Bush And The Separation Of Powers

by hilzoy

Yesterday, President Bush admitted that he authorized the surveillance program described in Friday’s New York Times, which allows the government to conduct surveillance on American citizens without a warrant.

This is an extraordinary admission. But since some of our friends on the right are having difficulty understanding why, I thought I’d spell it out.

First, this program seems to be illegal. I explained in my last post on Washington Monthly why I think this; you can read the relevant law (FISA) for yourself, or check out the relevant bits, which I pasted into a comment.

(Some of the legal commentary from the right is beyond bizarre. This, for instance:

“This was done and reviewed periodically every 45 days. 50 USC 1802 says:
(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year….”

If you check out the text after the ellipses, it says: “if the Attorney General certifies in writing under oath that…”, and one of the things the AG has to certify in order to engage in these warrantless wiretaps is: “(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party”. A ‘United States person’ is defined here; it includes any US citizen or legal permanent resident. So this section explicitly does not authorize the sort of warrantless surveillance of US citizens that the NY Times describes.

After writing this, I found more debunking of right-wing legal analysis here.)

Unless there’s some intriguing legal authority that I’m missing, the President has admitted to ordering his subordinates to violate the law. And that is extraordinary in itself.

***

In addition, President Bush’s actions violate the crucial doctrine of the separation of powers, which is one of the founding principles of our country. The separation of powers requires that the three branches of government be strictly separated. The role of the Legislature is to write the laws and to impose taxes. The role of the Executive is to carry out those laws. The role of the judiciary is to interpret them, and to carry out the judicial proceedings that decide the guilt or innocence of individuals. When one branch takes it upon itself to usurp the powers of the others, the separation of powers is threatened, and our liberty is at risk.

Montesquieu, the great theorist of the separation of powers, wrote:

“Political liberty is to be found only in moderate governments; and even in these it is not always found. It is there only when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. (…)

To prevent this abuse, it is necessary from the very nature of things that power should be a check to power. (…)

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”

James Madison wrote, in Federalist 47:

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.”

What George Bush has done, by signing his Presidential Order, is to produce exactly that accumulation of powers that Madison and the other framers of the Constitution were determined to prevent. He has decided to circumvent the courts’ power to decide whether the government has enough evidence to place someone under surveillance, thereby removing a crucial check on executive power, and arrogating one of the powers of the judiciary to himself.

Moreover, the power he seeks to strip the judiciary of is not a peripheral one; it is essential to the Fourth Amendment prohibition against unreasonable searches and seizures. Thus, from a 1972 Supreme Court decision (United States v. United States District Court, h/t CharleyCarp):

“Lord Mansfield’s formulation touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen’s private premises or conversation. Inherent in the concept of a warrant is its issuance by a “neutral and detached magistrate.” Coolidge v. New Hampshire, supra, at 453; Katz v. United States, supra, at 356. The further requirement of “probable cause” instructs the magistrate that baseless searches shall not proceed.

These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.”

In addition, in deciding that he has the right to disregard clear statutes, President Bush is arrogating to himself the power of the legislature as well. The Legislature has the power to make laws; the Executive carries out the laws the Legislature has written. Had George W. Bush wanted to, he could have gone to Congress and asked it to change the laws. Instead, he decided to simply ignore them: to act as though he had the powers that the Constitution reserves to the legislative branch.

He is, essentially, claiming that he has the right not just to execute the laws, but to write them himself, and then to judge their application. Moreover, he claims the right to do this in secret. Were he to announce openly that he had decided to concentrate all the powers of government in his own hands, we could at least argue about whether or not we thought that was a good idea. But by acting in secret, he is, essentially, asserting the right to amend the Constitution unilaterally and without having the decency to let us know.

***

President Bush claims that “the NSA’s activities under this authorization are thoroughly reviewed by the Justice Department and NSA’s top legal officials, including NSA’s general counsel and inspector general.” Unfortunately for us, there is no reason to doubt that this is true. The New York Times reported that:

“For example, just days after the Sept. 11, 2001, attacks on New York and the Pentagon, Mr. Yoo, the Justice Department lawyer, wrote an internal memorandum that argued that the government might use “electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movement of persons but without obtaining warrants for such uses.”

Mr. Yoo noted that while such actions could raise constitutional issues, in the face of devastating terrorist attacks “the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.”

The next year, Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said that “the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority.””

This is the same administration whose lawyers wrote, in one of the torture memos (pdf):

“In light of the President’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President’s ultimate authority in these areas.” (p. 20.)

They apparently believe that when the Constitution says (Art. II, sec. 2) that “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”, what it means is that the President has the power not just to, well, command the Army and Navy, but to set aside laws, treaties, and the rest of the Constitution itself, so long as there is even a tenuous connection between what he wants to do and national security.

I have no idea how they square this with other parts of the Constitution, like its statement that the President “shall take Care that the Laws be faithfully executed”, or with the fact that the Framers seem to have completely disagreed with them. (Federalist 69 on the Commander in Chief power:

“It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.”)

But if it’s hard to reconcile the administration’s position with the Constitution and the views of the framers, it’s even harder to reconcile it with anything remotely resembling common sense. Because, on this view, the President can do anything he wants — anything at all — during wartime.

Does he want to imprison a United States citizen indefinitely, without a warrant, and habeas corpus be damned? Fine! Does he want to tap our phones and read our email, also without a warrant, in defiance of the FISA statute and the Fourth Amendment? Also fine! As far as I can see, on this reading of the Constitution, there’s no reason he couldn’t decide that his war powers extended to levying taxes without Congressional approval (wars cost money, you know), or throwing Congressman Murtha in jail to prevent him from sapping our troops’ morale, or suspending the publication of all newspapers, magazines, and blogs on the same grounds, or making himself President For Life on the grounds that we need the continued benefit (cough) of his awesome leadership skillz to successfully prosecute the war on terror.

To quote the Federalist Papers one last time (this time, no. 48):

“An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”

In this country we do not have an absolute monarch. We have a President who is bound by the rule of law, just like the rest of us. When he asserts the right to set the laws and the Constitution aside, and to arrogate all the powers of government in his hands in secret so that he can use it unchecked, we have an obligation to make it clear that he is wrong. And if we love our country, we will.