The Freewheeling Executive

Aziz Huq

December 22, 2005

Aziz Huq is associate counsel in the Liberty and National Security project of the Brennan Center for Justice  at NYU School of Law. He is co-writing with Fritz Schwarz a book on the separation of powers and national security to be published by the New Press in late 2006.

Has Congress given the president a thumbs-up to spy on Americans? Attorney General Alberto Gonzalez said “yes” this week in defending the National Security Agency’s eavesdropping on Americans’ calls and e-mails overseas. The NSA’s spying, to be sure, raises troubling questions about constitutional rights. But its implications for the separation of powers are even more startling. As far as national security policy goes, Gonzalez has Congress unwittingly writing itself out of the decision-making process, leaving the executive branch free reign to ignore the law and cherished civil liberties. 

Gonzalez argued that the NSA’s spying, as “a fundamental incident of war,” was “authorized by Congress.”  But when? His statement left legislators scratching their heads: “Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy [my] lingering concerns,” complained Sen. Jay Rockefeller. 

In fact, Gonzalez was referring to the four-year-old “Authorization for the Use of Military Force,” or AUMF, enacted the week after the 9/11 attacks. With Afghan operations looming, Congress at that time gave the President power to use “all necessary and appropriate force,” but only against those who had “planned, authorized, committed, or aided” the 9/11 attacks. 

Despite these carefully drawn limits, the executive has treated the AUMF as an open-ended invitation to do whatever the president thinks is wise counter-terrorism policy. Close examination of the way executive branch officials have used the AUMF recently reveals a belief that Congress has signed off on an “anything goes” approach to counterterrorism.

Start with the NSA’s spying. Gonzalez’s legal reasoning is not limited to U.S.-to-overseas communications.  Indictments issued earlier this year against home-grown extremists in California with no foreign connection remind us that conspiracies need no foreign link to pose a threat. If the NSA’s legal rationale hinges on the scope of the terrorist threat, the administration’s decision to exclude entirely domestic communications from its program was a matter of grace, which could be retracted at any time. Indeed, Secretary of State Condoleezza Rice on Sunday rejected any “safe haven for terrorists operating here,” seemingly including the “safe haven” of the Fourth Amendment.

Earlier this summer, in oral argument in the case of enemy combatant Jose Padilla, Judge Michael Luttig asked Solicitor General Paul Clement whether “the United States is a battlefield in the War on Terror.”  Without skipping a beat, Clement said yes—and relied on the AUMF. In Clement’s view, the government can pick up and detain anyone, even a citizen, in the United States, as if the nation were a savage battlefield and the ordinary law a nullity. Judge Luttig and his colleagues accepted this argument and authorized Padilla’s indefinite lock-up—a decision that since then has been thrown into question by evidence that the government was manipulating the facts. 

And if indefinite detention, why not assassination? Two former administration lawyers, Jack Goldsmith and Curtis Bradley published an analysis in the Harvard Law Review of the AUMF that tracks Gonzalez’s sweeping position.  Buried deep in footnote 325, they explain that the AUMF has the “potential” to “authorize the President to target and kill persons covered by the AUMF found in the United States.” They caution that “nonthreatening” enemies ought to be arrested, per international law, but also argue that the president cannot be checked by international law. The scope of who falls under the AUMF, at least according to Gonzalez, is troublingly broad: anyone “affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.”  Following this logic, a reporter whose story “supports” al Qaeda or a lawyer for a criminal defendant charged with terrorism related-offenses are legitimate candidates for assassination. 

Freewheeling deployment of the AUMF risks depriving Congress of any role in pivotal policy decisions. Simply put, once Congress signed off on an armed conflict in Afghanistan, it has not authorized the dramatic curtailing of all constitutional liberties in the United States . And, at minimum, Gonzalez’s discovery of a “penumbra” around the AUMF is sharply ironic, given the Justice Department’s resistance to the “penumbral” constitutional rights of privacy that protects abortion.  The AUMF, in short, says less than the administration claims, while the Constitution embodies a far more robust separation-of-powers principle that the administration believes. 

A simpler explanation also exists for the AUMF’s use, which Gonzalez slipped and revealed on Monday:  It’s a tool for the executive to take what the Congress has refused to give. Twice, Congress could have authorized warrantless wiretapping of the kind the NSA has been engaged in. Twice, it didn’t do so. Passing the Foreign Intelligence Surveillance Act, or FISA, in 1978, Congress allowed intelligence agencies to listen without a warrant—but only when a communication was “between or among foreign powers.” It deliberately excluded from this provision the communications of a “group involved in international terrorism,” such as al Qaeda. Mere weeks after the 9/11 attacks, Congress revisited FISA in the PATRIOT Act: Again, the NSA’s warrantless searches of citizens were not authorized.

That’s not all. On Monday, Gonzales conceded that the executive branch has in fact asked for the powers now being used by the NSA.  But, he said, “we were advised that that would be difficult, if not impossible” to have such a law enacted. That is, Congress said no! Attorney General Gonzalez’s reasoning renders Congress’s recent anguished debates over PATRIOT an empty charade:  The AUMF, in his view, contains enough surveillance authority to extinguish any “safe havens,” whether or not Congress acted. 

In our constitutional framework, Congress is no mere rubber stamp: It is Civics 101 that the separation of powers entails meaningful involvement by both elected branches in making decisions of national significance. The Congress that enacted FISA, the PATRIOT Act, and the recent intelligence reform bill is clearly capable of crafting sophisticated legislative frameworks for national security purposes, whether or not we support those laws. 

In the hearings to be held by Sen. Specter, Gonzalez will have to explain how Congress managed to authorize the NSA’s spying, but simultaneously rejected the very same grant of power.  He’ll have to explain why the executive branch thinks it doesn’t need Congress’s approval to spy, but then warns that the sky will fall if Congress doesn’t reauthorize PATRIOT. And Congress will have to do far more than grapple with the facts not only of the NSA’s illegal eavesdropping, but also with new revelations about FBI’s and the military’s invasive prying into legitimate domestic political groups. When it returns in the New Year, the legislature must finally come to grips with this administration’s troubling habit of using Congress’s own words to exclude our legislators from momentous decisions about security, accountability, and a citizen’s right to privacy in a globalized Internet age.