A group of law school professors has signed a brief, cast in the form of a letter to Congress, denying that the President has the legal authority to order warrantless surveillance of American citizens in time of war, regardless of the circumstances. Specifically included in that sweeping prohibition is listening in on conversations between citizens and known foreign terrorists. Tom Smith, a legal academic himself, has a good rejoinder to such nonsense:
Under the logic of the letter, the President could not engage in warrantless wiretapping of US persons in direct contact with foreign combatant enemies during wartime. If a US person were standing on the Capitol Mall, cell phone in hand, talking down a jetliner in so it could plough into the Capitol Building, nobody, the FBI, CIA, Air Force, nobody, could listen into that conversation (without a warrant) in an effort to stop the attack, unless, of course, the President thought to ask for such authority during the first 15 days of the war, and perhaps not even then – perhaps the attack would have to occur within the first 15 days of the war! In all seriousness I ask, can that possibly be right? . . .
This set of concerns leads quickly to the letter’s reliance on Youngstown Steel, and in particular Justice Jackson's opinion, which it is now customary not to identify as a mere concurrence. . . .
Apparently, we are supposed to conclude, on the basis of Youngstown, that Congress has the power to occupy the whole field of what would otherwise be the President’s power to act domestically in wartime to defend the country. To repeat myself, you just really have to ask, can this be true? If and when Congress passes a law that makes defense of the country by the President in wartime in some important respect impossible or highly impractical, is that just the end of the argument? . . .
I am coming to the view that it may be necessary to face the hard fact that, as shocking as it may seem, a concurrence by a not particularly distinguished Justice in a fifty year old case about steel mills may not be able to guide us through this strange new war against the let’s bring back the Caliphate crowd. . . . The sublime idiocy of the 15 day requirement is as good an illustration as one could ask for about why Congress is not so good at regulating how wars should be fought, not to imply that they are particularly skilled at other modes of regulation, just that they are notably bad in this respect, as I believe the Framers foresaw they would be.
As Professor Smith notes, the anti-surveillance brief relies heavily on Justice Jackson’s concurring opinion in Youngstown Co. v. Sawyer (1952). That decision overturned President Truman’s seizure of private steel mills to prevent a threatened work stoppage that would have interfered with armaments production during the Korean War. The Supreme Court held that executive authority does not extend that far. The majority’s diversity of opinions (a separate one for each of six Justices) focused primarily on the fact that Congress had enacted laws governing the settlement of industrial disputes, which the President could not set aside by fiat.
From that decision in that circumstance, the brief extrapolates to where we are now. Congress enacted a law in 1978 regulating foreign intelligence surveillance. On the brief’s interpretation of its terms, it requires a warrant for any eavesdropping on any communication by a U.S. person. It also establishes a procedure for obtaining warrants and includes an escape clause: Within 15 days after a declaration of war, Congress can, by resolution, reduce or eliminate the warrant requirement. So the case is, barring differences in trivial detail, on all fours with Youngstown, and the President has no authority to disregard the statute. If that’s a problem, well, Congress can make a new law. In the meantime, telephone calls to Osama bin-Laden should be protected from unapproved government intrusion.
That is the kind of logic that appeals to legal theoreticians, particularly those who would prefer that the United States engage only in rare and risk-free warfare. A generation ago, the law schools were full of profs who were convinced that American participation in the Vietnam War was unconstitutional and that the courts ought to intervene to compel withdrawal. To their disappointment, judges didn’t agree. I’m confident that they will be disappointed again.
The Constitution designates the President as commander-in-chief of the Armed Forces, not so that he can preside at military parades but because the framers of the Constitution regarded unity of command as essential to success in warfare. In the words of Justice Story,
Of all the cases and concerns of government, the direction of war most peculiarly demands those qualities, which distinguish the exercise of power by a single hand [Federalist 74 cited in a footnote]. Unity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power.
As Justice Story also observed, only one limitation on the President’s role as the exclusive commander-in-chief was proposed in the course of ratification: that he should not be allowed to take command personally in the field without the consent of Congress. Otherwise, the idea of unitary military command was uncontroversial.
Is that not remarkable? Had the Founders been modern lawyers, they would surely have refused to give one man the unfettered power to direct the army and navy in his own discretion. How did they know that he wouldn’t, under cover of fighting the nation’s enemies, round up his political opponents and establish a dictatorship? Who could stop him? Shouldn’t there be a legislative or judicial veto over how the armed forces are used?
Happily, it was not necessary to speculate about such questions. What was then recent history demonstrated that splitting the command function between the branches of government carried immediate dangers, next to which the risk of a power-mad President was rather pale.
Fearful of executive tyranny, the States-General of the United Provinces of the Netherlands (whose members were styled “Their High and Mightinesses”, a title that Senators Kennedy and Schumer must envy) sent “field deputies” to accompany Dutch armies, with the power to make final decisions about what operations they would undertake. The effect was operational imbecility.
On August 2, 1702, for instance, the Duke of Marlborough’s Anglo-Dutch-German army had cornered a greatly inferior French force near Lille.
It would seem that the ideal battle situation existed: the French were committed to a perilous march straight across the front of the stronger Allied army, which was drawn up and only awaiting the word. But the order never came. The Field Deputies on Marlborough’s staff waited upon the Captain-General and expressed their unwillingness to see Dutch troops fight in an action, which, in their view, was rendered unnecessary as the foe was clearly in retreat. [David Chandler, Marlborough as Military Commander (1984), p. 101]
An Allied victory at that moment might well have brought the War of the Spanish Succession to a swift end. Instead, it dragged on twelve more years, with not a little further hindrance from the Dutch deputies, who were “obsessed with their national security [i. e., unwilling to approve the deployment of troops very far beyond the borders of the Netherlands], or concerned with keeping casualties and expenditure as low as possible – even at the cost of vetoing promising military operations” [Chandler, p. 322].
In 1787 those events were less distant than World War I is from us, and the Dutch example was specifically invoked at the Constitutional Convention as an argument against dividing the functions of the commander-in-chief. [James Madison, Notes of Debates in the Federal Convention, sub June 2, 1787]
No one has yet (so far as I know) suggested that Congress appoint field deputies to oversee the War on Terror, but judicial control over intelligence gathering represents the same evil. Discovering the enemy’s intentions and capabilities is a “core function”, to use a phrase popular in legal circles, of the commander-in-chief. Furthermore, intelligence does not consist of random assembling of facts. It is effective only if it provides the information needed to further the commander’s strategy. Giving veto power to a third party, who may not understand, or may actually disagree with, the overall strategic vision, is a division of authority that invites disaster.
But isn’t it risky to let the President decide, all on his own, who are enemies and who is communicating with them and how those communications are to be intercepted? Sure it is risky, just as it would have been risky for the States-General to permit the Duke of Marlborough to control where Dutch soldiers campaigned and when and whom they fought. Risks must, however, be balanced. The men who wrote the Constitution believed that the risk of defeat in war was palpably more serious than the risk that the President would abuse his powers as commander-in-chief; and also, I suspect, that Presidents inclined to abuse would not be restrained by paper barriers anyway. Therefore, they wrote the office of commander-in-chief into the Constitution and gave Congress no more power to interfere than it would have, for example, to restrict his far less vital power to grant pardons.
If the National Security Agency’s surveillance program were ten times more intrusive than, by all non-hysterical accounts, it is, the United States would remain several parsecs away from a dictatorship. The path from spying on international phone calls to tearing up the Bill of Rights is a long and arduous one. From ignorance of what terrorists are doing to thousands of American deaths is a short, straight descent. The dispute about the legality of the NSA’s activities is, reduced to its essence, about whether the Constitution instructs us to march over a cliff.
Addendum: Captain’s Quarters quotes a pertinent passage from David Kahn’s superb book, The Codebreakers (pages 11–12 of the 1967 edition), concerning U.S. Army efforts to crack Japanese codes before World War II. It was flatly illegal, under the Federal Communications Act of 1934, to eavesdrop on communications between the United States and foreign countries. General George C. Marshall, the Army Chief of Staff, treated that prohibition as “a legalistic quibble”. The military routinely intercepted radio messages and quietly persuaded some cable companies to break the law by turning over copies of cablegrams. All this took place up to two years before Pearl Harbor.
By the standards set forth in the letter/brief discussed above, General Marshall and his underlings clearly acted illegally. Are the eminent law professors willing to condemn them? If so, aren’t they endorsing the view of the Constitution as a suicide pact? If not, why not?
My defense of General Marshall is that, to the extent that the Federal Communications Act restricted military intelligence operations, an essential function of the commander-in-chief, it was unconstitutional and ineffective. If that position is correct, it applies with greater force to the present time, when we are in an actual military conflict, not just taking precautions against a potential enemy.