Where’s Congress in this Power Play?

By Frederick A.O. Schwarz Jr. and Aziz Huq
Sunday, April 1, 2007; B01

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 committees 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.

For 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.”

But 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 approvingly 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 executive 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 presidential 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.”

Frederick A.O. Schwarz Jr.,

a lawyer with New York University’s Brennan Center for Justice, was chief counsel for the Church Committee in 1975–76. Aziz Huq is a Brennan Center fellow. Their book is “Unchecked and Unbalanced: Presidential Power in a Time of Terror.”