Panel 5 Protection the Nation: Executive Power in an Age of Terror

Meredith Perry, Executive Editor of the Government Law Review

The Powers of the President in an Age of Terror—Dr. Abraham Wagner, Adjunct Professor of International and Public Affairs at the School of International and Public Affairs, Columbia University.

      Dr. Wagner started his talk on the use of executive powers by the President with a discussion of September 11th.  Dr. Wagner noted how prior to September 11th the United States had not been attacked since 1812, noting that at the time of Pearl Harbor, Hawaii was merely a U.S. territory and not a state.  Further, the media exacerbated the magnitude of September 11th.  Dr. Wagner detailed how the casualties of September 11th totaled around 3,000 and how this number is not enough to cause the end of a republic, especially when about 457,000 people die each year from smoking.  Also, Dr. Wagner mentioned how September 11th was the most significant intelligence failure since the 1962 Missile Crisis.  It is also important to note that during the months following September 11th, there was a great amount of limited and conflicting data.

      Dr. Wagner discussed how executive power was an enormous concern of our Founding Fathers, as seen in the Federalist Papers.  He transitioned to President George W. Bush’s use of executive power by pointing out that its use, throughout time, is more cyclical than serial.  President Bush used executive power following September 11th, having no experience in national security, and with a “supporting cast,” which included Cheney, Rice, Rumsfeld, Tenet, Powell, Wolfowitz, and Ashcroft.  The need to save the nation from impending threats, such as the report of a nuke targeting New York City (also known as the Dragonfly threat), spurred President Bush to exercise Executive Power. The Bush Doctrine changed the U.S. approach from that of strategic globalism to preemption, as is witnessed by the United State’s actions in Afghanistan and Iraq.

      Through President Bush’s use of executive power, the U.S. detained foreign nationals in such prisons as Guantanamo Bay, tortured these prisoners and detainees through the implementation of secret programs (now supported by the Department of Justice’s “Torture Memos”), and instituted a domestic surveillance program.  Dr. Wagner detailed how there is no approval or support for these actions under FISA, Title III of § 1986, nor the U.S. Constitution.  Both of the laws governing electronic surveillance, FISA and Title III, are ancient compared to the technology used today.  Dr. Wagner specifically commented that they are “best seen in the Smithsonian and not applicable to our current means of communication.”  In regards to the Constitution, neither the First nor the Fourth amendments really apply.  Particularly, Dr. Wagner commented that the Fourth Amendment and its right to privacy might apply in regards to preventing the “Big Brother” listening; however, there is nothing about communication explicitly anywhere in the Constitution or the Amendments.

      Dr. Wagner concluded by stating that through President Bush the use of executive power has been extended to such an extreme as to ignore the law and avoid any and all Congressional oversight.  He encouraged all to remember that the Constitution gives power and responsibility to the President AND Congress, and that power needs to be balanced between the two branches. 

Lincoln’s Suspension of Habeas Corpus—Saikrishna Prakash, Herzon Research Professor of Law, University of Virginia School of Law. 

      Professor Prakash started his discussion of habeas corpus by providing a brief history behind Lincon’s suspension.  He noted that Lincoln argued that the President is authorized to suspend habeas corpus because of the Commander-in-Chief power of the President and the fact that Congress is not always in session and thus the executive branch has the authority to act in order to protect the country.  He explained that Congress approved all of Lincoln’s military orders; however, it was not specific as to whether this included the suspension of habeas corpus or just Lincoln’s expansion of the U.S. Army.  When Lincoln actually suspended habeas corpus, he cited this bill, as if to show that Congress supported his assertion that he indeed had the power of suspension. Professor Prakash concluded his brief overview of Lincon’s suspension by pointing out that habeas corpus is mentioned once in the Constitution in Article I § 9.  It merely provides when habeas corpus can be suspended and does not explicitly say who has that right.  Although, Professor Prakash reminded the audience that Article I delegates congressional power and thus it can be inferred that the power of suspension is reserved strictly for the Legislature.  Professor Prakash went on to address the three areas of argument surrounding the power of suspension: (1) resides exclusively with the President; (2) resides concurrently with the President and Congress, and (3) only resides with Congress.

      In regards to the first argument, Professor Prakash explained that most argue that because the Suspension Clause talks about rebellion and invasion and the President would the first to know about such things, more so than Congress, and the President is the Commander-in-Chief, that the power of suspension resides solely with the Executive Office.  Professor Prakash noted that this argument is difficult to defend given to the text of the Constitution.  He went on to explain how the Commander-in-Chief power is not a good source of authority because it is merely the power to be the first general and no President prior to Lincoln though the power of Commander-in-Chief gave them the power to suspend.  Also, in England, the power to suspend belonged

      Professor Prakash that argument two (power of suspension resides with both Congress and the President) is wrong for the same reasons.  Supporters of this view argue that the President has the power to suspend under the Commander-in-Chief power and Congress as the power under the Necessary and Proper Clause.  Professor Prakash explained that this is ultimately wrong for the same reasons as the idea that the President exclusively has the power to suspend.  He commented that there needs to be a source for the authority and if the President is not generally allowed to suspend under the Constitution, then cannot suspend even when Congress is not in session.  Further, the fact that Congress is not in session in no way suggests that the President should have such power.  Specifically, he mentioned Recess Appointment clause of the Constitution given to the President and how there is no recess suspension power given to the President explicitly in the Constitution and one would think that if the Founding Fathers wanted the President to have such a power they would have included it in the Constitution.

      Professor Prakash concluded by stating his agreement with the third argument—the power of suspension lies solely with Congress.  He detailed how this was the exact situation in England and how the Founding Fathers believed that the President should not have more authority than that of the crown when they wrote the Constitution.  The Commander-in-Chief in England was a subordinate of the crown and it does not make sense for a subordinate position to hold such a power when the crown did not.  He further commented that since Lincoln, this has been the view held by many and is the right answer more so than the others.  Ever since Lincoln, the suspension of habeas corpus has been down via statute, not via the notion that the President can unilaterally suspend on his own.  He concluded by noting that our general reverence for Lincoln blinds use to his constitutional faults and one of Lincoln’s legacies should not be this distorted sense of what a President can do in the case of rebellion and crisis—unilaterally suspend habeas corpus. 

President’s Use of Executive Power—Emily Berman, Counsel/Katz Fellow, Brennan Center for Justice at New York University School of Law 

      Ms. Berman opened by explaining Executive Privilege as the claim of right by the President to withhold information.  She noted that this privilege is used: (1) in response to FOIL requests; (2) during the discovery state of litigation; and (3) in response to a congressional request for information.  Ms. Berman focused on the use of executive privilege as it pertained to congressional requests.  She explained that the problems with executive privilege arise from four systemic flaws: (1) lack of clear guidelines, (2) biased in the favor of the President, (3) the Legislature and the Executibe branches each has their own interpretation of the power, and (4) the lack of guidelines allows the President to expand the privilege at will.

      (1) Lack of Clear Guidelines:  Ms Berman noted that executive privlege is not governed by a clear set of rules.  There is nothing explaining what type of information is protected nor what Congress has to show in order to overcome the privilege.

      (2) Biased in the Favor or the President:  Ms. Berman commented how the traditional methods used by Congress, such as defunding programs and delaying confirmation of Presidential nominees, to get information from the President are ineffective today because members of Congress favor their allegiance to their particular party more so than their general allegiance to Congress as a whole.  This partisanship undermines Congress’s ability to demand information and thus the system favors the President.

      (3) Different Interpretations:  Ms. Berman mentioned how the Executive holds the view that there is absolute immunity for cabinent officials and the President’s closest advisors, while Congress holds the view that Advisors, just as any other person in the United States, must answer Congressional subpoenas.  This creates a problem because these views cannot be reconciled and ultimately interfere when the two branches try to resolve the issue through negotiation.

      (4) Unclear Guidelines Allow Executive to Expand the View and Use of the Privilege:  Ms. Berman briefly commented how the tendency is to claim executive privilege regardless of whether or not the information requested falls under the reasonable and general understanding of what is protected by the executive privilege and the lack of guidelines allows this because there is no set standard by which to determine what is and is not protected.

      Ms. Berman through her work at the Brennan Center developed a proposal addressing these structural flaws.  The proposal offers a comprehensive framework, providing: (1) guidelines for the Executive for when it is appropriate to assert the privilege (noting that State Secrets are a valid use of the privilege against Congress under this proposal); (2) provides what Congress must show in order to overcome the Executive’s claim of the privilege; and (3) authorizes Congress to submit disputes to the federal courts after unsuccessful negotiations and either chamber of Congress authorizes such a lawsuit through a majority vote.

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