Tuesday, December 27, 2005

All the President's Lawyers

Peter S. Canelos of The Boston Globe brings us this perspective on Mister Bush's execution of his "war powers."
When President Bush sought to reassure the country that his authorization of spying on Americans without warrants was a reasonable exercise of his power, he emphasized that his orders were always reviewed by the attorney general and the White House counsel.

''Each review is based on a fresh intelligence assessment of terrorist threats to continuity of our government and the threat of catastrophic damage to our homeland," Bush said in his Dec. 17 radio address. ''The review includes approval by our nation's top legal officials, including the attorney general and the counsel to the president."

The current occupants of those jobs are Attorney General Alberto Gonzales and White House counsel Harriet E. Miers. Prior to 2005, Gonzales was White House counsel and John Ashcroft was attorney general.

The current dispute over whether the president had the authority to order domestic spying without warrants, despite a law against it, has put new focus on the legal officials who have guided Bush. And the qualifications of Ashcroft, Gonzales, and Miers could become a focus of the upcoming Senate hearings on the spying decision.

Canelos goes on to explain that the three lawyers in question may not be as experienced or qualified as others who served in their positions for previous administrations. But if, as he suggests, the Senate intends to focus on their credentials in the spy hearings, the Senate will be missing the main point.
Since Sept. 11, 2001, Bush's legal advisers have cleared the way for him to hold enemy combatants without trials; eavesdrop on overseas telephone calls and e-mails; place ever-greater numbers of government documents under a veil of secrecy; imprison a US citizen indefinitely on the suspicion of terrorist links; and, according to The Washington Post, operate a secret CIA prison in an Eastern European country.

In each case, the legal official responsible for assessing the extent of Bush's powers was Ashcroft, Gonzales, or Miers.

The problem is not whether Bush's attorneys were qualified to make decisions about the extent of his power. The problem is that they made those decisions in the first place.

Nowhere does the Constitution say "The limits of the President's executive powers shall be determined by the Attorney General and other attorneys from whom the President chooses to take counsel." The Constitution doesn't say anything remotely like that.

The Constitution doesn't mention anything about the powers and duties of an Attorney General, a White House Counsel, or the Justice Department. In fact, it doesn't mention the Attorney General, the White House Counsel, or the Justice Department at all.

It does, however, address judicial powers. Article III states:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.


The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority[.]

This is the issue the Senate needs to pursue in its hearings, and bring to the attention of the electorate. How did the judicial power to decide on the Constitution--and laws and treaties arising under it--migrate from the judicial branch of government to the "top legal officials" who work in the executive branch?


Mister Bush justifying his NSA spying orders on the basis of review of the Attorney General and the White House Counsel amounts to you standing in front of a judge in traffic court and saying, "But my lawyer told me it was okay to drive 150 miles an hour down I-85."


  1. I agree with you re: the NSA spying, but I'm not sure I agree entirely with everything you've posted.

    It isn't quite like saying "my lawyer told me to drive 150 miles an hour on I-85." That's something that is absolutely, without question, illegal. I happen to think the NSA spying is unconstitutional, but the fact is Supreme Court jurisprudence does allow for warrantless searches. The 4th amendment is not adhered to strictly, on it's face. You're going to find legal opinion on both sides of this issue, and I suspect they'll both be grounded in precedent and argument. I side with those who say it was illegal, however.

    Also, I don't think the judicial power "migrated" to the executive. The executive wasn't wielding "judicial power." They didn't convene a court, etc. When the Constitution was written, the Judicial Power didn't include the final determination of what was Constitutional. That came later in Marbury v. Madison. At least one founder (Jefferson) felt that since all branches of government were equal, they each had equal power to decide what was constitutional. Luckily, things didn't end up that way, however. But I don't see the argument that the executive is exercising judicial power here. They're simply by-passing the judiciary all together (which is still a huge problem, in my view).

    I agree that focusing on the credentials of Ashcroft, Gonzales, and Miers would be foolish. Would be very easy to simply paint the criticism as a witchhunt against those three, or as a series of personal attacks, and obscure the real issues. Hopefully those opposed to the admin won't take that approach. I don't know much about Gonzales or Miers, but I think Ashcroft's qualifications were fine (State AG, State Governor for 8 years, etc...he's a bright guy. I've spoken with him).

    The thing that is most interesting about this is it boils down to power plays between the executive, legislative, and judiciary. These have happened multiple times in our history. Usually, the Supreme Court ends up giving the whole thing a pass because it doesn't want to lose power (i.e. rather than issue a ruling and have another branch ignore it, they'll side with the other branch, often under the "political question" doctrine, which is a convenient way of saying whatever they are reviewing is an inherent power of the other branch, and thus they have no power to review it). Anyway - fascinating from a Constitutional Law perspective. I suspect, at the end of the day, we'll find this NSA spying unconstitutional, but that the admin side will present a so-called good-faith interpretation of the law (and accompanying arguments) that it will be hard to get at them over it (at least in a legal sense). I could be wrong, though.

  2. I think my analogy is a good one if I consulted with my lawyer about the need to drive that fast to, say, stop someone I knew to be a terrorist and there wasn't time to contact the police, and we based our argument on some sort of "citizens responsibility" act. But we can go on and on about that.

    In the case of Bush, it's fairly obvious that this administration was out to increase the powers of the president from the get go, and the administration lawyers spent a lot of time studying how it had been done in the past.

    As to the power struggle, I thought the Hamdi decision was a classic case of what you're talking about. The court said Hamdi had some right to court access, but that the President also had the right to hold him as an enemy combatant because the Congress said he could when they passed the AUMF.

    Looks like the ball is in Congress's court.

    Which is why I hope the Senate doesn't make an issue of the lawyers' qualifications.

  3. Power plays among the three branches are fascinating. They've gone on since the inception of the union, of course, but are heightened at times like these. Questions arise with respect to AUMF - for example, if the reason a President can't hold someone is indefinitely is because the Constitution prohibits it, then it doesn't really matter what Congress says in the AUMF or anywhere else, because they can't override the Constitution by legislative action.

    Of course, the problem the Supreme Court has always had is it can't enforce any of its orders itself (courts in general cannot do so, they rely on the executive branch, as a rule). So if they rule against the executive and the executive gives them the finger, then what?

  4. Then the SCOTUS'll be searching for ways to get Congress to help them, rather than become irrelevant, or just lap dogs for the executive...?

    Wish these powers would hurry up and balance each other out...!

  5. Traditionally, SCOTUS ducks those fights. They won't become irrelevant. The executive has ignored the court in the past, but on balance (99.9% of the time) the court is obeyed.