that somehow the attack on separation of powers is the unique and aberrant threat of this President, rather something with deeper roots in our political life.
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