The Unitary Executive and the Modern Presidency

Warrantless Surveillance and the Warrantless Presidency

warrantless surveillance and the warrantless Presidency k richard฀m.฀pious On January 17,2007,Senator Patrick Leahy (D-Vt.),chair of the Judiciary Committee, received a letter from Attorney General Alberto Gonzales informing the senator that a week earlier,a judge on the Foreign Intelligence Surveillance Court had issued an order authorizing “the Government to target for collection international communications in or out of the United States” if there was a reasonable belief that the messages involved members of al-Qaida or associated terrorist organizations.The letter went on to say that the “Terrorist Surveillance Program” run by the National Security Agency (NSA) “will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court.”1 The letter represented a reversal of policy for the Bush administration, which previously had authorized electronic intercepts without obtaining judicial warrants. These intercepts raised a number of constitutional and legal issues: Did warrantless surveillance violate the Fourth Amendment? Did it violate the law? When Congress passed the Authorization for the Use of Military Force (AUMF) Act in the aftermath of the 9/11 terrorist acts, did that constitute congressional authorization to use any means necessary against terrorists—including warrantless surveillance?2 Or did the president have inherent constitutional prerogatives as commander in chief to authorize the program? TheWhite House agreement to seek approval for the program from the Foreign Intelligence Surveillance Court (FISC) did not end the controversy, astheincomingchairoftheSenateIntelligenceCommittee,JohnD.Rockefeller IV (D-W.Va.), announced that he would “move forward with the committee ’s review of all aspects of this program’s legality and effectiveness.”3 164 : rIChard M. PIoUs From the president’s own party,via SenatorArlen Specter (R-Pa.),came the observation,“It is a little hard to see why it took so long.”4 At first glance it might appear that the Bush administration, stung by its losses in the midterm congressional elections of 2006, had retreated from one of its contentions about the scope of executive power.5 A closer look at the controversy demonstrates that the NSA program was part of a set of surveillance efforts that relied primarily or exclusively on executive prerogative rather than statutory authorization. These programs remain part of a system of “parallel governance,” in which the executive assumes legislative and judicial powers to create and maintain a “state within a state.” Put another way, the warrantless wiretaps were authorized by a warrantless presidency.And far from retreating from presidential prerogatives , it seemed more accurate to characterize the letter from Gonzales to Leahy as a tactical shift, from assertion of “hard” prerogative, in which the president’s power is brandished against congressional interference, to “soft” prerogative, in which congressional or judicial authorization is sought and obtained in order to make a claim of “joint concord” that reduces the likelihood of judicial or congressional checks. Prerogative Power and Parallel Governance ThroughoutAmerican history presidents have pushed their prerogatives to the limits,and sometimes beyond.The Bush administration has relied on legal counsel who pushed the theory of the “unitary executive.”6 In brief, the theory consisted of several propositions: there is an“executive branch” that the president controls through “the executive power”; all executive functions are to be exercised by the president and subordinates; Congress may not through its legislation infringe on the “core functions” of the presidency (war, foreign affairs, intelligence, national security); and the president’s powers are anterior and superior to those of Congress, which should play a perfecting role in executive initiatives. Under this theory Congress could not,through framework legislation such as theWar Powers Act,the Intelligence OversightAct,or the Foreign Intelligence Surveillance Act, regulate or limit presidential executive power in these areas. The White House acted opportunistically to exploit James Madison’s theory of partial rather than complete separation of powers.Madison,who believed that not all legislative powers should be controlled by Congress, lest the entire government fall into the “legislative vortex,” claimed that the constitutional system allowed each institution to have partial agency warrantless surveillance and the warrantless Presidency : 165 in, and partial control of, the powers of the others.7 For the Bush White House, this provided an opportunity to use quasi-legislative powers such as military orders and executive orders; to rely on an expansive reading of the commander in chief power to engage in military actions; to sidestep the treaty powers to negotiate executive agreements and reinterpret or abrogate clauses in...