by John Yoo
Critics of the NSA program appeal to the Constitution as it works in peacetime, when Congress authorizes a policy and the President carries it out. They imagine that the Constitution requires the President to check back with Congress on every strategy and tactic in the war on terrorism. The NSA program is thus illegal, they say, because President Bush neglected to get yet another law approving it. It is true that Congress offers more transparency and perhaps greater accountability to the public. But it should also be clear that, over time, the presidency has gained the leading role in war and national security because of its superior ability to take the initiative in response to emergencies.
War's unpredictability can demand decisive and often secret action. John Locke first observed that a constitution ought to give the foreign affairs power to the executive because foreign threats "are much less capable to be directed by antecedent, standing, positive laws" and the executive can act to protect the "security and interest of the public."52 Legislatures are too slow and its members too numerous to respond effectively to unforeseen situations. "Many things there are which the law can by no means provide for, and those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require."
The Framers of the Constitution well understood this principle. They rejected extreme republicanism, which concentrated power in the legislature, and created an executive with its own independent powers to manage foreign affairs and address emergencies which, almost by definition, cannot be addressed by existing laws. The power to protect the nation, Hamilton wrote in the Federalist Papers, "ought to exist without limitation," because "it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them."53 It would be foolhardy to limit the constitutional power to protect the nation from foreign threats. "The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed."
The Framers placed these responsibilities in the office of the President because of his ability to act with unity, speed, and secrecy. In the Federalist Papers, Hamilton observed that "[d]ecision, activity, secrecy, and dispatch will generally characterise the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number."54 "Energy in the executive," said Hamilton, "is essential to the protection of the community against foreign attacks."55 Wartime, that most unpredictable and dangerous of human endeavors, therefore ought to be managed by the President. "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand."56
If ever there were an emergency that Congress could not prepare for, it was the war brought upon us on 9/11. FISA was a law written with Soviet spies working out of their embassy in Washington, D.C., in mind. No one then anticipated war with an international terrorist organization wielding the destructive power of a nation. President Bush headed the institution of our government best able to respond quickly to the 9/11 attacks and to take measures to defeat al Qaeda's future attacks. While everyone would like the certainty and openness of a congressional act, the success of the NSA surveillance program depends on secrecy and agility, two characteristics Congress as an institution lacks.
But, critics respond, Congress foresaw that war might increase demands for domestic wiretapping, and still prohibited the President from using electronic surveillance without its permission. Why shouldn't Congress's view here, as in any other domestic question, prevail? Because the Constitution is the supreme law of the land, neither an act of Congress nor an act of the President can supersede it. If Congress passes an unconstitutional act, such as a law ordering the imprisonment of those who criticize the government, the President must give force to the higher law, that of the Constitution. Jefferson took just that position on the 1798 Alien and Sedition Acts. He wrote that he, "believing the law to be unconstitutional, was bound to remit the execution of it, because that power has been confided to him by the constitution."57 That does not mean that the President "is above the law," it only means that the Constitution is above the Congress, and the President.
If the critics were right, and presidents are duty-bound to obey any and all acts of Congress, even those involving the commander-in-chief power, Congress could have ordered FDR to cancel an amphibious landing in France in World War II, Truman to attack China over the Korean War, or JFK to invade Cuba in 1962. But presidents such as Jefferson, Jackson, Lincoln, and FDR believed that they had the right to take action, within their own constitutional authorities, according to their interpretation of the Constitution, especially in their role as commander in chief.
Decades of American constitutional practice reject the notion of an omnipotent Congress. While Congress has the sole power to declare war, neither presidents nor congresses have acted under the belief that a declaration of war must come before the undertaking of military hostilities abroad. Our nation has used force abroad more than a hundred times, but has declared war only five times: the War of 1812, the Mexican-American and Spanish-American Wars, and World Wars I and II. Without declarations of war or any other congressional authorization, presidents have sent troops to oppose the Russian Revolution, intervene in Mexico, fight Chinese Communists in Korea, remove Manuel Noriega from power in Panama, and prevent human rights disasters in the Balkans. Other conflicts, such as both Persian Gulf Wars, received "authorization" from Congress but not declarations of war.58
Both the President and Congress generally agree that the legislature should not interfere in the executive branch's war decisions. Congress's powers ought to be at their height at the decision to start a war, before troops have been committed and treasure or blood spent. In the Nixon-era War Powers Resolution, Congress attempted to prevent presidents from using force abroad by prohibiting the insertion of troops into hostile environments abroad for more than sixty days without legislative approval. Both sides of the war powers debate today agree that the Resolution has been a dead letter and has not prevented presidents from going to war.59 Presidents and congresses alike have realized that the War Powers Resolution made little practical sense, and instead represented congressional overreaching into presidential expertise and constitutional authority in foreign affairs.
Presidential leadership has always included control over the goals and means of military campaigns. As the Supreme Court has observed, the President has the authority to "employ the armed forces in the manner he may deem most effectual to harass and conquer and subdue the enemy."60 President Lincoln did not seek a law from Congress over whether to defend Washington, D.C.; President Roosevelt did not ask Congress whether he should make the war in Europe a priority over the war in the Pacific; President Truman did not seek legislative permission to drop nuclear bombs on Japan. Many of the wars fought since World War II, ranging from Korea to Panama to Kosovo, never received any congressional authorization. Obviously presidents should not ignore congressional leaders. A wise President will consult with them at the right time. But the Constitution does not force the President to get a letter from Congress every time he makes an important decision about wartime strategy or tactics.
Nor is Congress defenseless. It has ample powers to block wartime initiatives. It has total control over funding and the size and equipment of the military. If it does not like a war or a strategy, it can cut off funds, reduce the size of units, or refuse to provide weapons. War would be impossible without Congress's cooperation, or at least acquiescence. This is even more so the case in the age of modern warfare, which requires expensive material, high-technology weapons systems, and massive armed forces dependent upon constant congressional budgetary support.
Critics claim that Congress ought to have the upper hand in war in order to prevent military adventurism, to check war fever, and to g
uarantee political consensus. This sounds plausible, but it neglects the benefits of executive action during times of foreign threat. When Europe plunged into war, Congress enacted a series of Neutrality Acts designed to keep the United States out of the conflict. In 1940 and 1941, FDR recognized that America's security would be threatened by German control of Europe, and he and his advisers gradually attempted to bring the United States to the assistance of Great Britain and the Soviet Union.61 FDR stretched his authority to cooperate closely with Great Britain to protect convoys in the North Atlantic and provide the British with "obsolete" destroyers, among other things. American pressure on Japan to withdraw from China helped trigger the Pacific War, without which American entry into World War II might have been delayed by at least another year, if not longer.62
The Cold War is another example where consistent presidential leadership promoted our national security. Through their proxies, and often in secret, the United States and the communist bloc fought throughout the world. Congress only authorized the Vietnam War; America and its allies fought Soviet proxies in Korea, Vietnam, and Nicaragua, the Soviet Union fought against American-backed forces in Afghanistan, and the two very nearly came into direct conflict during the Cuban Missile Crisis. Generally, we prevailed through the steady presidential application of the strategy of containment, supported by congressional funding of the necessary military forces, but not through congressional decisions on when and where to wage war.63
Critics also ignore that Congress's independent judgment can be flawed on national security matters. Congress led us into two "bad" wars, the 1798 Quasi-War with France and the War of 1812. And Congress does not always bring consensus. The Vietnam War, one of the wars initially supported by Congress, did not meet with a consensus over the long term but instead provoked some of the most divisive politics in American history. It is also difficult to claim that the congressional authorizations to use force in Iraq, either in 1991 or 2002, reflected a deep consensus over the merits of those wars. Indeed, the 1991 authorization barely survived the Senate, and the 2002 authorization received significant negative votes and has become a deeply divisive issue in national politics.
Legislative deliberation can breed consensus in the best of cases, but it also can stand in the way of speed and decisiveness. Terrorist attacks are more difficult to detect and prevent than those posed by conventional armed forces and nations, and WMDs allow the infliction of devastation that once could have been achievable only by a nation-state. To defend itself, the United States may have to use force earlier and more often than at a time when nations generated the primary threats. In order to forestall a WMD attack, or to take advantage of a window of opportunity to strike at a terrorist cell, the President needs flexibility to act quickly. By acting earlier, perhaps before WMD components have been fully assembled or before an al Qaeda operative has left for the United States, the executive branch must be able to engage in a limited, precisely targeted, use of force.
Most opposition to presidential power in war has focused on the decision to start conflicts, not how to fight them. As a law professor, I have argued against the common academic view that only Congress can decide when to start a war. But as a government official, I worked to make sure this question was a moot point. By obtaining the AUMF, we wanted to make sure there could be no claim in the future that the President was acting in the war on terrorism without congressional support. That is why we wrote the law as broadly as we did, to permit the use of necessary and appropriate force against anyone connected with the 9/11 attacks. It was meant to run as broadly as the President's constitutional power to exercise full control over the waging of war.
Critics of the NSA program want to overturn American historical practice in favor of a new and untested theory about the wartime powers of the President and Congress. Our intelligence and military will have difficulty fostering innovation and creativity--and the NSA program is precisely that--if we reject decades of constitutional practice in the middle of a war. For too long, our system retarded aggressive measures to preempt terrorist attacks. But seeking to give Congress the dominant hand in setting wartime policy would render our tactics against al Qaeda less rather than more effective. It would slow down decisions, make sensitive policies and intelligence public, and encourage risk aversion rather than risk taking. It ignores the reality of the al Qaeda challenge to require the President to seek, every time he wants to make an important policy change, congressional permission first.
Claims that the NSA program violates the Constitution appeal, I think, to an entirely different concern, not one about law but about politics. It expresses the worry that if the President is waging a war, and this war has crept into the United States itself, we will centralize too much power in the President over our domestic affairs. The NSA program, however, does not signal that we live under a dictator, nor that the separation of powers has failed, the exaggerated claims of civil libertarians notwithstanding.
Instead, the other branches of government have powerful and important tools to limit the President should his efforts to defeat terrorism slip into domestic oppression. Congress has total control over funding and significant powers of oversight.64 It could do away with the NSA as a whole. The Constitution does not require that Congress create an NSA or any intelligence agency. It need not engage in anything as drastic as doing away with the NSA, of course. Congress could easily eliminate the surveillance program itself simply by cutting off all funds for it. It could also link approval of administration policies in related areas to agreement on changes to the NSA program. Congress could refuse to confirm cabinet members, subcabinet members, or military intelligence officers unless it prevails over the NSA. It could hold extensive hearings that bring to light the NSA's operations and require NSA officials to appear and be held to account. It could even enact a civil cause of action that would allow those who have been wiretapped by the NSA to sue for damages, with the funds coming out of the NSA's budget. So far, Congress has not taken any of these steps, and instead confirmed General Hayden to head the CIA. Congressional silence does not represent opposition to the President's terrorism policies.65
Courts can exercise their own check on presidential power, although one that is not as comprehensive as Congress's. Any effort to prosecute an al Qaeda member or a terrorism suspect within the United States will require the cooperation of the federal courts. If federal judges believe that the NSA's activities are unconstitutional, they can refuse to admit any information discovered by warrantless surveillance. The NSA's activities should remain limited to supporting military and intelligence operations, in order to prevent a direct attack, rather than support law enforcement.
The President can structure the NSA program to enhance public confidence that its fruits will not be used for political or law enforcement goals. While he has the constitutional authority to carry out searches in secret, it may be to the nation's advantage for the President to create a consultation process among the relevant cabinet officials, and then between the executive and legislative branches. This would give the public more confidence that the NSA was not being used to carry out political vendettas. By his own account, President Bush had already put into place an early version of this before the public outcry: Each time he approved the NSA program, he asked the cabinet officers responsible for defense and intelligence whether they believed it was necessary, and he submitted the operation to the review of White House and Justice Department lawyers. An expanded version of this could mirror, or simply adopt, the National Security Council structure, but without the legions of staff. The NSC already includes the vice president, the national security adviser, the secretaries of state and defense, and the head of the intelligence community, among others, and it is responsible for approving all covert actions before they are sent to the President for approval. Operation of the NSA program could come under the NSC's purview, although perhaps with restrictions on staff involvement to prevent leaks of sensitive information.
Pre
sidents could also reach out to Congress along the lines of the current system for covert action. Under the NSA, the executive branch notifies the House and Senate intelligence committees of presidentially approved covert actions. These committees have strong relationships with the intelligence community and hold extensive, classified oversight hearings on the nation's covert action programs and other classified intelligence operations. Again, the Bush administration made initial steps toward such a system with the NSA program by briefing selected congressional leaders. To improve public confidence in electronic surveillance of al Qaeda communications with individuals in the United States, intelligence officials could provide routine briefings to an expanded group of House and Senate leaders on the extent of NSA surveillance, its particular targets, and what value it has produced. The group would have to be kept small, and probably would have to exclude staff, to prevent crucial secrets from leaking, an endemic problem in Washington and one that is especially dangerous in war.
The Constitution creates a presidency whose function is to act forcefully and independently to repel serious threats to the nation. Instead of specifying a legalistic process to begin war, the Framers wisely created a fluid political process in which legislators would use their funding, legislative, and political power to balance presidential initiative. As we confront terrorists, potentially armed with weapons of mass destruction, we should look skeptically at claims that radical changes in the way we make war would solve our problems, even those stemming from poor judgment, unforeseen circumstances, or bad luck. The worst thing we could do when confronted by a capable, shadowy enemy like al Qaeda would be to change our government to make it harder to develop innovative policies like the NSA surveillance program.
