PRESIDENTIAL POWERS

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PRESIDENTIAL POWERS - The Center on Law and Security

THE CENTER ON LAW AND SECURITY AT THE NYU SCHOOL OF LAWpresents:PRESIDENTIAL POWERS★★AN AMERICAN DEBATE★★APRIL 25, 2006


THE CENTER ON LAW AND SECURITY AT THE NYU SCHOOL OF LAWPRESIDENTIAL POWERS★★ AN AMERICAN DEBATE ★★April 25, 2006Special thanks to:The Henry Luce FoundationThe John Brademas Center for the Study of CongressTara McKelvey and Michael Vatis, Fellows at The Center on Law and SecurityJennifer Buntman and the staff of The Center on Law and SecurityKaren J. Greenberg, Editor in ChiefJeff Grossman, Editorial AssociateKatie Sticklor, Copy EditorDesign: Wendy BedenbaughCover Design: Wendy Bedenbaugh & Dana Lawit


The Center on Law and Security is a unique kind of think tank, bringinginfluential practitioners and intellectuals together to debate matters of criticalimportance to global stability. To that end, the Center’s frequent conferencesinclude professors, policy experts, journalists, officials, and those engaged inthe daily practice of national security. The diversity of our participants providesrare insights into the nation's political and cultural life.This conference, Presidential Powers: An American Debate, took place in themidst of one of the most controversial presidencies in American history. Theanswers to the urgent questions of our post - 9/11 era – those shaping the warin Iraq, U.S. detention policy, wiretap surveillance, and presidential signingstatements – depend upon an interpretation of the appropriate scope ofpresidential powers. The boundaries of the president's authority are not staticand settled, but rather in constant flux depending on the situation and theperspective of the people sitting in the White House, in Congress, and on theSupreme Court bench.I hope that this transcript, collecting in one place the conclusions of some ofthe country's most informed and thoughtful political analysts, will allow thepublic to better understand the breadth of the debate and to participate inthe national discussion.Karen J. GreenbergExecutive Director


PRESIDENTIAL POWERS★★ AN AMERICAN DEBATE ★★ContentsParticipant BiographiesIntroductory Remarks by Karen J. GreenbergExecutive Director of The Center on Law and SecurityKeynote Address by John Dean4910PANEL ONE: THE STATE OF THE DEBATEModerator: Professor Richard H. PildesPanelists: Sidney Blumenthal, Professor Viet Dinh, Donna Newman,Judge Richard Posner, David Rivkin, Jr.15PANEL TWO: PRESIDENTIAL POWERS: PAST AND PRESENTModerator: Professor Stephen HolmesPanelists: Mickey Edwards, Nat Hentoff, Jeffrey Toobin, Professor Sean Wilentz27PANEL THREE: CHECKS AND BALANCESModerator: Professor David GolovePanelists: Barton Gellman, Marty Lederman, Jeffrey Smith, Suzanne SpauldingPANEL FOUR: THE NATIONAL SECURITY PRESIDENCYModerator: Professor Noah FeldmanPanelists: Bob Kerrey, Anthony Lewis, Patrick Philbin, Michael VatisTable of Cases374860About The Center on Law and Security61An Introduction to The John Brademas Center for the Study of Congress63Copyright © 2007 by The Center on Law and SecurityCover Photo Courtesy of AP Images


4 PRESIDENTIAL POWERS: AN AMERICAN DEBATEPARTICIPANT BIOGRAPHIES, APRIL 25TH, 2006SIDNEY BLUMENTHAL is a senior fellow at theCenter on Law and Security at NYU School of Law. Heis a widely-published journalist, especially on Americanpolitics and foreign policy. He started his career inBoston, then wrote for The New Republic, TheWashington Post, Vanity Fair, and The New Yorker. Heserved as assistant and senior adviser to Bill Clintonfrom August 1997 until January 2001. He subsequentlywrote a book, The Clinton Wars. His other booksinclude The Permanent Campaign, The Rise of theCounter-Establishment, and Pledging Allegiance: TheLast Campaign of the Cold War.JOHN BRADEMAS, president emeritus of New YorkUniversity, was NYU president from 1981 to 1992.Before coming to New York, John Brademas served asUnited States Representative in Congress fromIndiana's third district for 22 years (1959-81), the lastfour as house majority whip. While in Congress he wasa member of the Committee on Education and Labor,where he played a leading role in writing most of thefederal legislation enacted during that time concerningschools, colleges and universities; services for the elderlyand the handicapped; libraries and museums; thearts and humanities. John Brademas is serving, byappointment of President Clinton, as chairman of thePresident’s Committee on the Arts and the Humanities.He is also chairman of the National Endowment forDemocracy and a member of the Consultants’ Panel tothe Comptroller General of the United States. Co-sponsorof the 1965 legislation creating the NationalEndowments for the Arts and the Humanities, JohnBrademas for ten years chaired the congressional subcommitteewith jurisdiction over them. He was chiefHouse sponsor of the Arts, Humanities and CulturalAffairs Act; Arts and Artifacts Indemnity Act; MuseumServices Act; Library Services and Construction Act;National Commission on Libraries and InformationServices Act; Education for All Handicapped ChildrenAct; Alcohol and Drug Abuse Education Act; andInternational Education Act. He was also a major coauthorof the Elementary and Secondary Education Actof 1965; the Higher Education Acts of 1972 and 1976,which focused on student aid; and the measure creatingthe National Institute of Education.JOHN DEAN is a visiting scholar at the University ofSouthern California. He served as counsel to the presidentof the United States in July 1970 at age 31. He waschief minority counsel to the Judiciary Committee ofthe United States House of Representatives, the associatedirector of a law reform commission, and associatedeputy attorney general of the United States. He servedas Richard Nixon’s White House lawyer for a thousanddays. Dean has written many articles on law, government,and politics. He has recounted his days in theNixon White House and Watergate in two books, BlindAmbition (1976) and Lost Honor (1982). Dean nowworks as a writer, lecturer, and private investmentbanker. In 2001 he published The Rehnquist Choice:The Untold Story of the Nixon Appointment that Redefinedthe Supreme Court; in 2002 he published an e-book,Unmasking Deep Throat; and in early 2004 he coauthoredWarren G. Harding. His newest book is Worse ThanWatergate: The Secret Presidency of George W. Bush.VIET DINH is a professor of law and co-director of theAsian Law and Policy Program at Georgetown Law. Heis currently a principal at Bancroft Associates PLLC.Prior to his appointment at Georgetown, Viet Dinh wasassistant attorney general for legal policy at the U.S.Department of Justice from 2001 to 2003. As the officialresponsible for federal legal policy, he conducted acomprehensive review of Department of Justice priorities,policies and practices after 9/11 and played a keyrole in developing the USA-PATRIOT Act and revisingthe attorney general’s guidelines. He also served asassociate special counsel to the U.S. Senate WhitewaterCommittee, as special counsel to Senator Pete V.Domenici for the impeachment trial of presidentClinton, and as counsel to the special master in In reAustrian and German Bank Holocaust Litigation. Aftergraduating from law school, where he was a class marshaland an Olin Research Fellow in Law andEconomics, Dinh was a law clerk to Judge Laurence H.Silberman of the U.S. Court of Appeals for the D.C.Circuit and to U.S. Supreme Court Justice Sandra DayO’Connor. His representative publications include“Defending Liberty: Terrorism and Human Rights” inthe Helsinki Monitor, “Codetermination and CorporateGovernance in a Multinational Business Enterprise” inthe Journal of Corporation Law, and “Financial SectorReform and Economic Development in Vietnam” inLaw and Policy in International Business.MICKEY EDWARDS is executive director of theAspen Institute-Rodel Fellowships in PublicLeadership. He is also a lecturer at PrincetonUniversity’s Woodrow Wilson School of Public andInternational Affairs and was a Republican member ofCongress from Oklahoma for 16 years (1977-92). Hewas a member of the House Republican leadership andserved on the House Budget and Appropriations committees.Since leaving the Congress he has taught atHarvard, Georgetown, and Princeton universities andhas chaired various task forces for the ConstitutionProject, the Brookings Institution, and the Council onForeign Relations. In addition, he is currently an advisorto the US Department of State and a member of thePrinceton Project on National Security.NOAH FELDMAN is a professor of law at the NewYork University School of Law, specializing in constitutionalstudies, with particular emphasis on the relation-


PARTICIPANT BIOGRAPHIES 5ship between law and religion, constitutional design,and the history of legal theory. Feldman was named aCarnegie Scholar for 2005-06. He is a contributingwriter for The New York Times Magazine and an adjunctsenior fellow at the Council on Foreign Relations. In2004-05, he was a visiting professor at the Yale andHarvard Law Schools and a fellow of the WhitneyHumanities Center. In 2003, he served as senior constitutionaladvisor to the Coalition Provisional Authorityin Iraq, and subsequently advised members of the IraqiGoverning Council on the drafting of the TransitionalAdministrative Law, or interim constitution. He is theauthor of three books: Divided By God: America'sChurch-State Problem and What We Should Do About It(Farrar, Straus & Giroux 2005); What We Owe Iraq: Warand the Ethics of Nation building (Princeton UniversityPress 2004); and After Jihad: America and the Strugglefor Islamic Democracy (Farrar, Straus & Giroux 2003).BARTON GELLMAN is a special projects reporter onthe national staff of The Washington Post, followingtours as diplomatic correspondent, Jerusalem bureauchief, Pentagon correspondent and D.C. superior courtreporter. He shared the Pulitzer Prize for nationalreporting in 2002 and has been a jury-nominated finalist(for individual and team entries) three times. Hiswork has also been honored by the Overseas Press Club,Society of Professional Journalists (Sigma Delta Chi),and the American Society of Newspaper Editors. He isauthor of Contending with Kennan: Toward aPhilosophy of American Power, a study of the post-World War II “containment” doctrine and its architect,George F. Kennan.DAVID GOLOVE is the Hiller Family FoundationProfessor of Law and director of the J.D./LL.M.Program in International Law at the New YorkUniversity School of Law. David Golove has secured areputation as one of the most original and promisingscholars in constitutional law. In a recent book-lengtharticle for the Michigan Law Review, “Treaty-Makingand the Nation: The Historical Foundations of theNationalist Conception of the Treaty Power,” Goloveconsiders a question of constitutional law that has beencontroversial from the moment of the nation's birth in1776 and remains so today. In a more recent article publishedin the NYU Law Review, Golove challenges thedistinguished constitutional scholar Laurence Tribe in adebate over the interpretation of the Treaty Clause,which Golove defended in his Harvard Law Reviewarticle. In 1999, Golove published a piece in theUniversity of Colorado Law Review supporting thepresident’s authority to order military operations toimplement a United Nations Security Council resolutionwithout authorization by Congress.KAREN J. GREENBERG is the executive director ofThe Center on Law and Security at New YorkUniversity School of Law. She is the editor of the NYUReview of Law and Security, co-editor of The TorturePapers: The Road to Abu Ghraib; and editor of AlQaeda Now and The Torture Debate in America(Cambridge University Press). She is a frequent writerand commentator on issues related to national security,terrorism, and torture and has also authored numerousarticles on the United States and Europe during WorldWar II. She has a Ph.D. in American political historyfrom Yale and teaches in the European StudiesDepartment at NYU. She is a former vice president ofthe Soros Foundations/Open Society Institute and thefounding director of the Program in InternationalEducation. She is a member of the Council on ForeignRelations and an editor of the Archives of theHolocaust, Columbia University Series. She has servedas a consultant to the NEH, the NY Council for theHumanities, the NYC Board of Education and USAID.NAT HENTOFF writes a weekly Village Voice column,in addition to writing on music for The Wall StreetJournal. Among other publications in which his workhas appeared are The New York Times, The NewRepublic, Commonweal, The Atlantic and The NewYorker, where he was a staff writer for more than 25years. Hentoff’s views on journalistic responsibility andthe rights of Americans to write, think and speak freelyare expressed in his weekly column, and he has come tobe acknowledged as the foremost authority in the areaof First Amendment defense. He is also an expert on theBill of Rights, the Supreme Court, student rights andeducation. He has published many books on jazz, aswell as biographies and novels, and a number of booksfor children. Among his works: Does Anybody Give ADamn?: Nat Hentoff on Education; Our Children AreDying; A Doctor Among Addicts; Peace Agitator: TheStory of A. J Muste; The New Equality; The FirstFreedom: The Tumultuous History of Free Speech inAmerica; The Day They Came to Arrest the Book; TheMan from Internal Affairs; Boston Boy; John CardinalO'Connor: At The Storm Center of a ChangingAmerican Catholic Church; Free Speech for Me andNot for Thee: How the American Left and RightRelentlessly Censor Each Other, and Listen to theStories: Nat Hentoff on Jazz and Country Music.STEPHEN HOLMES is the Walter E. MeyerProfessor of Law at the NYU School of Law. Holmestaught briefly at Yale and Wesleyan Universities beforebecoming a member of the Institute for Advanced Studyin Princeton in 1978. From Princeton, he moved toHarvard University’s Department of Government,where he stayed until 1985 when he joined the facultyat the University of Chicago. At the University ofChicago, Holmes served as director of the Center forthe Study of Constitutionalism in Eastern Europe and aseditor-in-chief of the East European ConstitutionalReview. He has also been the director of the SorosFoundation program for promoting legal reform inRussia and Eastern Europe. Holmes’ research centerson the history of European liberalism and the disappointmentsof democracy and economic liberalization


6 PRESIDENTIAL POWERS: AN AMERICAN DEBATEafter communism. He has published a number of articleson democratic and constitutional theory as well ason the theoretical origins of the welfare state. In 1995,he published Passions and Constraint: The Theory ofLiberal Democracy; in this work, Holmes presents aspirited vindication of classical liberalism and its notionsof constitutional government. He coauthored, with CassSunstein, a book on The Cost of Rights (Norton, 1998).BOB KERREY is president of The New School inNew York City. For twelve years prior to becoming presidentof The New School, Kerrey represented the stateof Nebraska in the United States Senate. Before that heserved as Nebraska's governor for four years. Kerreyserved for eight years on the Senate Select Committeeon Intelligence and led the post-Aldrich Ames reformsof the federal intelligence agencies. He introduced thefirst bi-partisan Social Security legislation in 1995 andre-introduced a broadly supported bill in 1999. He alsointroduced legislation that would make health care aright for all U.S. citizens and legal residents, as well ascontrol the growing cost of all health care, includingMedicare. He led the effort to reform the InternalRevenue Service in 1998 and participated withPresident George Herbert Walker Bush and PresidentClinton to balance the federal budget. Kerrey is theauthor of When I Was A Young Man: A Memoir, publishedby Harcourt Books (May 2002).MARTY LEDERMAN was an attorney advisor in theDepartment of Justice’s Office of Legal Counsel from1994 to 2002, where he concentrated on questionsinvolving freedom of speech, the Religion Clauses, congressionalpower and federalism, equal protection, separationof powers, copyright, and food and drug law.Before that, he was an attorney at Bredhoff & Kaiser,where his practice consisted principally of federal litigation,including appeals, on behalf of labor unions,employees and pension funds, with particular emphasison constitutional law, labor law, civil rights, RICO andemployment law. Most recently, he has been in privatepractice specializing in constitutional and appellate litigation.He regularly contributes to the weblogs“SCOTUSblog” and “Balkinization,” including on mattersrelating to executive power, detention, interrogationand torture. He served as law clerk to then-Chief JudgeJack B. Weinstein on the United States District Courtfor the Eastern District of New York and to Judge FrankM. Coffin on the United States Court of Appeals forthe First Circuit.ANTHONY LEWIS is a two-time Pulitzer Prize winnerfor national reporting: in 1955, for a series of articlesin the Washington Daily News, and in 1963, for distinguishedreporting in his coverage of the SupremeCourt's proceedings in that year. Lewis lectured atHarvard Law School for fifteen years, teaching a courseon the Constitution and the press. He has been a visitingprofessor at a number of schools, including theUniversities of California, Illinois, Oregon, andArizona. Since 1983, Lewis has been the JamesMadison Visiting Professor of First Amendment Issuesat Columbia University. He began his career in journalismas a deskman for the Sunday New York Times (1948-52). In 1952 he worked for the Democratic NationalCommittee, and joined staff of Washington Daily News.Lewis returned to New York Times in 1955, reportingfrom Washington (1955-64), from Europe as Londonbureau chief (1965-72), and as an editorial columnist(1969-2001). Lewis is the author of several books,including Portrait of a Decade: The Second AmericanRevolution (1964), a chronicle of the Civil RightsMovement in the United States; Gideon’s Trumpet(1964), a history of James Earl Gideon’s landmarkSupreme Court case about his right to legal counsel;and Make No Law: The Sullivan Case and the FirstAmendment (1992), an account of a Montgomery,Alabama official's 1960 libel suit against The New YorkTimes for its criticism of Montgomery’s response tocivil rights protests.DONNA R. NEWMAN is a prominent federal litigatorand criminal defense attorney. Newman predominatelypractices criminal defense in federal court and representscriminal defendants in complex litigation, securitiesfraud, money laundering, white collar crimes, civillitigation and appeals, and cases involving both internationaland constitutional law. She has represented wellover 500 hundred clients in such matters from simplefrauds to complex securities fraud and racketeeringcases. She has participated as a speaker on variouspanels on terrorism and constitutional rights and hasfrequently appeared as a guest on national televisionshows speaking on issues of constitutional rights andthe impact of 9/11 on civil liberties. One of her majorcases was the representation of Jose Padilla who wasdesignated an enemy combatant by President Bush inJune 2002. This landmark case concerning constitutionalissues and international law was litigated all the wayto the U.S. Supreme Court.PATRICK F. PHILBIN served as an associate deputyattorney general at the Justice Department responsiblefor national security and intelligence issues from June2003 until November 2005. Before moving to thedeputy attorney general’s office, he served as a deputyassistant attorney general in the Office of LegalCounsel from September 2001 to May 2003. Before hisservice in the Justice Department, he was a partner inthe Washington office of the law firm Kirkland & Ellis,where he handled primarily appellate litigation in federalcourts. He graduated from Harvard Law School in1992 and clerked for Judge Laurence Silberman on theD.C. Circuit and for Justice Clarence Thomas at theSupreme Court.RICHARD PILDES is the Sudler Family Professor ofConstitutional Law at the NYU School of Law. He isone of the nation’s leading scholars of public law and aspecialist in legal issues affecting democracy. In the


PARTICIPANT BIOGRAPHIES 7area of democracy, Pildes, along with the co-authors ofhis acclaimed casebook, The Law of Democracy: LegalStructure of the Political Process (now in its secondedition), has helped to create a new field of study in thelaw schools. While issues of democracy have been inthe background of many public-law courses, The Law ofDemocracy systematically explores issues of democratictheory in the concrete institutional, policy, and doctrinalsettings in which they have arisen historically:issues such as the right to vote, the role of direct democracy,the appropriate role of political parties, the financingof democratic elections, and the representation ofminority interests in democratic institutions. Pildes isalso an engaged public intellectual and an active publiclawlitigator. He has written for The New York Times,The Wall Street Journal, The New Republic, TheAmerican Prospect, and similar journals. Apart from hisacademic work, Pildes has also served as a federalcourt-appointed independent expert on voting rights litigation,an assistant to a special master for the redistrictingof a state legislature, and has worked with thestate of North Carolina in redistricting litigation beforethe United States Supreme Court. He clerked for JudgeAbner J. Mikva of the U.S. Court of Appeals for theDistrict of Columbia Circuit and for Justice ThurgoodMarshall of the U.S. Supreme Court, after which hepracticed law in Boston. He began his academic careerat the University of Michigan Law School, where hewas assistant and then full professor of law from 1988until joining the NYU School of Law faculty. He hasbeen a visiting professor at the University of Chicago LawSchool, Harvard Law School, the University of Texas LawSchool, and was a fellow in Harvard’s prestigiousProgram in Ethics and the Professions from 1998-1999.JUDGE RICHARD POSNER is a senior lecturer atthe University of Chicago Law School, where he hasbeen a member of the faculty since 1969. In 1981,Richard Posner was appointed judge of the U.S. SeventhCircuit Court of Appeals by President Ronald Reagan.He served as the chief judge from 1993 to 2000. Priorhis position at the University of Chicago Law School,he was associate professor at Stanford Law and alsoserved as general counsel of the President's Task Forceon Communications Policy. Following his graduationfrom Harvard Law School, Judge Posner clerked forJustice William J. Brennan Jr. From 1963-65, he wasassistant to Commissioner Philip Elman of the FederalTrade Commission. For the next two years he was assistantto the solicitor general of the United States. JudgePosner has written a number of books, includingEconomic Analysis of Law (6th ed., 2003), TheEconomics of Justice (1981), Law and Literature (2ded. 1997), The Problems of Jurisprudence (1990),Cardozo: A Study in Reputation (1990), The EssentialHolmes (1992), Sex and Reason (1992), OvercomingLaw (1995), The Federal Courts: Challenge andReform (1996), Law and Legal Theory in England andAmerica (1996), The Problematics of Moral and LegalTheory (1999), Antitrust Law (2d ed. 2001), Law,Pragmatism, and Democracy (2003), Catastrophe: Riskand Response (2004), Preventing Surprise Attacks:Intelligence Reform in the Wake of 9/11 (2005), as wellas books on the Clinton impeachment and Bush v. Gore.Judge Posner has written many articles in legal and economicjournals and book reviews in the popular press.He has taught administrative law, antitrust, economicanalysis of law, history of legal thought, conflict oflaws, regulated industries, law and literature, the legislativeprocess, family law, primitive law, torts, civilprocedure, evidence, health law and economics, law andscience, and jurisprudence. He was the founding editorof the Journal of Legal Studies and (with OrleyAshenfelter) the American Law and Economics Review.DAVID RIVKIN, Jr., is a partner in the Washingtonoffice of Baker & Hostetler LLP, a visiting fellow at theNixon Center, a contributing editor of National Reviewmagazine and a member of the U.N. Subcommission onthe Promotion and Protection of Human Rights (anexpert body, supporting the U.N. Human RightsCommission). He specializes in regulatory – e.g., energyand environmental matters – and appellate litigationwork with a particular emphasis on complex constitutionaland public policy issues. Before returning to theprivate sector in 1993, Mr. Rivkin served in a variety oflegal and policy positions in the Reagan and George H.W. Bush administrations, including stints at the WhiteHouse Counsel’s office, Office of the Vice Presidentand the Departments of Justice and Energy. He haspublished for various newspapers and magazines,including The Wall Street Journal, The Washington Post,The New York Times, The Washington Times, LosAngeles Times, Foreign Affairs, Foreign Policy, NationalInterest, National Review, Policy Review, HarvardJournal of Law & Policy, American University LawReview, Administrative Law Journal, University ofPennsylvania Law Review, and University of ChicagoJournal of International Law. He has been a frequentcommentator and guest on TV and radio shows, includingCNN, MSNBC, ABC/Nightline, NBC, FOX News, NPR,BBC, Canadian Broadcasting Corporation, and numerousAustralian, French, German, and Swiss TV stations.JEFFREY SMITH is the responsible partner forArnold & Porter, LLP’s government contracts and publicpolicy group. In October 1996, he rejoined the firmafter serving as general counsel of the CentralIntelligence Agency from May 1995 to September1996. In May of 1993, Secretary of Defense Perryappointed Smith to the congressionally mandatedCommission to Review the Roles and Missions of theArmed Services. Previously, he chaired the JointSecurity Commission established by Secretary ofDefense Les Aspin and Director of Central IntelligenceR. James Woolsey to review security policy and practicesin the defense and intelligence communities. Inlate 1992 and early 1993, he served as the chief of theClinton transition team at the Department of Defense.Prior to joining Arnold & Porter, Smith served as the


8 PRESIDENTIAL POWERS: AN AMERICAN DEBATEgeneral counsel of the Senate Armed ServicesCommittee. He also was Senator Sam Nunn's designeeto the Iran/Contra Committee and the Senate SelectCommittee on Intelligence. Prior to working for theSenate, he was an assistant legal adviser at the StateDepartment. Earlier, as an army judge advocate generalofficer, he served as the Pentagon’s lawyer for thePanama Canal negotiations. He has lectured and writtenon national security and international law, and is amember of the Council on Foreign Relations.SUZANNE SPAULDING is a Principal at BinghamConsulting Group. She is an authority on nationalsecurityrelated issues, including terrorism, homelandsecurity, critical infrastructure protection, cybersecurity,intelligence, law enforcement, crisis management,and issues related to the threat from chemical, biological,nuclear, or radiological weapons. She was recentlythe executive director of two congressionally mandatedcommissions: the National Commission on Terrorism,chaired by Amb. L. Paul Bremer III, and theCommission to Assess the Organization of the FederalGovernment to Combat the Proliferation of Weapons ofMass Destruction, chaired by former CIA Director JohnDeutch. Suzanne served as minority staff director forthe U.S. House of Representatives Permanent SelectCommittee on Intelligence. Her previous legislativeexperience includes serving as deputy staff director andgeneral counsel for the Senate Select Committee onIntelligence and as legislative director and senior counselfor Senator Arlen Specter (R-PA). She has alsoworked for Representative Jane Harman (D-CA). Shewas assistant general counsel at the CIA, including aposition as legal adviser to the Nonproliferation Center,and also spent several years in private practice. In 2002,she was appointed by Virginia Governor Mark Warnerto the Secure Commonwealth Panel, established afterthe attacks of September 11 to advise the governorand the legislature regarding preparedness issues inthe commonwealth of Virginia.JEFFREY TOOBIN is a legal analyst for CNNWorldwide. Based in the network’s New York bureau,Toobin joined CNN in April 2002. Toobin joined CNNfrom ABC News, where, during his seven-year tenure asa legal analyst, he provided legal analysis on thenation's most provocative and high-profile cases,including the O.J. Simpson civil trial and the KennethStarr investigation of the Clinton White House. Toobinreceived a 2000 Emmy Award for his coverage of theElian Gonzales custody saga. Toobin remains a staffwriter at The New Yorker, where he has been coveringlegal affairs for the magazine since 1993. He has writtenarticles on such subjects as Attorney General JohnAshcroft, the 2001 dispute over Florida’s votes for president,the Paula Jones sexual harassment case, SupremeCourt Justice Clarence Thomas and the trial of TimothyMcVeigh. His article “An Incendiary Defense”, publishedin the July 25, 1994 issue of the magazine, brokethe news that the O.J. Simpson defense team planned toaccuse Mark Fuhrman of planting evidence and to play“the race card.” Previously, Toobin served as an assistantU.S. attorney in Brooklyn. He also served as anassociate counsel in the Office of Independent CounselLawrence E. Walsh, an experience that provided thebasis for his first book, Opening Arguments: A YoungLawyer's First Case – United States v. Oliver North.Toobin has written several critically acclaimed, bestsellingbooks including A Vast Conspiracy: The RealStory of the Sex Scandal that Nearly Brought Down aPresident; The Run of His Life: The People v. O.J.Simpson; and Too Close to Call: The 36-Day Battle toDecide the 2000 Election. All three books were publishedby Random House.MICHAEL VATIS is a senior fellow at the Center onLaw and Security at the NYU School of Law and counselat Steptoe & Johnson. From 2003 to 2004, Vatisserved as the executive director of the MarkleFoundation Task Force on National Security in theInformation Age, an expert group made up of technologycompany executives, former government officials,academics, and civil libertarians. He served as associatedeputy attorney general and deputy director of the executiveoffice for national security at the Department ofJustice from 1994 to 1998. From 1993 to 1994, Vatiswas special counsel at the Department of Defense,where he served as a special counsel in the Office ofGeneral Counsel, advising the secretary of defense, thedeputy secretary of defense, and the general counsel onsensitive legal and policy issues. Vatis served as a lawclerk for U.S. Supreme Court Justice ThurgoodMarshall and for then-Judge Ruth Bader Ginsburg onthe U.S. Court of Appeals for the District of ColumbiaCircuit. He practiced law with the firm of Mayer,Brown & Platt in Washington, D.C., specializing inSupreme Court and appellate litigation, and subsequentlywas an attorney with Fried, Frank, Harris,Shriver and Jacobson.SEAN WILENTZ is the Dayton-Stockton Professor ofHistory and the director of the Program in AmericanStudies at Princeton University. He studies U.S. socialand political history, specializing in the early nation andJacksonian democracy. A contributing editor to TheNew Republic, Wilentz lectures frequently and has writtensome two hundred articles, reviews, and op-edpieces for publications such as The New York Times, LosAngeles Times, The New York Review of Books, LondonReview of Books, The American Scholar, The Nation, LeMonde, and Salon. He is the author of ChantsDemocratic (1984) and The Kingdom of Matthias(1994). Wilentz is also the coauthor and coeditor of TheKey of Liberty (1993) and the editor of several otherbooks, including Major Problems in the Early Republic(1992) and The Rose and the Briar (2004, Greil Marcuscoeditor), a collection of historical essays and artisticcreations inspired by American ballads. His most recentbook is The Rise of American Democracy: Jefferson toLincoln (2005).


INTRODUCTORY REMARKS 9INTRODUCTORY REMARKS BY KAREN J. GREENBERGEXECUTIVE DIRECTOR OF THE CENTER ON LAW AND SECURITYI’d like to say a few words about my expectations for today. John Dean asked me what wewould like to accomplish. What we would like to accomplish with this conference, and withThe Center on Law and Security, is to create a sustained, engaged dialogue, something thatthere is much too little of in the United States today. We call ourselves non-partisan, but wedo not really mean non-partisan. We mean facilitators in getting people to let go of theirbiases and their angers and to talk to one another.In preparing for today, and thinking about all of the presidential histories and theoriesof presidential power that I’ve come across, none of them seemed perfectly appropriate forthe event. But one novel did. It is a novel written in 1971 written by Wallace Stegner calledAngle of Repose. I do not know how many of you have read it, but I recommend that if youwant to understand this country, and not just from the point of view of the East Coast, youshould read this book.The central metaphor describes the falling of trees and the way in which they comefinally to a stop, on a hill perhaps, there to find their angle of repose. That angle is an angle ofcomfort, of least resistance, and an angle in which the environment can continue to functionaround the fallen trees. Today, in this country, we are in search of that angle of repose, andwe have yet to find it.In fact, we are currently in a state of free fall. And the purpose of today’s conference isto begin to think outside of the discrete issues of presidential powers and towards the broaderissues of what our country stands for, what our country is, and where it is going. You canpick your own clock. It could be 9/11, it could be the end of the Cold War, it could be theKennedy assassination, but something did happen in the latter half of the 20th century or thebeginning of the 21st which unpinned the moorings of this country.This period of instability – which is what Angle of Repose is about, regaining stability– is the question that we confront. Whether we call it insecurity, whether we call it nationalsecurity, what we are really looking for is our own angle of repose.★★★“We have many events at the law school that bring very, verydistinguished speakers, but it is hard to imagine something thatwas better put together and has brought more of the relevantplayers to a more important debate than this one.”– RICHARD REVESZ, Dean of the New York University School of Law


10 PRESIDENTIAL POWERS: AN AMERICAN DEBATEKEYNOTE ADDRESS BY JOHN DEANThe debate over presidential powers was one of the most contentious issues at the ConstitutionalConvention, and has never been resolved. I did think a few issues had been settled along the way;for example, in the aftermath of Watergate, I thought the concept of the imperial president wassomething that had made its way to the history books. I was quite wrong.When I first started at the White House, I wasn’t sure what the counsel to the president did.I had a good idea of the general process of the White House counsel’s office – clearing conflictsof interests and handling questions that would come up from various departments and agencies,as well as preparing materials, including the rules regarding contacts with independent regulatoryagencies, which we would distribute to all of the staff. I did not know, however, what thepresident specifically had in mind. By the time I got there in July of 1970, Mr. Nixon had beenthinking about exactly what he wanted his counsel to do.He had sent me a memo, although I did not know it until I made some inquiry. The memohad been sent by the staff secretary, a fellow by the name of John Brown, who was younger thanI, and lower in the pecking order, so to speak. Brown's memo asked me to take a look at a newlypublished magazine called Scanlon’s Monthly which had a made a heavy charge against then-VicePresident Spiro Agnew, claiming that Agnew was going to repeal the Bill of Rights and cancelthe 1972 election. After a bit of investigation, I found that this was not a request from JohnBrown, but rather that he was passing on a request from the president that I take a look at theScanlon charges against Agnew. By having Brown pass on the assignment, of course, it gave thepresident some deniability given what he asking for.President Nixon wanted me to “do something” about these false charges about Agnew. So Ithought about my first assignment from my client, the president of the United States. The chargesagainst Agnew struck me as ludicrous on their face. So I thought, “Well, good counsel tells youwhen not to do anything as well as when to do something.” So my first memo to the presidentsaid, “This is pretty absurd. I’ve looked at the magazine. It’s got a very limited circulation. Don’tworry about it. Don’t do anything.”A few days later I got another memo from the staff secretary, saying that my memo did notdeal with the problem. This time, the president suggested that I should start an IRS tax auditagainst this magazine. Well, for openers, I did not have a clue how anybody could start a tax audit.Secondly I thought, “Isn’t this a little bit of an overreaction? Here’s a new magazine that has nocirculation for all practical purposes, and was causing no harm.” But clearly the president thoughtdifferently, and had given this his considered thought. I didn’t quite know what to do next.Not long after receiving that note back from the president, I went over to the staff mess in thelower level of the White House for dinner. The only person seated at the table was a person I knewhad been with Mr. Nixon for a number of years. He was an attorney, and he had been at the WhiteHouse since January of 1969, so he knew the way things operated. I did not arrive until July of 1970.His name was Murray Chotiner, a name some might remember. I explained the assignment toMurray. He said, “Wait a minute, John. First of all you shouldn’t even be talking to me about this.”“How so?” I asked. “Well, there’s an unwritten rule of ‘need to know’ around here, and I don’tneed to know this,” he said. “Think about it. The president is the chief executive officer, the headof the executive branch. If he wants his IRS, also a part of the executive branch, to start a tax auditof any taxpayer, that’s totally within his power to do so. So go on back and see what you can doabout it because, John, if you don’t do it, I promise you, he will find somebody who will do it.”That was my first lesson about presidential power. As I walked back to the office thinkinghow much I liked my new title of counsel to the president, which I was anxious to keep for a fewmore days, I was still not quite sure quite what to do. And to this day, I am not sure what I would


KEYNOTE ADDRESS 11have done next had Jack Caulfield, a former NYPD detective assigned to my staff, not provided asolution. Caulfield had hooked up with Mr. Nixon during the 1968 campaign as part of hissecurity detail. He was on his way to the Department of Treasury, and was temporarily parked inmy staff until those details were worked out. I said to him, “Jack, I’ve got this request and I don’thave a clue about how to handle it.” He said, “Let me take a look at it for you.” So I gave him thememos I had received, and he left. A few days later he stopped by my office, and said, “John, youcan send a note to the president, and tell him that the tax audit on Scanlon’s Monthly is under way.”Right then and there I had clearly crossed the line for the first time, and it had been very easyto do. With hindsight, I can see that it was an abuse of presidential power. I had been uncomfortablewith it, and when Caulfield came along, he provided a solution. I thought that I had kept myhands clean, since someone else had done the dirty deed. I still don’t know how Caulfield startedthe tax audit, and never asked him. Nor did I bother to pass on his information to the president.This was the kind rationalization process that was frequently engaged in by members of theWhite House staff, particularly young people at the White House. This is how we got ourselvesinto trouble. No one wanted to question the president. No one wanted to tell him what he wasdoing was wrong. In fact, no one wanted to believe it was, in fact, wrong. This was particularlytrue when you got into the gray area of national security, a truly fuzzy area of law where thelimits and lines of presidential authority are less than clear. Over the years I’ve talked to peoplelike Egil “Bud” Krogh, who was one of my contemporaries at the White House, about his role inheading up the infamous “plumbers' unit,” a “special investigations unit” that was designated totrack down leaks after Daniel Ellsberg leaked the Pentagon Papers. The plumbers, of course,would break into Ellsberg’s psychiatrist’s office looking for information to publicly discredit him.Not too long ago, Krogh and I were talking about those days, and I said, “Bud, I think if we’d havethrashed some of these things out you might have come to a different conclusion about some ofthe decisions you made.” He said, “Well, John, you know why you weren’t asked about any ofthese things?” I responded that I did.Not long before the plumbers unit was set up, but after Ellsberg had leaked the papers, I gotanother peek at Nixon’s vision of presidential powers. Jack Caulfield was not frightened by verymany things, but one day he came into my office and said, “I’ve just been down in Chuck Colson’soffice and Chuck wants me to break-in and fire bomb the Brookings Institute.”“What?”“Colson,” he said, “is convinced there are a set of the Pentagon Papers there, and that theBrookings Institute is planning a study based on these documents. But President Nixon wantsthese papers.” In fact, years later, I would listen to several tapes with Nixon literally pounding onhis desk, demanding that somebody break into the Brookings Institute and get those papers forhim. But I didn’t know this at the time.“Jack,” I said, “do nothing.” The president was at the western White House for his summerstay. I jumped on the next courier flight to California, figuring I’d better make a direct appeal ofthis situation, as strongly as I could. So I flew to California and the next morning went to JohnEhrlichman, who was the titular supervisor for both Colson and I. I explained what Caulfield hadtold me; that the plan was to fire bomb the Brookings Institute and then send burglars in after thefire department arrived, and during the chaos, the burglars, dressed as firemen, would crack openthe safe. I said, “John, this is absolutely insane. Can you imagine if somebody’s killed or dies asa result of this? It’s a capital crime, and it’s going to be traceable right back to the White House.”Ehrlichman, as he was wont to do, looked over his glasses, picked up the telephone and saidto the White House operator, “Get me Chuck Colson.” Colson was instantly on the line andEhrlichman continued, “Chuck, our young Counsel Dean is out here. He doesn’t think theBrookings plan is a very good idea. Cancel it.” He hung up the phone, looked over at me, and said,“Anything else this morning, Counselor?” I said, “No thank you, John. I’ll go back to Washington.”


12 PRESIDENTIAL POWERS: AN AMERICAN DEBATEBecause I injected myself into this scheme, it ended. But Krogh later told me that becauseof my actions he was forbidden to discuss his work at the plumbers unit with me. In Bud’s words,“A lot of people around here think you’ve got a little-old-lady outlook.”I mention these exercises of presidential power, the Scanlon’s Monthly and Brookingsincidents, because they were typical of the mentality at the Nixon White House. While I rationalizedmy way around one incident, and tossed a monkey wrench into another, there were manyoccasions when I was not sure whether at my age, being in my early thirties, I was just naive aboutthe way this place worked.Today I do not believe I was naive. I think it was just wrong. Every instinct told me that, andI was troubled by it. While I found myself rationalizing various things, at the time I really was notsure how far presidential powers reached. One of the lessons that is quite clear is that the presidentcan pretty much get anything he wants done by somebody who works for him. People whowork at the White House are extremely loyal, extremely close, and very closed-mouthed. As ithappens, I was none of those things.But until I was under a subpoena, I never talked to anyone about anything at the WhiteHouse. I did not talk to the press while I was there; in fact, I never talked to the press during thetotality of Watergate. As counsel for the president I was just high enough in the pecking order tosee most everything that was happening below me as well as above me, and the only people aboveme were Haldeman, Ehrlichman, Kissinger and Nixon – and Spiro Agnew, who was not in theday-to-day loop. It was a good vantage point from which to watch the operations.In thinking about the exercise of political power, one of the things that became apparent veryquickly was that first-term presidents filter everything they do through the expected politicalreaction. I cannot think of anything that Nixon did during the first term that I was aware of thathe didn’t carefully look at the political implications of. Nixon, of course, introduced what is nowknown as the permanent campaign. Everything at the White House is judged by its politics.Everything from Trisha Nixon’s wedding, which was planned for its political impact, toNixon’s thinking about how to deal with the leak by Daniel Ellsberg of the Pentagon Papers. Asit happens, those two events are directly linked. When Nixon first heard of the leaks, it was themorning after Trisha’s wedding. She was married on a Saturday. On Sunday, June 13, 1971, thefirst in the series of the Pentagon Papers appeared in The New York Times.The president had gone to his office to look at the coverage of the wedding, which was onthe front page, and he just happened to notice this other story on the front page, which was areport about the study undertaken by the Pentagon into the decisions that had resulted in the everincreasingcommitment of American troops to Vietnam. Nixon had no serious reaction to thestory. Rather he thought, “This doesn’t hurt me, this doesn't hurt my presidency. It’s pretty hardon the Democrats. Let’s have more of it.” But the next morning he would change his mind. OnMonday, Henry Kissinger returned from a foreign trip, and he immediately changed the president’sthinking about the leak of the Pentagon study. He said, “Mr. President, this is going to hurtmy ability to deal with the North Vietnamese. It’s going to hurt and hinder our ability to openchannels with China.”Henry, who knew Daniel Ellsberg and had a sort of personal animosity against him, thoughtit was pretty typical and pretty unseemly of Ellsberg to do this. But Henry also knew how tooperate presidential power, and he knew the button to push on Richard Nixon that would start thisup. He said, “Mr. President, if you don’t deal effectively with Dan Ellsberg the world is going tothink you're a weakling.” As soon as Nixon’s manhood got involved in this, everything changed.In fact, those of us who have compared notes about the Nixon White House in the years sinceall look to that event. That’s when everything changed. That is when it became really dark. Thatwas when Nixon started pounding on his desk, calling for the break-in at Brookings Institute, onrepeated occasions. That is when he created the plumbers unit; that was when he instructed Bud


KEYNOTE ADDRESS 13Krogh to put polygraphs on anybody and everybody that might be leaking at the StateDepartment or in the National Security Council. So it was a dramatic moment, and it was essentiallypolitical. Nixon was suddenly looking at the politics of his manhood being threatened bythis, and that was not what he wanted, for he wanted to be seen as a strong president. I see thesame thing in Bush II, and I’ll turn to that next.Let me tell you why I have all these years later written a book called Worse than Watergate:The Secret Presidency of George W. Bush. As the title suggests, it is a book about presidentialsecrecy. Evidence of the secrecy that would be a hallmark of the Bush/Cheney presidency firstcame to my attention during the presidential campaign in 2000. It came up in a very odd way.After Cheney appointed himself to be vice president, everyone expected that his health recordswould be forthcoming. The Bush administration repeatedly promised to release the information,but it was never released. The handling of Cheney’s health records started my antenna quivering.But what really got my attention was when Bush and Cheney arrived in the White House,and one of the first actions was to issue an executive order that for all practical purposes repealedthe 1978 law on preserving presidential records. (The law, in essence, makes presidential recordsavailable to the American people, who really own them. Twelve years after a president leavesoffice, his papers are to be made public. Former presidents are given ample time to write amemoir based on those records before they become public. After twelve years, the burden shiftsto the former president if he or she wishes to keep them secret.)When George W. Bush arrived at the White House, there were some 60,000 contested Reaganpapers, as well as his father’s papers as vice president, which required a presidential decision toeither keep the papers private, or release them pursuant to the 1978 law. Reagan was the firstpresident to fall under the 1978 law. Bush asked for an initial 60-day delay, then another 60-daydelay, and finally he issued an executive order in which he literally gutted the law, effectively makingit a nullity. After several historians filed a lawsuit, the White House made a token productionof the contested Reagan papers. The issue has been sitting in federal court since 2001, and thejudge has not resolved it. But Bush’s executive order gutting the law remains very much in effect.As it stands, the law remains gutted. A lot of work has been undone by a president decidingthat he will nullify the law with the flair of a pen. It was striking. This sparked my desire to writecolumns about the Bush White House, thinking maybe I should send some signals to these guysfrom somebody who knows about secrecy, and who has seen how secrecy operates in a WhiteHouse, which is typically not for good but for ill.After 9/11, I watched the activities of the Bush administration, and its secrecy only becameexacerbated. I think everybody would agree that during the first few weeks after 9/11, we wereall pulling for Bush. He had a great unifying effect. He was hesitant for the first few days, butthen he suddenly became almost eloquent, as he gave some very helpful speeches. For example,his speech to the joint session of Congress and his speech at the National Cathedral wereabsolutely articulate and captured the national mood. I thought, “My God, he’s like Lincoln, he’srising to the occasion.”Then I suddenly saw something different. I realized that Bush and his advisers had seen thepolitical potential of the situation. Ever since, they have used the tragedy of 9/11 and the fear itengenders for political purposes. They do everything possible to keep Americans frightened; theyhave used it for political excuses and justifications with great success. Since nobody in the mainstreamnews media was writing about the really excessive secrecy that had been imposed by thisWhite House, where they virtually pull the shades and slam the doors, I decided that I should doit. I had some good inside information that I would write about it. I assembled a catalogue of whatwas going on behind closed doors, and I made what turned out to be prescient predictions abouthow some of these matters were not likely to turn out well. It was very easy.I didn’t pick the title of Worse than Watergate lightly. No one died as a result of Nixon’s so-


14 PRESIDENTIAL POWERS: AN AMERICAN DEBATEcalled Watergate abuses. And no one was tortured. These were distinguishing features for me.I certainly did not use my title as an apology for Watergate, but rather because I believe theevidence is overwhelming that the situation today is worse.I was not part of the national security community. Nonetheless, it took me no time at all todeconstruct Bush’s State of the Union address before we went to war. I dissected it, if you will,based on readily available public information. Frankly, I was stunned by how easy it was to showthat what the president was saying was either false or highly contested. Everyone was buying it,however, and the same would happen with Colin Powell’s presentation to the U.N. I deconstructedGeneral Powell’s remarks too, and I found them very disquieting. Familiar as I am with how theNixon White House worked, I had never seen a major speech filled with knowing falsehoodsproduced by Nixon’s speech writers.I had seen, to the contrary, that Richard Nixon was always highly insistent on getting theinformation in his major addresses absolutely right, and if he had any doubts, or if he had anyquestions, the matter would stay out. Nixon’s lies about Watergate were almost all extemporaneous,until they were assembled at the end and he was stuck with them. I found a very differentmentality emerging across the national security apparatus of the Bush White House, and it was avery troublesome one. In writing Worse than Watergate, I wrote it not as a partisan, because thosejuices are long gone. My only partisan interest now is in good government.I find it remarkable that Bush and Cheney are recreating a bulked-up “imperial presidency.”Why is this happening? The best I can figure out is that Dick Cheney was sitting right outside theOval Office as President Gerald Ford’s chief of staff while Congress was deconstructing theimperial presidency. When Cheney became chief of staff, I still knew many who had stayed onfrom the Nixon staff, and Cheney had a very difficult time in that post.He had a serous problem with leaks. Many of the old Nixon people were saying that theydidn’t realize how good Haldeman was until he was gone and the like. Things were fallingthrough the cracks, so it was a bad time for Cheney. I think it singed him, as he sat there whilethe imperial presidency was being deconstructed; he has never gotten over it. When he was laterelected to Congress, he would certainly be more of an executive branch man than a congressionalman, even when he became part of the congressional leadership. Of course, that continued whenhe left Congress to become a cabinet officer – secretary of defense.There is something unique about the Bush/Cheney presidency. I’ve been looking to see if Ican find a precedent for a presidency that has made it a part of the president’s agenda to expandpresidential powers. That is an announced part of the Bush/Cheney agenda. It was mentionedduring the 2000 campaign. They started with small steps pre-9/11, and big steps following 9/11.It has clearly been part of the agenda of this presidency from day one – including Cheney’s taskforce on oil, which caused the Government Accountability Office to issue a subpoena and tobring the first lawsuit against a federal officer – ever – since the GAO was created in 1921. Italked to the top people at the GAO about why they didn’t pursue an appeal when they lost in thedistrict court under a ruling from a duly appointed Bush district judge. They had good reasons –they might lose even more, for the law in this area is very settled.The GAO loss was a serious hit. We have a situation where the existing precedent really cutsthe GAO off from even getting information from the executive branch. That, of course, is theirjob as the accounting arm of Congress. During the height of Watergate I convinced Haldemanthat we should let the GAO audit our White House books. It was government money and they hada right to know how it had been spent. They did, and they found nothing. There was no problem.I am sure there would have been no problem had there been a GAO audit of Cheney’s energy taskforce and other things. So Bush and Cheney are doing lots of little things – as well as big ones –to gather power for the presidency.Secrecy is another form of power, and it is being used for that purpose as well. There is no


PANEL ONE: THE STATE OF THE DEBATE 15question that no one can govern in a fish bowl, and that there are areas where some secrecy isnecessary, but I think we have gone to such an extreme that it has become a troubling development.Nothing is surprising about what is happening, because we are in a very typical pattern ofoccurrences during secret presidencies. I wrote a column in April, 2006, looking at informationdeveloped several years ago by political scientist James David Barber. Barber summed up Nixon’spersonality perfectly, and made similar analyses of other presidents. He predicted what Nixonwas going to do.Barber studied how presidents attack their job. Do they attack it aggressively or passively?Nixon was clearly an aggressive president. Barber also studied the kind of satisfaction that presidentsget from their work. Is it positive or negative? He found that for Nixon it was a generally negativeexperience. He labeled presidents who were aggressive in pushing their plans and policies,but who did not get personal satisfaction from doing so, “active/negative” presidents. His otheractive/negative presidents were Woodrow Wilson, Herbert Hoover, and Lyndon Johnson.While I am cautious about typologies, I am convinced that George W. Bush is anotheractive/negative president. That is not good. Active/negative presidencies – as you must realizefrom my list – do not end well, regardless of the powers involved.PANEL ONE: THE STATE OF THE DEBATEModerator: Professor Richard H. PildesPanelists: Sidney Blumenthal, Professor Viet Dinh, Donna Newman, Judge Richard Posner, David Rivkin, Jr.Richard Pildes:Power inevitably flows to the presidency duringtimes of war or major security threats.Whether we look at Woodrow Wilson in WorldWar I, Franklin D. Roosevelt in World War II,HarryTruman in Korea, John F. Kennedy duringthe Cuban Missile Crisis, or Vietnam, thishas been the pattern in the way American institutionswork, probably even moreso since thenuclear age than before. This shift in powerincludes both the practical exercise of powerand subtle shifts in the legal understanding ofthe powers of the presidency by other actorslike courts and the Congress. There are deepstructural and institutional reasons why we seethis pattern recurring in these circumstances.Rather than deny this fact or rail against it inthe abstract, I believe that taking it as a fact isthe only credible starting point for seriousanalysis of presidential powers during wartimeor times of threat. Given that power will flowtowards the presidency in these periods, thequestion is, what are the risks associated withthat? What are the strategies or devices formanaging that risk?I want to suggest, in particular, two verydifferent kinds of strategies for this situation.The first strategy is one of institutional design.The second strategy focuses on what I wouldcall the political culture of the executivebranch itself. One of the great questions here iswhether institutional strategies for managingthis reality are likely to be effective, or whetherinstead all we can depend on in these circumstancesis this much softer notion of the politicalculture of the executive branch itself.On institutional design, the standardanswer about how the American system managesthis risk during wartime, or security-threatperiods, or crises, is the system of checks andbalances and the separation of powers. That isthe original constitutional design for managingthese issues. We repeat the mantra of separationof powers during these periods, but there are atleast three major problems with this means ofchecking presidential power that have becomeapparent, and that we haven’t fully confronted inthinking about these issues.The first is that the checks and balancesidea assumes that Congress wants responsibility


16 PRESIDENTIAL POWERS: AN AMERICAN DEBATEfor engaging these issues. For the most part, itdoes not. Indeed, Congress wants to run awayfrom responsibility for sharing the risks ofmaking these sorts of decisions. The pluralheadedstructure of 535 members of Congress,the diffusion of accountability, the diffusion ofresponsibility, generally leads to Congresssitting back and waiting to see how things go,and then jumping on the bandwagon if they gowell, or distancing itself from the president ifthings go badly. The need here is not for moreforceful moral exhortations and abstractappeals to Congress to fulfill its “duty.”Instead, the task is to determine how to structureinstitutions so as to make Congress actuallytake responsibility for policymaking and oversightduring these periods.Second, the Constitution did not anticipatethe rise of political parties, nor how partieswould dramatically shift the relationships originallyimagined between the branches of government.Once you have political parties thatgenerate unified political interests across thebranches, at least during unified government, itis much less likely that you will get ambitioncounteracting ambition in the Madisonianvision. Instead, the ambitions of political figuresacross the branches are linked throughtheir shared interest in the success of the politicalparty with which they are affiliated. Thus,one critical question we might think about hereis whether there is a way of recreating checksand balances in an age of political parties. Inparticular, we might think of means by whichto empower the minority party in Congress,particularly during unified government, to dothings like call hearings, obtain information,participate in oversight, and the like. If checksand balances is the vision animating our institutionaldesign, we have to realize that the formalseparation between the House, Senate, andpresidency will not necessarily – in an era ofpolitical parties, particularly strongly unifiedparties – provide effective checks on or oversightof presidential powers during wartime. Itis not enough to indulge in familiar mythsabout “separation of powers.” We must bemore realistic about the dynamics of actualpolitical power in modern democracy, whichmeans recognizing the effect of political partiesand shared party affiliation on the way theseinstitutions operate in fact. If we seek toenhance checks and balances through institutionaldesign, we should consider empoweringthe oppositional political party in the Houseand/or Senate – particularly the Senate – toplay a more effective oversight role.Third, we should keep in mind thatCongress was a major institutional player onforeign policy issues between World War I andWorld War II. Yet its record during those longyears was pretty bleak, as the Neutrality Actsand similar measures reflect. So with any historicalperspective in mind, even a more activeand engaged Congress is not a panacea here.Courts are the other conventional institutionfor checks and balances. They do have arole, but it is a mistake to invest too much inthe courts as major institutions for addressingthese issues. Courts tend to be reactive. Theyare, at best, negative checks on certain exercisesof executive power; they act only after longdelays; they do not have very full informationabout all the consequences at stake, and areinstitutionally limited in ways we do best tokeep in mind. Whatever role courts play, in anyevent, it is going to be more at the margins thanat the center of these issues.Another possibility for strategies of institutionaldesign is to imagine more vigorouschecks and balances within the executivebranch. We could try to force that in variousways, creating entities inside the executivebranch to provide conflicting diverse views. Ofcourse, that's what was tried with the CIA, forexample, which was meant to be independentof the political power of the presidency, and thathasn’t worked all that well. But this is a brieftypology for different institutional mechanismsthat might be created or modified to managethe inevitable reality of more concentratedexecutive power during times of threat and theconcerns that concentration of power raises.I want to shift, now, to a few words aboutpolitical culture. If you look at presidencieslike Kennedy’s during the Cuban missile crisisor Roosevelt’s throughout WWII, both ofthese presidents created structures for them-


PANEL ONE: THE STATE OF THE DEBATE 17selves, like Kennedy’s Executive Committeeduring the Cuban missile crisis, that weredesigned to bring in consultation and verystrong diverse viewpoints within the decisionmakingprocess of the executive branch.Congress played virtually no role in the Cubanmissile crisis, yet that moment is pointed to asthe model of a well-handled political crisisduring times of a security threat.Franklin Roosevelt was famous for givingdifferent parts of his executive branch the sameinstructions without telling them. He would geta lot of information from different sources anddecide what to do about it. That is checks andbalances as a cultural matter within the executivebranch, because of the nature of the presidenthimself in those contexts. More generally,Arthur Schlesinger – whose book on the presidencyis still, in my view, one of the best – afterstudying the presidency for many years ultimatelyconcluded that much in this arenadepended on the personality and belief structureof individual presidents. Checks and balancesfunction, in his view, when, but only when, particularpresidents believe in the discipline thatthe need for broad consent generates, and thatchecks and balances will operate in practiceonly to the extent their value has been internalizedin the mindset of individual presidents.The question I want to pose is whether, forbetter or worse, that is the best we can do? Thatis, are there effective institutional mechanismsfor managing the inevitable flow of power tothe presidency during these times? If not, arewe left with little more to depend upon than thepolitical culture in the executive branch itself,and ultimately the nature of the particular personoccupying the office?Judge Richard Posner:My interest in presidential power grows out ofwork I have been doing in recent years onnational security intelligence, and my particularconcern about the relationship between thepresidency and Congress has to do withCongress’s intervention in the management ofthe executive branch.I am not talking about oversight. I amtalking about how Congress tries to limit executiveauthority by the laws that it passes, prescribingdetails of organization for executivebranch agencies. This issue is often discussedin law under the rubric of the unitary executive.That is, is the executive branch meant to be aunit controlled by the president, or isCongress entitled to break up this unitaryexecutive and create a kind of dismemberedexecutive?The usual way in which this issue isapproached by a lawyer or by a judge is to lookat several things, including: the text of theConstitution and the deliberations that led upto it; the actions of the early Congresses, whichincluded people who had been in theConstitutional Convention; the historical circumstancesin which the Constitution waspromulgated; and the judicial interpretationof the text since the Constitution. That is nothow I approach legal issues. My approach isactually heretical.I first ask, in dealing with any legal question,“What is the sensible result? What is theresult that a person who has not been imbuedwith legal culture would think would be theright result, the practical result, the result thatwould be best for the country, the reasonableresult?” Then I look at the conventional legalmaterials, the text and the precedents, the historyand so on, and ask whether they are consistentwith this practical, sensible result. Can theybe made consistent? Usually the answer is yes,sometimes no, sometimes one is blocked bythese conventional materials but usually not.But I will reverse the order and say just afew words about the conventional legal materials.They seem to me completely useless indealing with these issues. The Constitutiongrants broad and overlapping powers to thepresident and to Congress in the area that I amparticularly interested in, which is nationalsecurity. The president is given the traditionalmonarchical prerogative of command of thearmed forces, but his powers are not spelledout. He is also given the responsibility for executingthe laws of the United States, whichsuggests some broad power of protecting thenation. But then Congress, in Article One, isgiven very extensive powers, two of which are


18 PRESIDENTIAL POWERS: AN AMERICAN DEBATEof particular note. One is the mysterious powerto declare war. A declaration of war is notdefined or explained; it is obvious that declarationsof war are not required in a defense situation.And in particular, Congress is given thepower to make rules for the government andfor regulation of the land and naval forces,which sounds encompassing and obviouslyoverlaps the commander in chief power, so thetext is not helpful.One can look at the behavior of the earlyCongresses, full of members of theConstitutional Convention. I think it has beenestablished very convincingly by Larry Lessigand Cass Sunstein that the early Congress didn'treally have a sense of a unitary executive orof a clear line between executive and congressionalpowers. For example, there was athought that the Treasury Department wasreally sort of an arm of Congress rather thanof the president. And Congress, the earlyCongresses, established sort of independentexecutive officials in various areas.All this seems to me really uninteresting,because, after all, that was the eighteenth century,and we’re in the twenty-first century. It isa completely different world we live in. Thecountry has a hundred times the population,and is vastly different in the problems it faces,the resources it has and the enemies it confronts.At the same time, the early Congressesdid not seem to have a conception of a unitaryexecutive in the national security area, particularlywith regard to national security intelligence.Until the 1970s, Congress basicallywrote a blank check to the president. Congressgranted George Washington a sum of money,unvouchered money that didn’t have to beaccounted for, to conduct intelligence. I attachno significance to this. The fact that this wasdone 1790 or something does not bear on whatwe should be doing today. But it is true until theSeventies, and neutralizes any historical analysis.Until the Seventies, the tendency was simplyto authorize the president and fund thepresident to engage in national security intelligencewithout further ado. A major intelligenceagency such as the National SecurityAgency was established simply by executiveorder. In fact, the Defense Intelligence Agencywas simply established by the secretary ofdefense. Then later they were funded byCongress and eventually some kind of statutoryauthorization was granted.You can look at the relatively fewSupreme Court decisions in this area; theydon’t really add up to anything. There is a fascinatingopinion from 1936, United States v.Curtiss-Wright Export Corporation, whichsuggested that the government of the UnitedStates, in particular the president, has extraconstitutionalpowers. The reasoning is thatwhen the United States broke away fromEngland, before the Constitution was promulgated,the United States obtained, inherited,and succeeded to all the powers of the sovereigngovernment, and those powers were vested.The Constitution can add additional powers,tinker with them, and so on, but there issome substratum of inherent sovereign powerexercised by the president.If you want presidential power, you canrun with the Curtiss-Wright case orCunningham v. Neagle, another famous casewhich questioned whether the president could,without statutory authority, appoint a bodyguardfor a Supreme Court justice. TheSupreme Court said the president has comprehensivepower to defend the nation, whichincludes defending officials, and does not needcongressional authority. On the other hand, ofcourse, you have Morrison v. Olson, whichupheld the independent counsel law and gaveus, as a result, the Clinton impeachment. I thinkit is a good example of the lack of any sort ofreal consistency or helpfulness in what I’mcalling the conventional legal materials.Suppose we approach this then in functionalterms, and say that we have a clean slateto write on from the legal standpoint. It seemsto me that from a functional standpoint,although it’s a rough analogy, we can think ofthe president as the chief executive officer of alarge corporation called the “Executive Branchof the Federal Government,” and Congress as aboard of directors, representing the shareholders,who are the American electorate. Whenyou take that oversimplified view, you see that


PANEL ONE: THE STATE OF THE DEBATE 19you would want the executive, the CEO, tohave very broad control over the organizationaldetails and the personnel of the executivebranch. You would want to focus responsibilityon one person. You would want that unity andfocused responsibility. You would want toenable swift, decisive action and to be able todraw on the expertise of a fulltime civil service.All sorts of implications flow from this.I think, for example, that senatorial confirmationshould not be required of any officialsbelow the cabinet officers themselves. Theyshould be able to pick their own subordinates,get them into office immediately, fire them,control them, and not have to go through thesenatorial confirmation process.The big delaydiscourages people from government serviceand enables senators to put holds on people asa result. This leads to huge unfilled vacanciesin important jobs. Congress exerts increasingpower over the executive branch by makingmore and more officials subject to senatorialconfirmation.If you look at the laws that Congress haspassed in the area of national security intelligence,they have a level of detail which is completelyinappropriate, and which causes strainsand encourages presidents to claim and exerciseinherent powers. The Intelligence ReformAct of 2004, a particular interest of mine, is270 pages with the minutest detail. The directorof national intelligence is told he shallappoint four deputy directors of national intelligence– not five, not three, not how many heneeds, but four. The FBI is instructed that itshall move its special agents back and forthbetween criminal investigation and intelligence.The budget is allocated in little tinypieces to particular units and is very difficultto move. The director of national intelligence isauthorized to create centers like the NationalCounterproliferation Center, and he can takeup to 100 people from other intelligence agenciesand assign them to those centers – not 101people, just up to 100. It just so happens thatthis nice round number corresponds perfectlyto the needs of national intelligence. He isallowed to transfer officers and employeesfrom one agency to another, but only for up totwo years and only after consultation with theagency heads, and so on.Finally, there is my favorite provision inthe terrible Foreign Intelligence SurveillanceAct from 1978, a statute that I am sure you willhear a lot about today. The statute is antiquated,almost unintelligible, and excessivelydetailed, but my favorite provision is a clausethat says that although the act imposes extensiverequirements for getting a warrant in orderto conduct foreign intelligence surveillance,following a declaration of war by Congress(and they’re careful to put in “by Congress,” alittle redundancy), the president may engage inwarrantless surveillance for fifteen days. Ifyou take it literally, if the United States isattacked, the president cannot engage in electronicsurveillance until Congress is assembledand declares war. If Congress finally getsaround to declaring war, the president mustsuddenly stop surveillance fifteen days later,even if there are foreign troops in Chicago.Here is an instance in which Congress seems tobe encroaching, or should be thought to beencroaching, on the commander in chief’sresponsibilities. Whether or not you think thereis a constitutional problem, there is a problem ofsensible administration. Is it sensible forCongress enacting laws periodically to placethis kind of straightjacket over the exercise ofnational security activities? It seems to me anunsound approach to congressional responsibility.Sidney Blumenthal:I recall being in the West Wing during the transitionto the Bush White House, and as CondiRice walked in to get her first briefings, shelooked around and said, “You know, it looksexactly the same.” She had been in the BushOne White House, and it always looks exactlythe same, despite the fact that these presidencieshappen to be very different. In the OvalOffice, you can still see the cleat marks ofPresident Eisenhower, who wore his golf shoes.Yet how the presidents actually step varies.Last time I was here in Greenberg Loungewas in September 1998 when I had organized ameeting for a conference on “progressive governance,”as we called it. Seated right over


20 PRESIDENTIAL POWERS: AN AMERICAN DEBATEthere were President Clinton, Prime MinisterTony Blair of Great Britain, and PrimeMinister Romano Prodi of Italy. It was a verydifferent era. That very day happened to be theday that the independent counsel had releasedthe videotapes of President Clinton’s testimonyto all of the networks. And it was also the dayof the opening session of the GeneralAssembly of the United Nations, addressed byPresident Clinton, so all of these events coincided.As you recall, the videotapes were madebecause the independent counsel, KennethStarr, had said they must be made in case agrand juror was sick and couldn’t watch thepresident's testimony. Instead, they were madeand then released to the news media for politicalpurposes. While they were unreeling ontelevision, the president was over at the U.N.I was here at NYU with then-First LadyHillary Clinton, participating in a seminarsomewhat like this. President Clinton camedown and we met upstairs. He told us about thesession at the U.N. He had been greeted by astanding ovation of the various heads of state.A Latin American leader had grabbed him bythe suit jacket and whispered in his ear. He said,“You know it's like a coup d’état in my country.”Judge Posner raised the question of theimpeachment. It was, in the explanations ofthose who conducted it, a very strange affair.Henry Hyde, who had been chairman of theHouse Judiciary Committee, said later, in public,that it was payback for Nixon. Unlike theNixon impeachment, the committee conductedthe Clinton impeachment without establishingany standards. Tom DeLay had, as we all knowfrom Republican members of Congress,coerced them, under threat of running primaryopponents against them and threats to theircontributors, to support the impeachment. Wein the White House believed that at least 35House Republican members would have votedagainst impeachment without DeLay’s coercion.DeLay said that the president wasimpeached because he had the wrong worldview. All of this suggests that a matter of sheerpartisan power was behind it. It was certainlynot, as the Senate made clear, presidentialconduct in office, unlike with PresidentNixon. It was a very different matter.I believe that there is continuity betweenwhat happened then, which involved congressionalabuse, and the abuse today of presidentialpower. It rests in the same impulse forunaccountable power and partisan power as themodern Republican Party has developed. It ispolitical in character fundamentally. Duringmy time in government I had many dealingswith the career staff professionals, particularlyin the national security area. I have found thatthey, particularly those who, I later learned,consider themselves Republicans, haveemerged as the most penetrating, active andharshest critics of what is going on in terms ofpresidential power under Bush.These range from General Anthony Zinnito Joe Wilson, who was not a partisanDemocrat but in fact considered himself partof Bush One’s team, part of Jim Baker’s team,the last acting ambassador in Baghdad duringthe Gulf War. He prided himself on beingcalled a hero by the elder Bush and keeps aframed portrait of the first President Bush inhis private office to this day. This group alsoincludes Dick Clarke, who was the first headof counterterrorism at the National SecurityCouncil under Clinton, and Colonel LawrenceWilkerson, Chief of Staff to Colin Powell, whohas attacked the “Cheney-Rumsfeld cabal,” ashe calls it. There are more of them, includingthe generals who have now stepped forward,those who planned and conducted the war inIraq in the field operationally, who feel thatthey’d been subjected to abuse by the executivethrough the secretary of defense. The armyitself, particularly the army, has been abused.They were not hostile to George W. Bush whenhe entered office. Most of them voted for him.They were willing and eager to serve underhim. But they observed firsthand, far morethan any opponents on the outside, the radicalchanges that Bush was making within the government.As Republicans more than Democrats,they understood which of the traditions that theycherished were being traduced.In summary, Bush has, in my view, deliberatelysought to institute radical changes in thecharacter of the presidency and the American


PANEL ONE: THE STATE OF THE DEBATE 21government that would permanently alter theconstitutional system. He has used what hecalls the global war on terrorism to impose aunitary executive of absolute power, disdainfulof the Congress and brushing aside the judicialbranch when he feels it necessary. The BushWhite House concept of the executive is the fullflowering of the imperial presidency as conceivedby Richard Nixon. It has deep politicalroots. It involves personality and political history.These actions are not sudden impulses.They are not wholly the response to 9/11.As to the idea that we are living in awartime situation that requires permanentemergency powers – was not the Cold Warwartime? Would it have been declared suchhad George W. Bush been president? WasVietnam wartime? Would it have requiredthese sorts of emergency powers? Many ofthese actions have their roots, in fact, in whatRichard Nixon, in a sporadic way, tried to doduring the Vietnam War.This idea of the executive is based ondeliberate decisions, fundamentally political,intended to change the presidency and governmentfundamentally and forever. It is no accidentthat Dick Cheney and Donald Rumsfeldserved under Nixon and regard what happenedthen and the thwarting of that idea of thepresidency as something they are trying tocorrect now under this Bush presidency.Viet Dinh:We started off the conference with a very positivenote from our organizer and leader, KarenGreenberg, who gave us a wonderful metaphorof the state of leaning repose. I think it is anidealized state that those of us who work ingovernance, either in constitutional governance,political governance, organizationalgovernance, or even corporate governance,always try to achieve. We think that if anorganization is in such a state of repose itmeans that we are in harmony and that everybodygets along together.Unfortunately, I do not think that thatvision, that idealized state, is readily ascertainable,nor should it be, with respect to constitutionalgovernance, and in particular to theseparation of powers and the checks and balancesdealing with national security matters ofwhich Judge Posner has outlined the parameters.Richard Pildes has done a wonderful jobof outlining the cultural and the institutionalinteractions in that process.Taking the metaphor a little bit further, itlooks not like a tree in a state of leaning repose,but rather a sapling being caught in the whirlwindof politics. The sapling, our Constitution,stands upright when the wind blows one wayand there is a counteracting wind blowinganother way. Quite often, they all end up in acyclone that we call “divided government” or“Washington politics.” I see this as a largelypolitical process whereby the Constitutiongives each branch of government the authorityand tools necessary to counteract the otherbranches; as Professor Pildes puts it, “ambitioncounteracting ambition” in the FederalistPapers vision. We see that happening in anumber of areas throughout history. Therehas been a lot of talk regarding the imperialpresidency. The counteracting rhetoric iscongressional supremacy.We have heard a lot about the imperialpresidency, and we all know the wonderfulwork of Raoul Berger with respect to congressionalability, what he called the “grandinquest,” to check and restrict that tendency ofthe executive to act with secrecy and dispatch.We go through ebbs and flows in terms ofinterbranch authority. Professor Pildes pointsout that perhaps one of the reasons why ourConstitution has turned out to have given moreauthority to the executive in dealing with foreignrelations and national security matters,and why the people have acquiesced to suchauthority, is that Congress is a highly imperfectand certainly inadequate institution for conductingactivities with the “secrecy and dispatch”that we need in order to deal with theoutside world in diplomatic matters, or withthe outside or internal threats with respect tonational security matters.It really does take two to tango. That is,the president’s ability to push the institutionalenvelope, the institutional authority of thepresidency, requires the acquiescence of the


22 PRESIDENTIAL POWERS: AN AMERICAN DEBATEother branches of government. Generally,Congress would stand up and seek to limit thatauthority. Where it does not do so, resort isoften made to the Court. But as Justice Powellsaid in a very prescient concurring opinion in acase called Goldwater v. Carter, if Congressdoes not stand up to the president, why shouldthe Court? There is a classic reticence of thejudiciary to get involved in such interbranchdisputes, especially since it is recognized thatthe branches have the tools and authority tocounteract each other, and only in a case ofclear impasse, where there is proper jurisdiction,should the Court expend its own institutionalauthority and capital in order to resolvethese thorny interbranch political issues.With respect to the current state of thedebate, I would only make the general observationthat the president's ability, at least in thisadministration, to expand the scope of executiveprerogative and power has been largelyunanswered by the Congress. This may well beexplained by the fact that we do not have aparty divide, but I do think that the institutionalplayers within Congress are also very cognizantof their underlying authority and theirability to counteract the president. Even theDemocratic minority in the Congress has notmade very much stride, or even significantrhetorical challenges, to the president's assertionof presidential authority. In that sense, weneed to think about what exactly it is andwhose responsibility we put to bear.Do we blame a president who seeks toexpand his authority to do that which he hastaken a constitutional oath to do, to uphold anddefend the Constitution, and to defend thiscountry against threats foreign and domestic?Or do we blame those who do not wish to enterinto the political fray in order to stand up tothose institutional challenges of authority?We see this in several particular areas; forexample, the so-called “NSA intercept” or theterrorist surveillance program and the allegedinfringement of the Foreign IntelligenceSurveillance Act or Title III of the 1968Omnibus Crime Act, which seek to prohibitunauthorized wiretaps. The Congress has avery good rhetorical point; that is, no man isabove the laws that Congress passes, includingthe president because he is not King George.The president also has a very strong rhetoricalanswer, in which he essentially says, “The questionis not whether any man is above the law,but whether anybody is above the Constitution,including Congress. Congress has sought, inmy opinion, to limit that which it does not havethe authority to do, which is to limit my presidentialauthority under the Commander inChief Clause and under the Vesting Clause ofArticle Two of the Constitution, and I took a hitfor it. I stand up from January until this day andI say, ‘Yes, I authorized this personally.’ Veryfew people review this program. Only five peoplein the White House were read in. I made thedecision that this was in the national securityinterest of the country, and also that it is withinmy constitutional authority to authorize it.”So the president has effectively stood upand said, “I am making the argument to theAmerican people. I am pushing the wind oneway.” Congress certainly has ample tools topush the wind back the other way, whichinclude, of course, congressional hearings, andwhich also include the cessation of funding toany program or agency, and ultimately to thecensure and impeachment of the president. Ifall the hue and cry and all the concern is thatgreat, I think the congressional critics shouldchange the playing field and say, “Wait, thisprogram is illegal under our law, and we willput an appropriations rider in to prohibit anyfederal funds from being used in this manner.”And then we elevate the constitutional disputeto a different level, the Boland Amendmentlevel, rather than just a straightforward executiveauthority level. That is the way you escalatethe fight. There is that sense that you take yourfight to the American people if you have it.My read of this, and I am certainly nopolitical strategist, is that one of the impedimentsto a successful interbranch standing upto the president on this type of issue is that thepolls indicate that anywhere between 65 and 70percent of the American people think it’s okayto spy against an enemy in a time of war. Thepresident has successfully redefined the debateaccording to his own terms, and if Congress


PANEL ONE: THE STATE OF THE DEBATE 23wants to stand up to the president, it needs toredefine it back and take action thereafter.The second indication of this is withrespect to the treatment of enemy combatants,the Jose Padillas and Yaser Hamdis of theworld. There was great concern regarding howthe president would exercise his authority withrespect to these enemy combatants, especiallythe ones who are U.S. citizens being held onU.S. territory. For several years the presidentwas going at it alone, because neither of theother branches would speak up, until theSupreme Court issued its opinion in Hamdi v.Rumsfeld suggesting that Congress had implicitlygranted some authority to the president todo this, and suggested some procedures for thepresident to follow. At this point there was aninvitation to Congress to enter into the politicaldebate and establish some guidelines, and elevatethe discussion so that all three brancheswould be engaged in it. None of the legislativeproposals went anywhere because there was nopolitical will.The third example is, of course, what isgoing on in Guantánamo Bay. In 2004, theSupreme Court held in Rasul v. Bush that thecourts have jurisdiction to review the challengesto detention in Guantánamo Bay of the600-odd prisoners being held there. The Courtfairly openly punted the ball by saying that ifthis is a concern for Congress, it can of courserevise the Court’s habeas jurisdiction in orderto limit it, and that's what Congress did withthe Graham/Levin Amendment. There is aquestion pending before the Supreme Courtnow as to whether that withdrew jurisdictiononly in future cases, or also in pending cases,including cases like Hamdan v. Rumsfeld. Butthe surprising thing, coming out of that oralargument, was that retroactivity was not reallythe issue of the conversation, nor were thetechnicalities of the drafting of the legislation.Rather, the justices were expressing extremesurprise – “How could Congress do this? Theymean to limit our jurisdiction? I can’t believethat Congress would come in and act in thisway.” So you see, in a very live way, thebranches are engaging in this conversation.The only fault I see with it is that the peoplewho are complaining the loudest are the peoplewith the greatest, and indeed the sole, ability tocounteract the winds of institutional ambition,as we may well characterize the current adventof presidential power.My final note was touched upon by Mr.Blumenthal’s remarks, especially the variousvoices coming out of the woodwork in order toparticipate in this debate. There will always bepersonal and bureaucratic tension within theexecutive branch, just as there will always be,and there should be, interbranch tensionbetween the executive branch, and Congress,and the courts. That is a fact of life in anyorganization. When the organization is theUnited States of America’s executive branch,you expect that. There will always be debate,there will always be very strong debate, andthere will always be better bureaucratic playersand those who convince the principal better.There will always be winners and losers, andalso there will always be an incentive for boththe winners and losers to advocate their positionoutside the context of that particular controversy.Just because some people, even halfof the former corps of bureaucrats, come out infavor of half of the population’s conversation,does not necessarily make that half right. It justmeans, and we should take comfort in it, thatthere are good internal and external windsswirling around in order to ensure that our constitutionand our polity stand straight.Donna Newman:I come from a different perspective; I comefrom the trenches. I have to use theConstitution every day when I defend myclients. I do not come here as an academic. I donot have lofty ideas. I stand up before thecourt, and I quote the Fourth Amendment, andI believe in due process, as I have to in order toargue my clients’ cases.So to me, what happens with the presidenttrickles down to all of us, as I found out in 2002when I was appointed to represent Jose Padilla.After all, I was just a criminal defense attorneydoing her job. But when the executive, thepresident, took my client from me, without acourtesy call, I was angry, and I really stood up.


24 PRESIDENTIAL POWERS: AN AMERICAN DEBATEWhen Viet Dinh said “we,” he meant thatit is Congress that should be blamed if there’sa failure, a lack of action, or that we shouldblame those who failed to stand up. I reallybelieve that it is not just Congress who hasfailed to act in these important issues, but theAmerican people. I believe you all should havebeen as angry as I was because a fundamentalright was being abused and set aside by thepresident essentially asserting, “I have thepower. You want to fight me? Fight me.” Well,I did. But I couldn’t believe it. “You meanyou’re taking my client, without calling me,without asking, without telling me whereyou’re taking him, for interrogation? Andyou’re saying that’s why you’re taking him?”What happened? Maybe I failed law school anddidn’t know it, but that is not what I learned.The idea that a president has more powerin wartime is far from novel. There is no questionthat there are people on the battlefield, andour boys are getting killed. September 11thhappened. Things have to be done, and thereare important decisions to be made. I do notdiscount that there are national security issuesat stake. That would be foolish.What is novel is this administration’s contentionthat the war on terror is a license toextend military power, battlefield power, andstrategic battlefield decisions to the domesticsphere. I do not buy, as the government hasargued time and time again, that the battlefieldhas now moved here. Certainly on 9/11 it did,but not after. It could come back, and we knowthat, but it is not here today. It is not a license,then, for the Bush administration to say, “Imade the decision. I carry out the orders.” Theadministration cannot be the prosecutor, thejudge, and the jury, and that is what it claims tohave the power to do.Presidential power is limited, purposelylimited, under the Constitution. That’s somethingwhich I still think is viable, which I stillthink is something we have to adhere to, all ofus, including the executive. The framers rejectedthe assertion of a unilateral, unchecked power.They created structural and procedural provisionsto constrain the government’s power todeprive citizens of liberty. That’s an importantconcept that I will not throw away willy-nillyand say “Well, that’s old.” It is not old. It existsand it is important.The framers were wary of military powerin the domestic sphere, and they sought to subordinateit. Habeas corpus, the SuspensionClause, which prevents executive arbitrarydetention, provides that the right to suspend theClause is exclusive to the legislature. Therewere reasons behind this. It was not just thatthey picked lofty ideas. They had experiencesthat taught them that this is the way the governmentshould be run. It can still be run that way.We cannot offend the rule of law or allowit to be offended, and by “we” I mean the citizens,because that would violate our tradition.How could we now, in the world that we live in,stand up for democracy, and say that we aredemocratic, if in fact we do the things that arehappening in this country today, such as theexecutive detention of citizens caught on U.S.soil, and the NSA’s secret eavesdropping oncitizens? I do not see that the president hasstood up and told us anything. All he has reallysaid is, “I authorized it, so it’s okay.” I do notbelieve in that. I believe we have to question itand find out more. I cannot sit here and tell youwhat it is about because he has not told us.I’m concerned about so much secrecy.Obviously I agree that we cannot conduct governmentin a fishbowl, but on the other hand,there is the amount of secrecy, the amount ofdocuments that have been declared classifiedfor no reason other than someone in theadministration saying “Classify it.” Why am Iconcerned? Because this is perpetuating anatmosphere of fear.I am a child of the Sixties. I confess that Idid not go out and picket, but I appreciatedwhat everybody else was doing. I understoodit, I was proud of it. I do not see that now. Youknow why? I think that it is because of fear.There is a fear of liberty, not a fear of terrorism,or at least there is a use of the fear ofterrorism to say that somehow freedom is thecause of our vulnerability. I don’t buy it.Freedom makes us strong, not vulnerable. Itenables us to perpetuate our image. It makes usproud of who we are. It gives us strength


PANEL ONE: THE STATE OF THE DEBATE 25because it shows the world that we can do thisand it works. And it has worked. I do not likeredefining patriotism. I do not like that thosewho stand up and disagree are called unpatriotic.I think that that also is a mentality offear that we must fight against.Sandra Day O’Connor recently observedthat the framers created three separate andequal branches of government because theyknew that preserving liberty requires that nosingle branch or person can amass uncheckedpower, and she reportedly noted thatRepublican court-stripping efforts are examplesof dangerous overreaching. “It takes a lotof degeneration before a country falls intodictatorship, but we should avoid these ends byavoiding these beginnings,” she said.David Rivkin:I’ll state frankly that I’m depressed about thestate of the debate. I think the reason for mydepression is manifested in a nutshell by theevolution of a debate, a discourse, concerningthe United States surveillance program which,while important in its own right, is a nicefacsimile of the broader debate.If you reflect upon it briefly, at the timethe surveillance program was revealed in TheNew York Times, the critics, including membersof Congress and the media, had all beenfocused on the legal architecture of the program.There was a certain clear sense of consensusthat we were as interested as the administrationin listening to all aspects of al Qaedacommunications. That pretty quickly turnedout to be an illusion, which became clear in thecourse of congressional efforts to hold hearingson the FISA reform.By now, a number of critics haveadvanced arguments that it is not essential tolisten to the entire spectrum of al Qaeda communications.They have more elegant and moreliberty-protective ways of preventing future alQaeda attacks. The reason for this evolution ispretty clear to me. It is because the critics insistthat, in all instances, NSA surveillance must beblessed by the courts. That, of course, can bedone with a fairly narrow spectrum of overallal Qaeda communications, namely the oneswith regard to which you can demonstrate to aFISA judge that there is probable cause tobelieve that al Qaeda-based operatives are talkingto their U.S. agents. To me, the willingnessof the critics so soon after the savagery ofSeptember 11th to abandon any efforts to surveilcomprehensively the entire spectrum of alQaeda communications, and suggest otherthings such as better computers and betterinterpreters, is nothing short of stunning.Unfortunately, that tendency is replicatedacross the entire range of legal and policyissues related to the war on terror. The criticswildly, and I emphasize the word wildly, misstateand misperceive the facts. The commonperception is that the Bush administration ispracticing with gusto the imperial presidencyparadigm, stretching executive power to its limitsand beyond, and threatening liberty in theprocess. To put it mildly, that is bunk. I thinkthe Bush administration’s post-September 11threcord, whatever you think of it, if you actuallyobjectively compare it to the record of all predecessorwartime administrations – Lincoln,Wilson, or Roosevelt – it just does not compare.Incidentally, for those of you who may havederived an impression that abuses of power areunique to Republicans, I wonder how manyserious American historians think that Nixon’sgrasp of presidency was that fundamentallydifferent from that of Lyndon Johnson. But,leaving all of that aside, I don’t think that youcan make a serious argument that Bush has donemore than Roosevelt, Lincoln, and Wilson.The second thing that depresses me isthat, instead of featuring a number of specificconfrontations between the president and theCongress, which is indeed endemic in our history,there is a broader unifying anti-executivetheme that provides the philosophical underpinningfor various congressional actions. Thattheme is a very robust hostility towardsunchecked exercise of discretionary power bythe executive, which is viewed as unconstitutional,violative of checks and balances andthreatening civil liberties. I also detect a morefundamental aversion to the political handlingof key policy issues, coupled with concomitantbelief that the judiciary is the best venue for


26 PRESIDENTIAL POWERS: AN AMERICAN DEBATEresolving all difficult policy issues, particularlyfor balancing individual liberty and preservingpublic security.I think the framers would chuckle if somebodyquestioned the premise that certain coreaspects of governmental power, especiallywhen managing national security, can necessarilyand only be done at the discretion of theexecutive. They would have told you that theway to prevent abuses of that power, which wascertainly very much on the forefront of theirminds, is fundamentally through politicalaccountability. It is not by having Congress orthe judiciary partake of those exercises ofexecutive discretion.To me, the notion that you can drive nationalsecurity decision-making through sort ofantecedent rule creation is silly. Even if you hadthe best, the most Solomonically inclinedCongress, the notion that it could create frameworkstatutes that sufficiently can take accountof the complexity of the external environmentwe’re facing in the twenty-first century, or anycentury, is absurd.Now, the third point I would make toexplain my depression is that the debate aboutthe constitutional prerogatives of the presidentis not new. Ironically enough, preciselybecause it's not new and because the republichas managed to survive for 200-plus years,there is a view that, “Well, there’s nothingnew under the sun. It happened before. It willcontinue and everything would be fine.”I do not personally share this optimismbecause I think that the current assault is qualitativelydifferent. The original Congressesgave the president pretty much a blank check,things changed a bit after that, but really, congressionalcriticism and micromanagement didnot become a norm until the Seventies, whenwe had a wave of statutory activities largelystemming from Vietnam, Watergate, and thecollapse of the Nixon presidency. Congresstried to do a little bit more in the 1980s withthe Boland Amendment. Things receded in the1990s, but fundamentally Congress, duringmost periods, tried to get itself a seat at thetable institutionally. They were interested inacting politically. Congress, whatever youthink about the Boland Amendment, was willingto stick its neck out and say, “We do notthink the Reagan Administration should besupporting the Contras, and if bad thingshappen, we will pay. Because that policy wasblocked by us, we will pay a political pricefor it.” That is fundamentally not what ishappening now.What is happening now is that Congress –and I do agree with some of the critics’ observations– is not interested in acting in anaccountable, transparent fashion. I agree withProfessor Dinh. If Congress feels that the NSAwarrantless surveillance program is unconstitutionaland illegal, it should, I would urge it to,cut the spending and pay a political price. If itturns out, God forbid, that we have another9/11, that thousands of Americans die, and thatwe have another 9/11 Commission, we will notbe debating what would have happened ifMoussaoui’s computer were searched, we’ll bedebating whether or not a given conversationwould have given a clue to it. That move byCongress would be commendable. I think itwould be foolish, but commendable. But theywould not do it. They would not do it whatsoeverbecause they love their jobs so damn much.Instead, what it is going to do, and is doingwith enormous gusto, is asking the judiciary tomicromanage the executive foreign policyfunctions, because then if something goeswrong, they could say, “We were for it beforewe were against it.” If there is one branch whichis even less suited to managing effective foreignpolicy, because I agree with Judge Posner,looking at the functionality is important, it isthe judiciary.Now, why the pessimism? By the way, Ido not read the Hamdi decisions or even anticipatethe Hamdan decisions to be bad in asense of going fundamentally against theexecutive. In fact, if you look at the entirerange of cases, both preceding and followingCurtiss-Wright, the judiciary has beenremarkably restrained, and properly so.My fear is the judiciary, after decades ofaggrandizing its power domestically, and afterbeing quite influenced by the sentiments of thechattering classes, may well be on the brink, if


PANEL TWO: PRESIDENTIAL POWERS: PAST AND PRESENT 27this debate – if this anti-executive tendency, thephilosophical hostility, the aversion to allthings political, particularly aversion to thediscretionary exercise of executive power –continues, then the judiciary may well break itstendencies. If that were to happen, it would bean unmitigated disaster, both in terms of theConstitution and in terms of underminingnational security. I wish I felt it was just limitedto this administration. That would make mefeel better. I think we’re really teetering at theprecipice of fundamentally warping the constitutionalbalance. I hope I’m wrong, but that isa real possibility.PANEL TWO: PRESIDENTIAL POWERS: PAST AND PRESENTModerator: Professor Stephen HolmesPanelists: Mickey Edwards, Nat Hentoff, Jeffrey Toobin, Professor Sean WilentzNat Hentoff:I’m going to focus on the further expansion ofthe president's powers in the increasing investigations– and some may be criminal investigations– of the press for, in the president’s terms,“aiding the enemy,” and publishing leaks ofclassified information. The White House isnow insistent that the press is getting in theway of the unitary executive, having beenadvised by a covey of lawyers in the Justiceand Defense Departments that since 9/11, ascommander in chief, the president has thepower to bypass Congress and bypass thecourts when it is necessary for national security.CIA Director Porter Goss testified beforethe Senate Intelligence Committee in February.Porter Goss was persuaded by the president andDick Cheney to become the director of theCIA. Vice President Cheney, shortly after 9/11,mentioned the necessity to cultivate the “darkarts,” and he wanted to make sure, with all theleaks going on, that those arts would becomeeven darker. In testifying, he said, “We will witnessa grand jury investigation with reporterspresent being asked to reveal who is leakinginformation about the CIA’s classified material.”The charge against Mary O. McCarthy isthat she was a source of Dana Priest’sWashington Post report (from November 2,2005) on the CIA secret prisons in EasternEurope. She has denied not only the charge butalso that she even had access to the informationthat Dana Priest was printing. Dana Priest (I amso pleased that she won the Pulitzer in 2006)has been writing about the CIA’s “black sites”since late 2002. Pat Roberts, chairman of theSenate Intelligence Committee, who continuallyrefuses to authorize an investigation into theCIA’s violations of American and internationallaws in its prisons (wholly hidden, obviouslydeliberately, from our rule of law), is nowapplauding the firing of Mary McCarthy.Dana Priest is already subject to a JusticeDepartment investigation, as are New YorkTimes reporters James Risen and EricLichtblau for their disclosure of the president’ssecret approval of the National SecurityAgency’s warrantless surveillance of Americans.Those reporters also received Pulitzers in2006, despite the president’s characterizationof their reporting as “shameful.” The administration’sposition has been clearly stated by FBIspokesman William Carter: “Under the law, noprivate person, including journalists, maypossess classified documents that were illegallyprovided to them. These documents remain theproperty of the government.”The law cited by Mr. Carter is this administration’sexpansion of the Espionage Act of1917, which is now before the courts.Woodrow Wilson was very disappointed inwhat finally became of the Espionage Act. Hewas insistent that there be a provision thatwould punish the press which was, after a veryspirited debate, extracted from the EspionageAct of 1917. It is now expanded by this administration.There is a case currently in the courtsthat could greatly diminish the First


28 PRESIDENTIAL POWERS: AN AMERICAN DEBATEAmendment rights of the press and the rightsof Americans to receive information aboutsuch lawless practices as the CIA secret interrogationcenters and the president’s violationof the Foreign Intelligence Surveillance Act.This espionage case, which has not beenreported sufficiently in the media, UnitedStates of America v. Franklin, Rosen, andWeissman, is the first in which the federalgovernment is charging violations of theEspionage Act by American citizens who arenot government officials for being involved inwhat until now has been regarded as FirstAmendment-protected activities, engaged inby hundreds of journalists, not every day, butquite often.Steven Rosen and Keith Weissman, formerofficials of the American Israel PublicAffairs Committee, who have since been fired,are accused of receiving classified informationfrom a Defense Department analyst, LawrenceFranklin, about American strategy in theMiddle East and in counterterrorism. Rosenand Weissman are charged with providinginformation to an Israeli diplomat and a journalist.Lawrence Franklin has pleaded guiltyand has been sentenced to prison.Defense attorneys for Rosen andWeissman declared, “Never until now has alobbyist, reporter or any other non-governmentemployee been charged for receiving oralinformation the government alleges to benational defense material as part of thataccused person’s normal First Amendmentprotectedactivities.”In an amicus brief to the U.S. DistrictCourt for the Eastern District of Virginia, theReporters Committee for the Freedom of thePress (with which I'm affiliated) says, “thesecharges potentially eviscerate the primaryfunction of journalism: to gather and publicizeinformation of public concern, particularlywhere the most valuable information to thepublic is information that the governmentwants to conceal so that the public cannot participatein and serve as a check on the government.”After all, that is one of the reasonswhy the First Amendment was added to theConstitution in 1791.T.S. Ellis III, the judge now hearing thisespionage case, said in March (although he’sbacktracking a little now) that “persons whocome into unauthorized possession of classifiedinformation must abide by the law. Thatapplies to academics, lawyers, journalists, professors,whatever” – “whatever” being a ratherbroad and vague term. Recently Judge Ellis isbeginning to realize, it seems, that this is amore difficult case than he first thought. AsSteven Aftergood, head of the Project onGovernment Secrecy at the Federation ofAmerican Scientists, says, “To make a crimeof this kind of conversation that Rosen andWeissman had with Franklin over lunchwould not be surprising in the People’sRepublic of China, but it’s utterly foreign” –the question is, is it? – “it is utterly foreign tothe American political system.” This censorshipof the press was cut out of the EspionageAct of 1917. If the Supreme Court agreeswith the Bush administration, and JudgeEllis’s position in March, we will, as Mr.Aftergood says, have to build many more jailsand disarm the First Amendment.What is happening in the secret prisons(not only in Eastern Europe where two of themhave been closed as a result of The WashingtonPost, and one has been moved to Morocco) isoutside any concept of American law so far aswe know. We do not know very much, but thereis an important Amnesty International report,“Below the Radar,” that was released on April6th, 2005. It contains one of the first testimoniesfrom people, three citizens of Yemen, who werereleased from these secret prisons, and whowere tortured in ways that have been otherwisedocumented by Jane Mayer in The New Yorker,by Dana Priest in The Washington Post, and byreports by the Center on Law and Security intheir invaluable book The Torture Papers.This is all a matter of record by now.What really struck was a question asked onNightline by a former FBI agent, a senioragent on the FBI’s bin Laden squad in NewYork, who headed the investigations of KhalidSheik Mohammed, a senior al Qaeda official.The question still has not been answered. Ihave heard other ex-CIA people and ex-FBI


PANEL TWO: PRESIDENTIAL POWERS: PAST AND PRESENT 29people ask this, some of them on 60 Minutes.The question was, “What are we going to dowith these people in the secret CIA prisonswhen we’ve finished exploiting them? Arethey going to disappear? Are they stateless?What are we going to explain to people whenthey start asking questions about where theyare?” I wish there were more people askingthese questions, “Are they dead? Are theyalive? What oversight does Congress have?”I would ask that of Senator Roberts.Earlier, Jack Cloonan, the FBI agent, said,“We’re trying to change hearts and minds incertain parts of the world. That’s arguably one ofthe reasons for going into Iraq. I find this franklyto be counterproductive, let alone criminal.”I wish the press, threatened as it is nowmay be, would get into this much more deeply.I never thought I would celebrate so ardentlythe Pulitzer awards as I did this year for EricLichtblau and James Risen and the invaluableDana Priest.Jeffrey Toobin:I’m going to focus a little more narrowly. I’mgoing to talk a little about what I think of as theintellectual and historical origins of the PatriotAct, and what that tells us about the currentenvironment. As Judge Posner said earlier, upuntil the 1970s the Supreme Court had neverreally focused on the issue of what kind ofoversight there should be on government wiretappingby the executive branch. It simply hadnot come up very much. And then in theSeventies, because of the disclosures about theFBI, and the CIA, and because of the ChurchCommittee, the issue started to get on thenational agenda, and you had a very mysteriouscase called U.S. v. United States DistrictCourt, known as the Keith case, which startedto address the issue. Congress started toaddress the subject of the sort of controls thereshould be over wiretapping.Congress, I think reasonably, decided todraw a distinction between two kinds of wiretaps.There are law enforcement wiretaps,which are known as “Title III” wiretaps. Whenyou want to wiretap the Ravenite Social Cluband see what John Gotti is up to you use TitleIII. When I was an assistant U.S. attorney, Iused Title III. They were the law enforcementwiretaps, and those you had to get approvalfrom the Department of Justice, and then youhad to go to a federal district court judge, andit was very much like a search warrant. Thatwas one route.But then, for national security, they said,“Well, we don't want to have that kind ofprocess, where there might be disclosure, butwe do want some oversight.” They set up amysterious body called the FISA court (thelaw was called the Foreign IntelligenceSurveillance Act), and if the governmentwanted to wiretap the Soviet embassy, as wecertainly hope and expect that they did, theyhad to go to the FISA court. This was somethingclose to a rubber stamp. There werethousands of applications made, and virtuallynone of them were turned down, but it was atleast some sort of institutional check on thegovernment from wiretapping for politicalpurposes or untoward purposes.That system worked fairly well for the tenyears until the Berlin Wall fell, and then thisdistinction between foreign intelligence surveillanceand domestic surveillance started tobreak down. The most dramatic illustration ofthis distinction, where we no longer had bigblack telephones in Soviet bloc embassies,instead we had cell phones in the hands ofmysterious non-state actors, was in August of2001, when some intelligent, industrious, honorableFBI agents uncovered a mysteriouscharacter called Zacarias Moussaoui inMinnesota. They said, “We want to get a searchwarrant on this guy, we want to find out whathe’s got on his hard drive.” The FBI supervisors,in their bureaucratic cowardice, didnot know which slot this would fall in, andbasically the request fell through the cracks.In a very peculiar trial that has been goingon in the Eastern District of Virginia, one of themost chilling pieces of testimony was by theFBI agent who found Moussaoui in Minnesota,who said this was criminal negligence on thepart of the FBI. As we weigh the consequencesand causes of what happened in this country on9/11, I think the FBI has gotten away with a lot


30 PRESIDENTIAL POWERS: AN AMERICAN DEBATEless criticism than it deserves. The CIA has gottena great deal of criticism, but if you look athow the FBI neglected this problem, whichwas, after all, inside the United States, there isa lot to answer for by Louis Freeh and thepeople who ran that agency in the nineties.In any case, they did not get the searchwarrant in time. Whether the 9/11 attackscould have been stopped or not is very muchan open question, but certainly there shouldhave been more investigating done right away.Moussaoui was arrested in August, aboutthree weeks before 9/11.But after 9/11, Congress started todecide, “What are we going to do about this?”They looked at the distinction betweennational security wiretaps and domestic wiretaps,and said that this distinction was increasinglymeaningless. While they preserved thetwo tracks, they made the possibility of information-sharingbetween the two of themeasier. This passed the Senate 99 to one.Frankly, I think the 99 were right and RussFeingold was wrong. This aspect of the PatriotAct makes a lot of sense. I don’t think the distinctionbetween national security and domesticinvestigations is meaningful anymore.I think that those of us who followed thisdebate, and those of us who care about thisissue and thought that the Patriot Act was areasonable compromise, were especially disappointedto learn about the warrantless wiretappingby the NSA, disclosed by James Risenand Eric Lichtblau in The New York Times. Thiswas an issue that Congress considered rightafter 9/11, and Congress was in a position tolook at and say, “How can we address this issueof wiretapping, and how can we make lawenforcement decisions and national securitydecisions that respond to what people need,and to what the administration needs, but thatprotect a modicum of privacy?” And theyfrankly cut a deal that was very favorable tolaw enforcement.About these national security wiretaps thatyou can get from the FISA court – in the firstplace it’s very easy to get them, but in theunlikely event that you don’t have time to getone, or, in the incredibly unlikely event thatthey’re turned down, you can go after you startwiretapping. You can just start the wiretappingand get an ex post facto warrant, so this is notexactly a rigorous check on law enforcement,but it is some kind of check. Yet even that checkwas too much for the administration when itcame to the warrantless system that we stillknow relatively little about. We do know that itexists, and we do know that President Bush hassaid, “I endorsed it and I am proud of it.”I think Viet Dinh is right that it is theresponsibility of each branch of governmentto follow the Constitution, that theConstitution is an independent obligation ofeach branch of government. That’s why Ithink it is not enough to say, “Well, if theother branches don’t stop us, we’re going tocontinue to do this.” The Patriot Act was areasonable accommodation of these competingpressures, but what the Bush administrationdid with it was disappointing, and we’llsee what happens now.Sean Wilentz:The attacks of September 11th, 2001, and allthat has followed, seem to have opened up newdebates about presidential powers in foreignaffairs, especially with respect to war-making.In fact, these debates are very old, virtualperennials in our history. We are just looking atthem in a dramatically new light following theal Qaeda atrocities.A few comments I have heard sinceSeptember 11 seem to avow that the UnitedStates is an essentially malevolent force in theworld, and that its government had no legitimateright to wage war even in national selfdefense.These wild, extremist claims getpicked up by extremists on the other side whouse them to smear as treasonous any dissent,no matter how slight, from the current administration’spolicies.Amid such passionate polarization, it is allthe more important to step back and recall thatdebates over the president’s powers in foreignpolicy, and especially with respect to war-making,date back to the earliest days of the republic.There weren’t nuclear weapons back then,but there was the United States Constitution,


PANEL TWO: PRESIDENTIAL POWERS: PAST AND PRESENT 31and the United States Constitution had bettercount for a lot. The most basic question in thesedebates is pretty simple: “Where do the executive’spowers end and those of Congress begin?”As early as the administration of GeorgeWashington, when the Senate approved thecontroversial Jay Treaty, there was a smallcrisis when the House of Representativesdemanded executive papers and theWashington administration refused to providethem. The House came within a single vote ofrefusing the appropriations to implement theJay Treaty. There have been numerous subsequentstruggles, from the tussles over AbrahamLincoln’s suspension of habeas corpus in 1861and 1862 to those over implementing the WarPowers Act.To understand our current situation inhistorical context, we need to draw some distinctionsthat are very often blurred – especiallythe distinction between making war andresponding to terrorism. (It is a distinction thatgets lost in the unfortunate new phrase, “waron terrorism.”) We also need to distinguishbetween the president's powers under theConstitution and those under internationallaw. Finally, we need to consider what constitutesthe wise and prudential use of acknowledgedexecutive power under the Constitution.First, with regard to terrorism: Ever sincethe nation’s founding, presidents have respondedswiftly, resolutely, and unilaterally to terroristattacks. Thomas Jefferson, in one of hisvery first acts as president in 1801, took preemptiveaction in an effort to halt the Barbarypirates’ attacks on American shipping. Morethan a century and a half later, in 1986, theReagan administration lobbed missiles atLibya ten days after U.S. intelligence learnedof Libyan diplomatic comments regarding thebombing of a West Berlin nightclub in whichtwo people were killed (including an Americansoldier), and 230 were injured.In 1993, when the White House receivedconfirmation of a foiled Iraqi-sponsored plotto assassinate former President Bush inKuwait, President Clinton ordered warships tothe Persian Gulf. The warships proceeded todestroy the Iraqi Intelligence Service’s officesin Baghdad. Five years later, following the alQaeda bombings in Dar es Salaam andNairobi, President Clinton attacked Osama binLaden’s forces and fired on both bin Laden’sAfghan compound and a Sudanese chemicalfactory. (We remember those as the “wag-thedog”attacks because they came in the middleof the impeachment crisis.)There’s long precedent, then, forAmerican presidents to take direct executiveaction to combat terrorism. Given that precedent,I doubt that the moves to get congressionalauthorization were even necessary beforestriking back against al Qaeda after September11. It is true that Article I, Section 8, of theConstitution gives Congress the war-makingpower. But some would say, and I think it’s areasonable argument, that under Article II,Section 1, which gives executive power to thepresident, the president has the authority todeal with terrorism unilaterally.Although Congress could at any time havehanded the president blanket powers to takemilitary action in response to September 11th,it is by no means clear that congressional actionwas necessary with respect to attacking alQaeda. War-making is a congressional function,but combating terrorism is an executivefunction, as foreign policy generally falls underthe executive’s purview. Madison acknowledgedas much, Washington acknowledged asmuch, and Jefferson acknowledged as much.By the same token, though, partly becauseCongress has the power of the purse, a wiseand prudent president will always consult thoroughlywith Congress and take a bipartisanapproach to foreign policy, even in thoseinstances where the executive is empowered toact unilaterally. A wise and prudent presidentcertainly will not try to politicize his actions –including those which, like fighting terrorism,belong to the president. On these counts, thecurrent administration has displayed neitherwisdom nor prudence.As for international law, there is now adebate over whether it limits the president’spowers in any way. The overwhelming weightof authority holds that the White House isindeed subject to international law. And under


32 PRESIDENTIAL POWERS: AN AMERICAN DEBATEinternational law, the president cannot takeunilateral action to reprimand or punish terrorists.But the president does retain the power torespond to armed attacks in the name ofnational self-defense – and even to engagein anticipatory self-defense. Traditionally,though, presidents who have done so have alsosought to build international coalitions throughdiplomatic actions – and since 1945, theysought authorization from the U.N. SecurityCouncil. Even in 1998, when President Clintontook swift action after the Dar es Salaam andNairobi bombings, he also took great care tojustify his actions.As for the killing of individual terrorists,and particularly sending people out to “get”Osama bin Laden, international conventionsbar assassination or murder, but they do notpreclude killing in self-defense.In all of these respects, I believe, the Bushadministration conducted itself correctly, in thestrictest legal sense, in its responses to theattacks of September 11th, including its ownattacks in Afghanistan. But whether the administrationacted wisely or prudently by pursuingthese efforts in a highly partisan way is anothermatter altogether. And almost everything theadministration has done since then is also problematic.Even holding aside matters of internationallaw – above all whether the United Statesshould obey the Geneva Conventions or summarilyand unilaterally reject them as “quaint”– the administration's conduct has raised theold basic question once again: What are thepresident’s powers to make war?Those who take a minimalist approachwould prohibit any executive action specificallybarred by the Constitution of the UnitedStates. We’ve heard a great deal lately fromminimalism’s advocates, some of whom haveprotested all of the Bush administration’s militaryactions. But there is another position – theone Abraham Lincoln took in the midst of theCivil War. Lincoln quite openly (and notsecretly) violated the Constitution – not simplyin suspending habeas corpus but in signing theEmancipation Proclamation, which was anunconstitutional wartime measure.Here is what Lincoln said in his owndefense – call it in a prospective refutation ofthe minimalist position – in a letter to aKentucky newspaper editor in 1864 about theEmancipation Proclamation :I did understand, however, that my oathto preserve the Constitution to the best ofmy ability imposed upon me the duty ofpreserving, by every indispensablemeans, that government, that nation, ofwhich that Constitution was the organiclaw. Was it possible to lose the nation andyet preserve the Constitution? ByGeneral law, life and limb must be protected;yet often a limb must be amputatedto save a life; but a life is never wiselygiven to save a limb. I feel that measures,otherwise unconstitutional, mightbecome lawful, by becoming indispensableto the preservation of theConstitution, through the preservation ofthe nation. Right or wrong, I assumedthis ground, and now avow it.There are many who think that havingtaken that position, Abraham Lincoln was aperfect despot – and so he is remembered inmany parts of the country. (I cannot tell youhow many e-mails I get from people – not allof them, by any means, from the South – whoare amazed that I think highly of AbrahamLincoln the despot.)Far beyond Lincoln’s position, there isalso a maximalist position – and it is this positionthat I fear the current administration isadvocating. According to the maximalist view,a wartime president – including a presidentwho pursues a war on terror, a war against atactic rather than a state or any other particularenemy – is free to do whatever he pleases inorder to wage that war. Moreover, if the presidentdeems it proper, he can do whatever hepleases in perfect secret.The maximalist position is without precedentin American history. Whether or not theposition has merit, we at least ought to recognizethat its adoption by the Bush administrationmarks a fundamental departure fromprecedent. No wartime president has everclaimed, as a matter of constitutional right, the


PANEL TWO: PRESIDENTIAL POWERS: PAST AND PRESENT 33grandiose powers claimed by President Bush.The administration had compounded itsmaximalist wartime claims with its attempts todictate which laws (or which portions of laws)it will execute and which it will not – and howit will interpret any given law, regardless of theexpressed will of Congress. I’m thinking inparticular of the recent run of signing statementsthat the president issued. As promulgatedby President Bush, these statements amountto line-item vetoes – and thus represent aseizure, by the executive, of power not grantedit, implicitly or explicitly, by the Constitution.Basically, President Bush has said “I’m goingto enforce the law however I see fit,” even if hispreferences flagrantly violate the will andintention of the Congress. This usurpationextends far beyond debates over the president’swar-making authority. The signing statementsindicate that the current administration lacks aproper respect – and perhaps any respect at all– for the constitutional separation of powersdesigned by the framers.To say that this seizure is justified by thedemands of conducting a war on terrorismactually makes the administration’s actions allthe more dangerous. When Abraham Lincolnviolated the Constitution, he knew the violationwould last only as long as the Confederacywas in rebellion. We are now in a situationwhere the president has claimed that, in orderto fight a tactic he believes threatens nationalsecurity, he can abrogate the Constitution foras long as he pleases. Conceivably, these abrogationscould last for a year, or four years – orforever, depending on who is president.Left uncontested, this state of affairs is, Ibelieve, patently unconstitutional – and itinvites further unconstitutional expansion ofexecutive prerogatives and power. But no matterhow you view the situation, the currentadministration’s claims, and the imprecisegrounds invoked to justify its claims, call for aprofound and urgent debate about where weare headed as a nation.Mickey Edwards:The circumstances today are different fromprevious conflicts of this kind over presidentialpower. Presidential power ebbs and flows, buthas generally flowed in a fairly circumscribedway. Presidents have a short period after anelection, a honeymoon period, in which theyreceive deference. They receive deference inother specific circumstances, sometimes inwartime. But generally, over a period of time,the circumstances change, the honeymoonends, and the traditional constraints on presidentialpower are re-imposed. The disequilibriumis short-lived, and we go back to the kind ofsystem of checks and balances, separated powers,and constrained powers that are mandatedunder the Constitution.Presidential power can be enhanced in alot of ways, such as by the courts declaring thatthe Congress cannot exercise a legislative vetoor upholding the right of the executive forexecutive privilege. But those are enhancementsonly of traditional presidential power,like adding shutters to the upstairs windows.They are not fundamental, and their ramificationsare minor.That is not what is happening today. Howdoes a president become “the decider?” Howdoes the president become the decider, whosedecision making authority extends even to theability to ignore clear legislative declarationsas to what is legal and what is not? That coversa wide range of things in the Constitution.The Constitution does not, in fact, giveclear and sole authority over foreign policy tothe president of the United States. That is whythe Boland Amendment during the Reaganyears, which I did not vote for, was clearlywithin the authority of Congress to check theforeign policy activities of the president of theUnited States. Much of the current unease overpresidential declarations of almost unlimitedauthority is focused on the overreaching ofPresident Bush. I too think the president hasoverreached significantly beyond his legitimatepowers.But presidents overreach. I am fromOklahoma, part of the old Louisiana Territory.If presidents did not overreach, I would not behere, because I would not be an American citizen.But if it is not human nature (and it maybe human nature) to try to expand whatever


34 PRESIDENTIAL POWERS: AN AMERICAN DEBATEauthority you have to do what you want, havingspent a lifetime in politics, I know that it is atleast political nature to try to expand yourauthority. What makes this president’s overreachingmore dangerous and potentially agreater, and very real, threat to our very systemof government is congressional acquiescence.That is what is different. I think that thenotion of congressional acquiescence understateswhat has led to this particular expansionof an imperial presidency. To a large extent,our system of checks and balances has becomean Americanized version of a parliamentarysystem in which the two parties have supersededthe three branches. Many members ofCongress no longer see themselves as constitutionallyobligated to function as a completelyseparate and completely equal branch of government.They are charged with serving as thevoice of the American people. They arecharged with determining what the laws of thecountry are. Because they have the power ofthe purse, they are charged with setting thenational priorities, and they are charged withmaintaining a check on the presidency. Noneof those functions are being carried out as theywere constitutionally designed.I have very deliberately used the phrase“they are charged with.” This is not a matter ofcongressional power or congressional authority.It is a matter of congressional obligation.Just as the president may in the minds of manybe guilty of malfeasance, the Congress may beguilty of nonfeasance.Members of the president’s party increasinglyact as members of the White House staff,and when they do act contrary to the president’swishes they use neither subpoena nor oversightnor the power of the purse to enforce theirdecisions. This is beyond the problem that hasexisted previously. When Franklin Roosevelt (aDemocrat) was the president of the UnitedStates and Harry Truman (a Democrat) sat inthe United States Senate, Harry Trumaninvestigated Roosevelt’s War Department.Historically, members of Congress have takentheir obligations seriously.Judge Posner spoke about the micromanagementof government by the Congress. It istrue that Congress does micromanage, but theexecutive branch is not the same as the government.It is one of the three branches of government,and the Congress is equally one. Membersof Congress seem to have forgotten this. This isa Congress in which the majority leader of theSenate was hand-picked by the president of theUnited States, which should have been reasonenough for senators to vote against selecting himas their leader. It is a Congress in which, both inthe House and Senate, the leadership of themajority party has seen it as its primary functionto enact the president’s agenda.In conclusion, let me just make twopoints. First, this is a more dangerous period ofpresidential expansion precisely because of theacquiescence of Congress and the failure tohave another branch of government serving asa check on this power. We could use Marburyv. Madison, or any other example you want touse, that once power is surrendered, once abranch of government cedes power, it is almostimpossible to retrieve that power. That is one ofthe things that makes this period so dangerous,the confluence of an overreaching presidentwith a Congress unwilling to say, “No, this is afunction of the legislative branch.” The answerto the problem before us is not merely tochastise the president for what he is doing, butto chastise the Congress because it is at theheart of the expansion of presidential powerthat troubles so many of us today.EXCERPTS FROM THE QUESTIONAND ANSWER SESSION:Stephen Holmes:Secrecy is obviously necessary in this kind ofconflict that we’re engaged in, but is there evertoo much secrecy? Does secrecy have anypathologies? Can it ever lead to self-defeatingdecision-making? Can’t exposure of things thatthe administration wants to keep secret everhelp national security? In conditions like this,where we have a government that naturally hasmade mistakes, the problem is new. It isinevitable that mistakes will be made, and toimprove the performance, it would seemincumbent upon us to allow those policies to be


PANEL TWO: PRESIDENTIAL POWERS: PAST AND PRESENT 35criticized. So what role is there here for criticism?In regard to Jeff Toobin’s remarks, I thinkthere’s a similar point to be made. There aregood reasons for avoiding public trials of thosewho are believed to be engaged in terroristacts. But the event in the Moussaoui trial towhich Jeff referred, the exposure of misbehavior,of incompetent national security actions bythe FBI, came out during trial. They had beenhidden. This is something that had been lookedinto carefully, but we learned new things aboutexecutive branch incompetence because of apublic trial. There obviously were good reasonswhy the real perpetrators of 9/11, includingKhalid Sheik Mohammed above all, were notbrought to trial. But it is also possible that ifhe had been brought to public trial, executivebranch incompetence would have beenexposed in a way that would help us improveour performance in the future. It seems to methat trials, as a tool of democracy, are a veryimportant thing.To Sean Wilentz (and this is a little bitaddressed to Mickey Edwards too), Congress’srole in approving a war is, of course, anambiguous thing, because if Congress is fedfalse or misleading information, like in theTonkin Gulf case, and on that basis approves ofa president’s drive to war, they will be embarrassedlater when the disaster is apparent to all.They will be embarrassed to admit that theywere fooled, to admit that they were dupes. Socongressional checking may actually play intothe hand of the president, perversely. We’veseen that in the last election.Finally, to Mickey Edwards, it is clear thatif there’s anyone responsible for the existenceof a one-party government, it is the Americanelectorate. And here again, the American electoratemay have voted for a Congress that is ofthe same party, supporting the president, on thebasis of false information fed to them by anexecutive branch. That’s another reason whythe role of the press is so crucial in a democracy.Nat Hentoff:I’d like to tie a few things together here. Therewas a member of Congress who certainly motivatedme as a reporter to expose secrecy. Hisname was Frank Church, of Idaho, and he wasinstrumental in exposing the excesses (to saythe least) of J. Edgar Hoover’s COINTELPRO.Also, in 1975, he was the first member ofCongress to look into the National SecurityAgency and was horrified. Consider what hashappened since then in their technologicalpowers. He said, “This can never happenagain.” But there are very few Frank Churchesin the Congress now.Jeffrey Toobin:I just want to ask a question, and I really hopemy press pass is not taken away when I askthis. I really do mean this as a question, not asan answer. I seek out leaks. I do not covermuch that is classified, because it is not what Iwrite about much, but I cover controversialstories where I get information from people,and sometimes it is not in accordance with therules that they tell me. But, if we’re going tohave classified information, what should bethe rule about whether you can give it to areporter? Do you just sort of trust it to the goodsense of each person who possesses classifiedinformation?I thought Dana Priest’s story about thesecret prison was fabulous, and I’m glad shewrote it, but I’m also somewhat uncomfortablethat I don’t know what the rules are regardingwhat is appropriate for a person in possessionof classified information to give to a reporter.Nat Hentoff:Well, we don’t know what the rules are forclassifying information. It now has been foundout that the CIA has been taking material thathas been declassified out of the archives andreclassifying it. We do not know why that isbeing done. So you’re right, there is no clearrule for a reporter. So what you do is whatDana Priest did, and as a number of us keeptrying to do – it’s like Potter Stewart talkingabout obscenity – you know it if you see it.Jeffrey Toobin:I’m not worried about the reporter. If you’re thereporter, you just publish it, you don’t worryabout it. I’m talking about the sources. What is


36 PRESIDENTIAL POWERS: AN AMERICAN DEBATEthe rule for the sources who know what is classifiedand what is not? Are we just to say,“Please give it to us, it’s okay to give us classifiedinformation because we’re reporters?”Nat Hentoff:Most importantly, a reporter’s job is to tell thepublic what is going on, and especially now,because all of these panels are indicating thatour lack of knowledge about what is going onmakes this the most dangerous period ofAmerican history. What we do know indicateshow much more we have to know to remaina republic.Prof. Sean Wilentz:On the question of the Congress and the parties,it is not the White House and the Congressbeing in the control of the same party that isthe issue. It is this party particularly, thisRepublican Party. As Mickey noted, there havebeen lots of cases of people of the same partyinvestigating a president of their party – that’snot going to happen with this Congressbecause of this Republican Party.Prof. Stephen Holmes:It is still the American public who elected thisparty.Prof. Sean Wilentz:Oh, I don’t disagree, but understand that thereis a difference.Joshua Dratel (from the audience):With respect to transparency and the virtuesof public revelation (and this goes beyond justwhat is beneficial to the republic as a whole,but is also beneficial to this administration),the most comprehensive and revelatory andconvincing material about Osama bin Ladenand his responsibility for terrorism prior to9/11, which I think was essential to a quickresponse with respect to assigning responsibilityto al Qaeda, was a public trial – theembassy bombings trial. If you look at the9/11 report, virtually the entirety of the historyof al Qaeda is sourced from that trial itself,so that was a tremendous advantage thatobviously the government no longer wishes toacknowledge.Prof. Richard Pildes (from the audience):I disagree with at least three of the panelists inwhat I heard. The appeal to these romanticindividual figures, the Frank Churches, theLowell Weickers, fails to come to terms withthe nature of political parties today. I don’tthink it’s about the Republican Party by itself.We’ve gone through a major change in the waypolitical parties work these days. They’re moreunified, they’re more polarized. I think there’sno reason to believe that circumstance won’tcontinue for the foreseeable future. To appealto individual great heroes, as opposed to recognizingthe problem and then trying to thinkabout solutions (such as the minority partyperhaps having investigative powers), seemsto me to miss the nature of the problems thatwe face in terms of the structures of politicalinstitutions today.Jeffrey Toobin:I’d like to respond to a general sentiment thatI’ve heard that we’re at a moment when civilliberties face their greatest threat in howevermany years. I don’t think that’s true. I thinkthere are some bad things going on. I thinksome of the Bush administration’s policies aremisguided, but do you remember J. EdgarHoover? He was in charge of vast parts of thegovernment, and he was a monster. The FBI isnothing like that now, to say nothing of tens ofthousands of American citizens internedduring World War II. George Bush does notcompare. I think a sense of perspective isuseful in terms of what’s going on now.What you could do about it is vote forDemocrats. End of story. This would not begoing on if there was a Democratic Senate, tosay nothing of a Democratic president.Nat Hentoff:I have to say that as my Freedom ofInformation Act file consists mostly of what J.Edgar Hoover’s people said about me, almostall of it wrong. He was a monster, but he was avery visible monster. A lot of people fought


PANEL THREE: CHECKS AND BALANCES 37against him in and out of the press. What’s happeningnow is that the head of the FBI is gettinge-mails from FBI agents in Guantánamosaying, “What they are doing to prisoners isappalling. We don’t want to be part of that.”Robert Mueller, director of the FBI, hasnever acted on those e-mails. He’s not veryvisible. That’s the problem now. It is morethan the monstrous J. Edgar Hoover. It’s a government,an executive part of the government,which believes it is the law.Sean Wilentz:I never thought I’d be quoting Richard Nixonapprovingly, but Richard Nixon once said thatthere’s little about America that can’t bechanged with one good election. Maybe that’san exaggeration, and it’s not just electingDemocrats. There are honorable Republicans,and it means talking to them at town meetings.PANEL THREE: CHECKS AND BALANCES *Moderator: Professor David GolovePanelists: Barton Gellman, Marty Lederman, Jeffrey Smith, Suzanne SpauldingDavid Golove:The topic of this session is the system ofchecks and balances: what it is, how it is supposedto operate, how it has operated in thepast, and whether or not the system as it hasoperated in the past is being undermined by thepolicies of the Bush administration. To framethe discussion very briefly, we can distinguishbetween three types of checks and balancesthat impact upon executive branch policy-making:checks that come from the legislativebranch in the form of oversight; checks thatemerge from within the executive branch itselfin the form of internal institutional processesthat influence policymaking judgments aboutfacts and other matters; and checks that originatein the public sphere, particularly from the press.Barton Gellman:President Bush gave a good peg for this panelon April 18th, 2006. He said “I hear the voices.I read the front page. I know the speculation.But I’m the decider and I decide what’s best.”That is not exactly l’état, c’est moi, but it is apretty frank statement of his governing philosophy:there are voices, but most do not countall that much in the decision-making process.News accounts purport to offer facts, but arefilled mainly with speculation, and that is oftenframed as wild speculation or wildly off-themark.Some people, including Garry Wills andRon Suskind, have observed that there is somethingmissing from that picture, which isacknowledgment of a common body of factsthat inform and limit political choice.Suskind was working on a story for theOctober 17th, 2004 New York Times Magazinewhen a high-ranking White House official hedid not name told him dismissively, he says,that he as a reporter was a member of the reality-basedcommunity, whereas, and this is thequote from the official, “We’re an empire now,and when we act, we create our own reality.And when you’re studying that reality – judiciouslyas you will – we’ll act again, creatingother new realities which you can study too.”In some ways, what I have found is thatthe Bush administration has treated newsmedia as something like another special interest,akin to trial lawyers or union bosses, andequally to be kept at arm’s length. That is newin my experience. Every president I have coveredsince the first Bush has grown weary ofthe press, but what is new here is a tendency tode-legitimate news media as a vehicle of truth,or even an attempt at truth, and the casting ofreporters as partisans in a highly polarizeddebate. Now what we think we’re trying to do,* Co-sponsored by The John Brademas Center for the Study of Congress at NYU’s Robert F. Wagner GraduateSchool of Public Service. For an introduction to the Brademas Center, please see page 63.


38 PRESIDENTIAL POWERS: AN AMERICAN DEBATEat The Washington Post at least, is what myeditors call “accountability reporting,” revealingwhat powerful people do with their powerand exploring the consequences.In that sense only, we belong in a discussionof checks and balances, but it is not ourjob to check or balance anything that a presidentor a member of Congress or a judge wantsto do. We’re not a loyal opposition. I do notbelieve that the idea of a fourth estate gives usany special status in the governing process.What does have special status is truth andfacts. They are the fuel for the public debatethat is the ultimate check and balance of a selfgoverningsociety.Right after President Bush said that hedecides what’s best, he said, “What’s best is forDon Rumsfeld to remain as Secretary ofDefense.” Why did he have to say that? Becausethere were a lot of political actors, from editorialiststo elected officials and influential citizens,who were calling, “off with Rumsfeld’shead.” Each had their own reasons, but all ofthem depended on facts or asserted facts theBush administration had worked assiduously toconceal from the public debate – dissent ofmilitary commanders from the secretary’s warplans, the abuse of prisoners, the growingsuccess of the Iraqi insurgency, and so on.In the modern press era, secrets have beenkept or broken by a process of competition.Governments tried to keep them, journaliststried to find them out, and intermediaries witha very wide variety of motives performed thearbitrage. No one, and this is crucial, effectivelyexerted coercive authority at the boundary, andthat is changing.At the same time, there was a process ofcollaboration that most people do not knowabout. I work often on national security stories,and have for some years now. What used tohappen is that if we found out something thatseemed sensitive, or that we knew to be classified,we would go to the appropriate governmentauthority and discuss it. We wanted tomake sure that they knew we knew it, and wewanted to know whether they thought it wasaccurate or had context to provide. There wasan unspoken invitation to let us know if theythought something was especially sensitive ordifficult or damaging, and to let us know why.Those conversations took place quite frankly inmany cases.My most frequent interlocutor at the CIAused to say that his job was to shed light and toshed darkness when he spoke to me. There werelots of times when we agreed, based on governmentrepresentations, to remove somethingfrom a story. That depends on the governmentacknowledging that there are some things thatwe learn that, although they prefer we not publishthem, are not going to bring the heavensdown or end the security of the nation. Thatprocess has nearly stopped in the Bushadministration, although it operated early inthe first term.Here’s what’s changing. Number one, whenwe come to them with stories like that, they simplysay, “You should kill the whole story. We’renot going to discuss what’s more or less sensitive,or why.” And two, they immediately takethe questions as the opportunity to try to findout how we know what we know, so they aremuch more frequently and much more aggressivelylaunching what they call “leak probes.”There are all kinds of instances in the publicdiscussion now. There is Mary McCarthy’sfiring. There is the routine requirement thatexecutive branch officials sign waivers so thatif they’ve been promised confidentiality by areporter, they waive it compulsorily. There ismore aggressive use of polygraphs; there is, ingeneral, a more politicized environment in thecareer bureaucracy. My colleague has reportedthat when the CIA was choosing a newBaghdad station chief, White House officialsasked Langley what political party this caseofficer belonged to. That is not something thatwould have happened before to my knowledge.The CIA, the FBI, and the Justice Departmentare brushing aside longstanding self-restrainton investigating journalistic sources. Mysources have been interviewed by the FBI onoccasion and asked about contacts with me.Under the Patriot Act, the government has amuch lower standard of so-called relevancethat enables them to use national security lettersand get transactional records. I have reason


PANEL THREE: CHECKS AND BALANCES 39to think that they have been using those insome of the leak probes.You have reporters being asked in manycases (civil or criminal), under threat of jail, toreveal their confidential sources. The AIPACcase is very disturbing. It alleges that two lobbyistscommitted an act of espionage byreceiving classified information orally. There’salso a conspiracy count in which the overt actto mark the conspiracy is the provision of a faxnumber to a source. The government has statedexplicitly in its legal pleadings that this has notyet been, but for good reason could be, appliedto reporters doing their work.What I want to make clear is that the statusquo is changing. The methods we use to doour jobs are now at risk, and it is becomingmuch more difficult to use them. That is whatwe’re struggling with and grappling with in mypart of this equation.Marty Lederman:Are we misguided in focusing so much onchecks and balances, on process questions?Would we be better off if those checks and balanceswere working the way many of us insistthey ought to, or would the substantive resultsbe more or less the same as they are now?Should we be devoting more of our energiesand our debates to the substance of thequestions at hand – What sorts of coerciveinterrogations ought to be legal? What sorts ofsurveillance ought the NSA to be permitted toengage in? – rather than the meta-questions ofwhether the president has the power to do thesethings; whether his power ought to be checkedby the legislative branch, and if so, how; andwhether creative statutory construction isappropriate when emergency needs are presentin the war on terror?I haven’t focused much on the substantivequestions, in part because I do not have muchknowledge about them. I’ve been fairly consumedby what I call the process questions.I’ve been challenged by folks from all differentperspectives on that, and I want to play devil’sadvocate here. I continue to believe that theprocess questions, the checks and balances, areextremely important, but I think we need tothink much harder about the meta-questions,and about the challenges that are being put to us.My work in the Office of Legal Counselhad almost nothing to do with national security,international law, interrogation, or surveillance.I knew nothing about FISA, and I wasvery grateful for that. I worked on free speechand religion clause issues, on federalism questionsand the like. I was actually in the officewhen the first wave of opinions was beingwritten justifying torture, other coercive formsof interrogation, and NSA surveillance outsidethe confines of FISA. I did not know that thosethings were going on, and I do not think thatmost people in the office did. Some did, butnot many, and I do not think that many peoplein the administration knew that these opinionswere being written.I am not going to go into great detailabout the problems in the torture memorandum(there are blogs devoted to it), but I and severalof my colleagues from the Clinton administrationissued a public document setting outwhat we thought were the best processes, thebest procedures, by which the Office of LegalCounsel might fulfill its role. The Office ofLegal Council has a very unusual role in theexecutive branch. Its role is to advise the president,so that the president may comply withhis constitutional obligation to faithfully executethe laws. One meta-question that we donot have time to get to here is, “faithful towhat?” The president has a constitutional obligationto faithfully execute the laws. Whatdoes that mean if he thinks the laws are pressingup hard against what he thinks are veryimportant policy objectives, particularly wherethe nation’s security might be at stake?These are interestingly difficult questions,but we thought, at the very least, OLC’s rolecould be sustained only if certain processbasedstandards were met. I’ll mention thethree most important, and these are the internalchecks that David was speaking of.One is the internal process itself of comingup with the conclusion within the executivebranch, consulting with other lawyers and policymakerswho know something about the law– the State Department, the Criminal Division,


40 PRESIDENTIAL POWERS: AN AMERICAN DEBATEthe INS, all of whom had a vast experiencewith the torture statute, none of whom wereapparently consulted. The OLC opinion did notreflect any of the wisdom or considered historyof these issues within the executive branch.Secondly, there is consultation, or briefing,which is basically the same way a courtcomes up with good legal analysis – by invitingcontentious briefs on both sides. Thereshould be candor in the opinion itself. Itshould be balanced; it should deal with all theopposing arguments and not reflect any inappropriateconfidence in the conclusion if theconclusion is contested. It should be a fair,balanced and complete set of legal analyses,because the purpose is to advise the presidenton what the law truly is, and the opinionshould give him a full view of that question.Finally, there should be transparency. Ifthe OLC issues a memorandum saying that aproposed course of conduct is lawful, thereshould be a very strong presumption that thatopinion will be made public soon, and that thelegal justification for the administration’s policieswill be subject to transparency, and thereforeto public critique. Transparency is the bestdisinfectant. The OLC opinion itself will bemuch more rigorous and much more careful ifthose preparing it know that it will be subjectto public critique. That is demonstrated by thecontrast between the 2002 torture memorandum,which I do not think was expected to bemade public, and the 2004 memorandumwhich replaced it, which is more careful,balanced, and serious in my view.This leads to the interbranch or separation-of-powersquestions, the constitutionalchecks and balances rather than the internalones. If the current law, faithfully construed,prevents what the president considers to beimportant methods of engaging and detectingthe enemy, the proper response, under this traditionalview, is not to pretend as thoughCongress has authorized what Congress hasplainly prohibited, and it is not to assert acommander in chief power to supersedeenacted statutes. It is certainly not to do bothof those things in secret, all the while tryingto convince the public and the Congress thatit is business as usual, that we are abiding byFISA, that we never torture, and that we abideby our international obligations. If an administrationis going to take a fairly idiosyncratic,emergency view of the Constitution andthe statutes, it ought to do so publicly in a wayin which accountability is possible, which isnot the way this administration has worked.So far, I’ve focused my attention, as havemany of my colleagues, on these processquestions; checks and balances, internalchecks, and the like. We’re subject to severalrecent critiques, many of which are related,that I want to mention.The first critique is one that Judge Posnerhas made. I wrote that it was outrageous thatthe administration engaged in wiretapping prohibitedby FISA. I had no opinion whatsoeveron whether this program was a good or a badidea, I do not know anything about NSA capabilitiesor about what would be a good statute.Judge Posner had written quite eloquently thatforms of data-mining should be permitted,with certain checks, and this would be the bestpolicy. I said, “okay, that is all fine, but let’s putthat aside. If you think that is right, the propercourse is to go to Congress and ask for a statuteto allow you those authorities, not to pretend asthough you already have them.”Judge Posner’s response, as he wrote inThe New Republic in January, 2006, is that thisconcept is putting “the cart before the horse.”The determination as to whether a course ofaction is legal should come after determiningwhether it is advisable and whether it is a goodpolicy. So the first response is that theseprocess questions, these checks and balancesquestions, are arid questions, somewhatabstract, and ultimately I think (although I donot want to overstate his critique) somewhatirresponsible; that these are serious questionsabout what interrogation should be permitted,what forms of surveillance should be allowable,and serious lawyers and policymakers shouldfirst decide for themselves what the optimalpolicy should be, and then the law is capaciousenough to get to that end in 99 cases out of 100.Good lawyers should then work to make thecase in support of those policy judgments.


PANEL THREE: CHECKS AND BALANCES 41I’ve heard a form of this critique comingfrom my colleagues on the left, some of whomI work with, former critical legal scholar typeswho also think the law is fairly indeterminateand can certainly be either twisted or carefullymassaged to reach many of these different policyconclusions. They come to me and say,“Why all of this obsession with process andchecks and balances? If this were the Clintonadministration and the policies that were beingreached by the OLC were those that youapproved of, you might have some trepidationand lose a little bit of sleep over the craftworkof OLC, and about not telling Congress, and ofasserting presidential power, but not much.You’ve seen plenty of bad OLC opinions writtenand you haven’t spent months bloggingabout them when they lead to decisions thatyou do not generally disapprove of.” I can citechapter and verse from the Clinton administrationthat they cite to me all the time of caseswhere it asserted commander in chief authorityor executive branch prerogatives to ignoreduly enacted statutes.These critics on the left say, moreover,that the process-based critique is irresponsiblein a certain way, because it pretends as though,if good lawyers simply sit down and do theprocess work the way they ought to, there willbe a right legal answer. That is obscuring thefact that these are very contentious choices thathave to be made, and that the law is beingmanipulated to reach those choices.The next series of critiques holds essentiallythat even if we had all the process wewanted, and the checks and balances wereworking the way they ought to, we wouldn’t bevery happy with the results. My friend andanother fine OLC lawyer, Jack Goldsmith, haspushed me on this repeatedly, suggesting that ifOLC had done its job the way I think it oughtto have done it, and had Congress been consultedand asked for legislation, it is very possiblethat we would be substantively in thesame place we are now. OLC would write opinionslike the Levin Memorandum, like theWhite Paper justifying NSA surveillance. Theywould go to Congress and Congress, I amafraid, in a time of crisis, would basically givethem just about everything they wanted. Theyhave done so. They gave them the Patriot Act.Right now, after it was revealed that the NSA isviolating the law left, right and sideways, withouttelling Congress for four years, Congress’sresponse is that they’re all standing up trying totop one another to give the president the statutoryauthority that he has been asserting allalong. We’re not getting a congressionalresponse that suggests that checks and balanceswould be worth very much substantively.This big fight might lead to a state of theworld that is very similar to the one we findourselves in now.I want to mention, very briefly, three otherobjections, one of which I do not think is veryimportant, but two of which I do. The first isJudge Posner’s other point, which is that whenCongress does enact statutes, it does a miserablejob of doing so, and we shouldn’t trust thelegislative process because of the micromanagementof statutes like FISA and the torturestatute. I want to suggest, but do not have timeto argue here, that those are actually two wonderfulexamples of statutes that show Congressworking at its best, and that we should honorthose examples.The other two objections are fairly serious.One is secrecy, and you hear this increasinglyfrom the Bush administration. They ask, “whatif an amendment to the law would reveal capabilitiesor sources and methods that we cannotreveal, either because we want them to remainsecret,” or, and you hear this argument increasingly,“because we actually want the enemy tobe of the view that our laws are very restrictive?We want them to have false security in the factthat we do not torture, and we do not wiretap,and so the best of all possible worlds is a publiclaw that says you cannot do all these thingsand a private or secret law that says you can.”Secrecy questions are very important.The final objection is that all of ourchecks and balances arguments, our yellingand screaming about it, have had very littlepolitical salience, either in Congress or withthe public. So the question is, are our energiesbetter spent doing something else? Like I saidat the outset, I am still a supporter of argu-


42 PRESIDENTIAL POWERS: AN AMERICAN DEBATEments in favor of checks and balances and theseparation of powers, but I want to open thediscussion so that we can defend those posturesmore persuasively.Suzanne Spaulding:Like David Rivkin said this morning, I, too,think we are on the edge of a constitutional crisisof significant magnitude. The difference, Isuspect, is that when David peers down into theabyss, his vision of that nightmare is differentthan mine. My nightmare is of courts and aCongress that have become irrelevant, and ofan American public that has been coddled intochildhood by an administration that sees itsrole as being one of simply taking care to keepthem in the dark.I think that this administration has adoptedwhat I call “the Jack Nicholson” viewtoward government. Do you remember JackNicholson in that movie A Few Good Men,when he tells Tom Cruise, “You can’t handlethe truth?” I think there is a certain degree towhich this administration feels that theAmerican public can’t handle the truth. I thinkthat a lot of their behavior reflects, sadly, afundamental lack of faith in our system ofgovernment; a fundamental lack of faith indemocracy and in checks and balances; and alack of understanding of the ways in whichthose are not a vulnerability, or a luxury for atime of peace.That system of government was put inplace by framers who had just survived whatreally was an existential threat. In a time ofgrave uncertainty, at the outset of a very speculativeventure that they had no way of knowingwould succeed, with crisis looming, theyput together this form of government as thebest hope for this new nation to stay strongand to survive, and that is the system ofchecks and balances.Part of the argument has been framed interms of, “Well, don’t you think that in a timeof crisis or a time of war we need to have apowerful president?” I think part of the problemhas been equating the avaricious accumulationof power with strength. What we need inthis time of crisis is a strong and determinednation, not necessarily a powerful president.Mickey Edwards said earlier that the governmentdoes not equal the president. When I wason the Hill, we had witnesses who would testifyabout the notion that the Constitution isnot a suicide pact, and who would ask, “Don’tyou think the Constitution gives the presidentall the power he needs to protect the nation?”I always thought the Constitution gives thegovernment and the people all the power neededto protect this nation, and I think that is afundamental difference.It is not a fuzzy-headed, idealistic notion ofcivil liberties making us strong. I’m concernedabout the way we discuss the balance betweennational security and civil liberties as if theywere mutually exclusive objectives on oppositesides of the scale, as though if you took awayfrom one, you’d automatically add to the otherand vice versa, when in fact they really aremutually reinforcing. This is very real. Whatmakes this nation strong is the relationshipbetween the government and the governed.When things begin to drive a wedge into thatrelationship, that is what weakens our nation.So, Marty, in picking up on your questions,I do not necessarily concede that we’dend up in the same place substantively if theprocess were different, but even if you were toconcede that, the process, I think, is criticallyimportant for the sustainability of that endresult. And so, ironically, I think the processmight be more important if you liked thepolicies; that, in fact, you should have someconcern if a president that you like is comingup with policies you like, but is doing it in aslegally questionable a way as this administrationis, because it undermines the credibilityand sustainability of those policies.I think we see that in the Patriot Act. Thereare lots of pieces to the Patriot Act, so it is hardto talk about it as if it were one provision of law,but if you agree with it, then you should be veryconcerned about the way in which it was enacted,which was done in a very rushed manner, inan environment that did indeed stifle robustpublic discussion and debate, and that ultimatelyled to an ill-informed public. Only after theenactment of that act have we had the kind of


PANEL THREE: CHECKS AND BALANCES 43public discussion debate we should have hadleading up to it, and I think the failure to havethat informed debate earlier has led to the lackof public support for provisions that I think thepublic would otherwise have supported.I think that in the NSA eavesdroppinginstance there are very specific ways in whichthe administration went about pushing theenvelope, and adopting that program withoutgoing through the appropriate process, andthus, I think, weakened national security.First of all, the program was leaked to thepress, and the administration claimed that theleak presented a significant threat to nationalsecurity. Why was it leaked to the press?Because dedicated professionals at theNational Security Agency had serious qualmsabout the way in which that program had comeabout. They questioned the legality of the program.If the program had been put on astronger legal footing, if they had gone toCongress first to get approval, I wonderwhether those NSA professionals would havehad the same qualms, and whether we wouldhave had this leaked to the press.The program was shut down for severalweeks at one point when they tried to seek certainapprovals for it and those approvals weren’tforthcoming. They stopped the program for awhile, while they worked on strengtheningsome of the oversight. Again, if this program isso vital to national security, the fact that it hadto be shut down for several weeks was a detrimentto national security that would not havehappened had they been more careful andcautious in the process leading up to it.There’s pretty clear evidence that the programhas diverted vital investigative resources.There were reports early on that the FBI wasgiven leads from this program and ran them allto ground, and turned up nothing. Think aboutthis program. We’re listening to a suspected alQaeda terrorist talking to someone in theUnited States. If that pans out, if in fact that isa conversation between a suspected terroristand somebody who is helping him in the UnitedStates, there should be from that lots of domestic-to-domesticconnections made and conversationsthat you want to listen in on from thedomestic end. Yet we are told that this programhas led to maybe ten FISA warrants – andthey’ve claimed that if they're going to dodomestic-domestic, they do go in front of FISAand get a FISA warrant – ten a year of the thousandsof intercepts that have occurred underthis program. So it has diverted resources withapparently few leads panning out.The intelligence community I think hasbeen demoralized, and one of the things I findmost offensive about the process used here isthat in pushing the boundaries, in pushing theenvelope in order to expand presidential power,they chose to do so in this context, where theindividuals who are implementing the programface personal criminal liability. That is whatFISA provides for. It is not just the person whomakes the decision. It is every single personwho is involved in implementing that intercept.If a court does not agree with the sort of unusualor creative legal reasoning that has beenused to support this program, if a court decidesthat that is wrong and they disagree with it, andthat this is in fact illegal, all of those individualsare facing criminal liability. I think that isa real problem.It also creates then, I think, questions inthe minds of the individuals in the intelligencecommunity when they are asked to implementfuture programs – questions as to whether theyare on a solid legal footing or not. We saw thisin the torture debate where the individuals didwhat they were told or asked to do, or authorizedto do, with the understanding that therewas a legal basis for it. Then all of a sudden itcame to light, and DOJ revoked that legalopinion. These are individuals who are outthere doing what they were told was legal. Andsuddenly DOJ changes its mind? I think that isa result of a faulty process that puts individualsin jeopardy.It complicates our efforts to get futuresupport from Congress. Members of Congresshave indicated that they will be less likely togive the president a broad authorization for theuse of military force if they know that this ishow he is going to interpret it, and that comesfrom a Republican Congress.So I think there are some very real national


44 PRESIDENTIAL POWERS: AN AMERICAN DEBATEsecurity implications to the process. I think thebottom line, the ironic result of this overreachingattempt to expand presidential power, isthat we have one of the weakest presidents inour nation’s history today, with approval ratingsof 32 percent, with no political capital onthe Hill, and with members of his own partywho are in many districts running away fromhim, rather than with him. I think it has indeedshown, in a very dramatic way, the wisdom ofthe framers. Having an informed educatedAmerican public that has reached consensusbehind a strategy for combating this threat ofterrorism that can be sustained over the longterm is what is going to lead to our ultimatelyprevailing over this threat.Jeffrey Smith:I am delighted, Suzanne, that you’ve said whatyou said, particularly your last point. It is sortof the political counterpart to Justice Jackson’sfamous comment about the president’s powersbeing at their lowest ebb when Congress isactive. The president’s powers are also at theirlowest ebb when his political standing is at itslowest ebb, and that is what we face at themoment. And that is, in no small measure inmy view, attributable to the manner in whichhe has treated the Congress and the law.Whenever I think about presidential powers,I am reminded of how the founding fatherswere really street-smart politicians. We tend tostudy them as great intellects and great theorists,but they knew that politics was all aboutpower, a struggle for power, and the genius ofthe system they created with its checks andbalances reflected their own experiences. Theytruly designed a stunningly successful system.Having been embroiled in a lot of politicalcombat over the years, I’d like to talk for a fewminutes about how politics influences checksand balances. Most presidents think that thereare many checks and few balances, and theyfeel very constrained by a lot of laws and manyof the checks. For a long time at the StateDepartment I had a New Yorker cartoon tapedon my door in which a king is looking down ona couple of his advisors, asking very plaintively,“Do we have enough might to make thisright?” This president has answered that questionvery aggressively by saying, “Yes, we do.And maybe I am not so sure about what’s rightanyway, except I know what I want to achieve,and I am going to be very assertive and tryto do it.”The question is, has he used these powerswisely? Has he overstepped his powers? Willhis actions lead to a reaction by Congress andthe courts that will ultimately undermine thevery powers that he is trying to assert? It is toosoon to tell of course, but the pattern overhistory is that Congress will reassert itself –witness the Congress refusing to approve theLeague of Nations after President Wilson; thetrimming back of presidential powers duringthe Cold War, largely by adding legislativeconstraints on presidential actions; and thenof course Watergate, Vietnam, and theChurch and Pike Committees’ investigationof intelligence. From the perspective of a personwho has been in the trenches for 30-someyears in Washington, it is hard to overstatethe importance of the president’s popularityin terms of trying to achieve what he hasbeen trying to achieve.I was working for Senator Nunn whenReagan was president and the Democrats hadthe Senate. We used to see lots of polls inwhich the president’s particular policies onNicaragua, on dealing with the Soviets, on allmanner of things, would be 65 to 35 against aparticular policy, and yet President Reagan’spopularity was always north of 65 percent.When he wanted to do something, he could,simply because he had such tremendous power.Even the Democrats in the Senate who did notlike him felt constrained because the politicalforces in which they acted made it very difficultto deal with the president.Suzanne very nicely made the point aboutthe linkage between following a law and presidentialpowers. Let me talk about some particularchecks and balances that I think illustratethis a little bit, and I’ll begin with the legislativebranch. In the late 1980s the administrationdecided that it had a new way of reinterpretingthe ABM Treaty, contrary to what the Senatehad been told when it ratified the treaty. The


PANEL THREE: CHECKS AND BALANCES 45Senate rose up in anger about that and said,“You told us it was going to be interpreted in aparticular way. You’ve now changed yourmind.” And so there was a fairly unpleasantepisode for many weeks. But what happenedwas that the next time a treaty came up for ratificationthe Senate said, “Everything that theadministration tells us about the manner inwhich the treaty will be interpreted is lockedin.” Now is that good or bad? I’m not sure, butit certainly limits future presidential flexibility.David asked me to talk for a second aboutinternal executive branch checks and balances.There are many, most of which fall into the categoryof guerilla warfare among bureaucrats.That is a skill that is refined and applied by alot of very skilled people. The best expressionof that I’ve ever heard is a statement attributedto President Truman, who said about PresidentEisenhower when he came in, “Poor Ike. He’sgoing to come to this job, give an order, andthink something will happen.” I think thatpoint remains true to this day.I said a moment ago that it is hard to overstatehow important the president’s politicalstanding is to his ability to get something done.I believe it is also hard to overstate the role ofthe press in all of this. The press in many wayssets the agenda. The editors decide what goeson the front pages, which is the first thing thatpeople read in the morning. Stories in thepress, how they’re treated, how they’re written,have an enormous impact on what is importantto us as a nation, what we choose to put on theagenda. Leaks tend to be the oil that lubricatesthis system.As angry as I have been about leaks whenI’ve been in government, I also appreciate theirvalue, because they can serve as an enormouslyvaluable method to communicate back andforth – sometimes within the executive branch,and with different agencies leaking their ownpoints of view. Congress leaks because it istrying to maneuver things. And as we’ve seenvery recently, the president, apparently, directeda leak of classified information because hewanted to get out his version of events, contraryto what my former colleagues at the CIAthought. So leaks, however unpleasant, remainan enormously important piece of the way wedo business. I understand that there may besome effort in the Congress to beef up thecriminal laws to make it easier to prosecuteleaks and to criminalize conduct that had notpreviously been thought to be criminal.This is a very important time in ournation to think hard about these issues. Weface terrible threats. The president has chosento act on his own. In my view, I agree withSuzanne, I think he has undermined his effectiveness.He may well ultimately underminepresidential powers at a time when a strongpresident is needed.I am hopeful that somehow or another wecan find a way to enact legislation to give tothe president some of these authorities, so thatwhen he acts in the future he will act under theauthority of law, and with the full support ofthe American people. I think the same thingcan be said of international law. The presidentis strongest when he acts with allies, when heacts consistent with international law. You canbully for a little while, but it does not work inthe long run, and the price that is paid for thatis quite significant.EXCERPTS FROM THE QUESTIONAND ANSWER SESSION:David Golove:I just wanted to begin by asking a question, andpushing on the notion of internal executivebranch checks a bit more. I had a conversationover lunch with Bart Gellman about an incidentwhich he wrote about in The WashingtonPost, and which struck me at the time as apossible example of an important internalexecutive branch check.I’m wondering whether this is the rightway of thinking about this incident and thisprocedure, and whether or not there has been adecrease in some respects in the effectivenessof these kinds of internal checks during thepast few years. Everyone will remember thegreat controversy over the aluminum tubes thatthe administration alleged were to be used forcentrifuges in Iraq. Bart reported on a sharpdisagreement internally between CIA analysts


46 PRESIDENTIAL POWERS: AN AMERICAN DEBATEand DOE scientists about the nature of thesetubes and whether they really were for centrifugesor not.Apparently there was some kind of internalprocedure, a kind of arbitration, whichcould be invoked, and perhaps was invoked,when there was a dispute of this kind betweendifferent agencies. The idea was to have a kindof internal executive branch trial to get at thetruth of the matter. But the decision was made,I gather by George Tenet, not to allow theprocedure to go forward in the case of thealuminum tubes. Perhaps that decision wasconsequential in the mistakes that were madeon this crucial issue.I’m wondering whether or not this incidentprovides a good example of a potential internalexecutive branch check that could play animportant role in improving decision-makingwithin the executive branch, whether or notthere’s a way to strengthen internal checks andbalances of this kind, or, alternatively, whetherthese kinds of procedures and checks are ineffectivebecause they tend to be jettisoned wheneverthere’s a strong political agenda at play?Barton Gellman:In a nutshell, in August, 2002, Vice PresidentCheney said that Iraq was reconstituting itsnuclear weapons program. In September, fourcabinet-level officials, and eventually inOctober the president, said that the heart of theevidence for this was that Iraq was trying tobuy specialized aluminum tubes, which theysaid it wanted to use for centrifuges to enrichuranium. This was a matter already of significantdispute inside the intelligence community.At the procedural level, several thingshad happened. The CIA had intercepted someof these tubes and believed initially that theywere going to be used for centrifuges. Theexpertise in the U.S. government, the physicistswho know how to enrich uranium, theEnergy Department (which had its own intelligencebranch), and the Energy Departmentcentrifuge physicists unanimously had saidthese tubes were not suitable for enrichment.Being scientists they refused to say it wasimpossible that one could find a way to makethese tubes into centrifuges, but as HoustonWood (probably the dean of centrifuge physicists)finally agreed to tell me on the record,“If there’s a way to do it, I’d like to know how.”He said, “I won’t say it is impossible, I’d justlike to know how.”Now there are two levels of arbitrationhere. One is that when you prepare a nationalintelligence estimate, it is supposed to be theconsensus of the intelligence community, so 15agencies sat around the table, and they voted.The Energy Department said “They’re not forcentrifuges.” The State Department’s Bureau ofIntelligence and Research said “We agree withEnergy,” and nearly all the rest were either neutralor said, “Well, we think they’re for centrifuges.”Now you had, essentially, agenciesthat had no expertise on the subject with equalvotes and they outvoted the experts.There is, on the other hand, a board or apanel of experts. They are eminent scientistsand technologists who have high clearances,and who are supposed to resolve analytic disputesabout the technical meaning of something– are these or are these not centrifuge-capabletubes? This board was not convened during thecourse of this debate.Now again, let’s just review the sequence.The vice president says they’re for centrifugesand Iraq’s reconstituting them. The president,the secretaries of State and Defense, andnational security advisors then say the samething. In October, they ask the intelligencecommunity, “Is Iraq reconstituting its nuclearprograms?” It is a very difficult thing, at thatstage, to tell the president no.Jeffrey Smith:I do not know the facts beyond what Bart hassaid. It is not clear to me, by the way, that itwould have made an ultimate difference in thepresident’s decision to go to war even if theintelligence community had come to a consensusthat these tubes could not be used to enrichuranium. I think that was made on othergrounds. But I do know that the aluminumtubes were handed around among members ofCongress, and cited as examples of why we hadto go to war. I’ve had a couple of members of


PANEL THREE: CHECKS AND BALANCES 47Congress tell me that physically handling thosealuminum tubes was one of the principal factorsthat caused them to vote in favor of the war.I’ve also had other members of Congresstell me that they will never again vote to useforce without seeing the raw intelligence,because they are so distrustful of the intelligencecommunity now after this last vote.Suzanne Spaulding:As I listened to your question about internalexecutive branch checks and oversight mechanisms,I was thinking, one of those mechanismsis the inspector general’s office. I was thinkingabout Mary McCarthy, who is the CIA officialwho was fired in April, 2006, and who wasworking in the inspector general’s office.She has worked for over 30 years in theintelligence community in a variety of positions,including at the White House for theNational Security Council. Most recently shehas been in the inspector general’s office. Wedo not know what the facts are. There are allkinds of conflicting reports. We do not knowwhat went on there, but it is striking to me thatthis is not just somebody who was buried inthe bowels of the intelligence communitywho did not see any other way to get informationout. This is someone who was in theinspector general’s office, which is supposedto provide one of those checks in the executivebranch itself. I do not know what thatindicates. I do not know what happened, but itworries me that it may be an indication thatthe system is broken.Mary knows all the staff people on theoversight committees up on the Hill, and I’veknown Mary for many, many years. I find ithard to imagine that if she felt that these concernscould be addressed either through theinspector general’s process, working its way upto the Hill, or by going to the Hill, that shewould have been inclined to talk to a reporter.She’s saying she did not reveal classifiedinformation. She’s not denying that she haddiscussions with reporters. As I say, we do notknow what the facts are there, but I can’t helpbut wonder whether some of those oversightmechanisms are indeed really broken.Judge Richard Posner (from the audience):I have a question for Ms. Spaulding. This morningwe heard from speaker after speaker howCongress had become utterly impotent, neutralized,that the president with his extravagantbelief in presidential powers had cowed theCongress, and that the Republican Party is sodisciplined that Republican members ofCongress have no independent voice with whichto stand up against this presidential juggernaut.Now we hear that the president is theweakest president in our history. How could itbe that the president has crushed Congress, butthat at the same time his actions in conductingsurveillance in apparent violation of theForeign Intelligence Surveillance Act sooffended Congress, so offended the Americanpeople, that it has rendered him the weakestpresident in history?Suzanne Spaulding:I think Congress’s failure to step up to itsresponsibility in this regard is not so much areflection of their being intimidated by thepower of the president. It is hard to deny that thepresident is at a particularly weak point now.I think your question really goes towhether the fact that Congress is failing tochallenge him is a reflection that the Americanpublic strongly supports what he’s doing in thewar on terrorism. Is that a correct understandingof your question?Judge Richard Posner:Can he be at once a dictator and the weakestpresident in history?Suzanne Spaulding:Yes. He can be at once an avaricious accumulatorof power and very weak. One leads to theother. As to why Congress isn’t then stepping in,I think Congress should be outraged from aninstitutional standpoint at the way in which theyare being rendered irrelevant by the president’sinterpretation of the Constitution which allowshim to ignore the statutes that they draft.John Brademas (from the audience):To respond to Judge Posner’s question, I do not


48 PRESIDENTIAL POWERS: AN AMERICAN DEBATEthink the president is weakened by virtue of theway in which he’s handled the issue of surveillance.I think it is Katrina, it is Iraq, it is theattack on Social Security, it is the rising cost ofoil. Those are what’s weakening him.I served with six presidents, and I didnot hesitate to oppose Democratic presidentsif I thought they were wrong, in respect toVietnam for example. I remember taking partin a conference in England some years ago inwhich we were discussing the same issuewe’re discussing at this symposium. I said atthe conference that, as a member ofCongress, if I were not willing to spit in theeye of the president of the United States,whether he was of my party or not, I wasn’tdoing my job. Part of my job was to thinkfor myself.It is hard work, winning election toCongress, if all you are doing is going toWashington to wait for the White House to calland tell you how to vote.PANEL FOUR: THE NATIONAL SECURITY PRESIDENCYModerator: Professor Noah FeldmanPanelists: Bob Kerrey, Anthony Lewis, Patrick Philbin, Michael VatisAnthony Lewis:The framers of the Constitution did not havethe corporate model in mind – a president anda CEO are not one and the same thing, asJudge Posner has suggested. Rather, theframers had one concern above all others: concentratedpower. So they limited powers – withthe separation of powers and with checks andbalances and with everything else we’ve heardabout today. The touchstone of the law onissues of presidential power is YoungstownSheet & Tube v. Sawyer from 1952, in particularJustice Jackson’s opinion, to which referencehas been made.I think it is interesting to look at the trialof the case before Judge David A. Pine. Thegovernment was represented by HolmesBaldridge, who argued in support of PresidentTruman’s seizure of the country’s steel mills.Judge Pine asked, “So you contend theexecutive has unlimited power in time of anemergency?”Baldridge: He has the power as is necessaryto take such action as is necessary to meetthe emergency.Judge Pine: If the emergency is great, it isunlimited, is it?Baldridge: I suppose if you carry it to itslogical conclusion, that is true, but I do want topoint out that there are two limitations on theexecutive power. One is the ballot box, and theother is impeachment.Judge Pine: So when the sovereign peopleadopted the Constitution, it limited the powersof the Congress and limited the powers of thejudiciary, but it did not limit the powers of theexecutive? Is that what you say?Baldridge: That is the way we read ArticleII of the Constitution.Judge Pine: I see.Anyone who has read the legal claims ofJohn Yoo, David Addington, and other contemporaryproponents of unrestrained presidentialpower will find Holmes Baldridge’s argumentfamiliar, but what is striking to me is that hisperformance before Judge Pine aroused greatoutrage in the country. People saw it as a claimfor dictatorial powers, unlikely as that wouldhave been from Harry S. Truman. But today, itseems to me, there is relatively little publicoutrage at claims for presidential power that gomuch, much farther. Let me indicate why I say,“much farther.”First, President Bush and his lawyersargue that he can do what he wants in fieldswhere Congress has explicitly pre-empted theprocess, the field where Justice Jackson’sanalysis said the president’s power was at its


PANEL FOUR: THE NATIONAL SECURITY PRESIDENCY 49lowest ebb. The Foreign IntelligenceSurveillance Act of 1978, for example, whichwas passed by Congress after extensive debateand long experience with the problem, saysthat it “shall be the exclusive means by whichelectronic surveillance may be conducted.” Inthe teeth of that rule, which, by the way, isenforced in the statute by criminal law,President Bush maintains that he can ordersurveillance without following the statutoryrules. Or consider the torture of prisoners.Torture is prohibited by a treaty to which theUnited States is a party, by a criminal statuteenforcing that treaty, and by the Uniform Codeof Military Justice. But the president’s lawyersargue that it would be unconstitutional to try tostop him from ordering torture, and that thoselegal rules, to the contrary, would be unconstitutionalif applied to him.Second, the unrestrained, unilateral powerssought by President Bush would have farlonger-lasting consequences than the powersought by President Truman in 1952. I think thisis an important point that hasn’t been fullyexplored. The steel mills were seized to preventa strike during the Korean War. Like all previouswars in our history, that one had an end. But thewar on terror, as President Bush defines it, ishard to imagine coming to a definite end.Supporters of terrorism have struck around theworld, from Bali to Madrid. Osama bin Ladenand his followers are not going to board aUnited States warship and sign a surrender. It'shard to see how the war on terror is ever goingto end, when we will be able to say there are nomore terrorists in the world. So, power successfullyclaimed by Bush today will be available topresidents for an indefinite time.Finally, I think the menace of unrestrainedpresidential power is greater today because theclaims are being pressed far more seriously,more tenaciously, than they were in 1952.Professor Yoo has written a whole book maintainingwhat amounts to the proposition, preposterousto me, that the framers of ourConstitution did not have the president in mindwhen they embraced the idea of the separationof powers. What was dismissed as a grotesquelegal argument when Holmes Baldridge made ithas become an industry.These are not abstractions. Our freedom isat stake, yours and mine. George W. Bush, asyou heard from Donna Newman today (Ithought very powerfully), claimed that hecould have American citizens arrested on suspicionof a connection with terrorism, and heldindefinitely in solitary confinement, without atrial, and without access to a lawyer. Thatseems to me to fit precisely the contours of atyrannical state.One American who was detained in preciselythat way, Jose Padilla, Ms. Newman’sclient, remains in prison four years after hisoriginal arrest. In a series of maneuvers, theBush administration's lawyers have avoided ajudicial judgment in his case. He now awaits acriminal trial scheduled for September. As youknow, as you heard today, the other Americandetained without trial who was captured inAfghanistan, Yaser Hamdi, won his case in theSupreme Court, which held that he was entitledto a hearing before a neutral fact-finding body.Rather than provide that hearing, theJustice Department let Hamdi go back toSaudi Arabia in return for giving up his citizenship.In announcing the deal, AttorneyGeneral John Ashcroft still referred to Hamdias an “enemy combatant,” the very chargethat the attorney general had been unwillingto have tested before a neutral tribunal. I’llleave the last word to Justice Jackson, and hisopinion in the Steel case.“With all its defects, delays, and inconveniences,”he said, “men have discovered notechnique for long preserving free government,except that the executive be under the law.”Bob Kerrey:First of all, in general, I think people have to becareful for what they ask for when they areangry, and that's particularly true if you findyourself angry with the president of the UnitedStates. You have to be very careful what youask for, because you may end up getting exactlywhat you ask for, and then, when there is aDemocrat in the White House, say, “Oh, myGod, what have we done?” So I urge caution inthat regard.


50 PRESIDENTIAL POWERS: AN AMERICAN DEBATEI can offer evidence where Democrats inthe past have made change happen when therehas been a Republican president, and thenregretted it afterwards once a Democrat hasbecome president of the United States. I participatedin a trial in the United States Senatewhere Republicans overreached, andDemocrats quite objected to what was goingon during the impeachment of WilliamJefferson Clinton, as did I. I’ve got enoughexperience in this to watch people, as we say inbaseball, “overrun the bag” and then gettagged out as a consequence.Secondly, I share what Oliver WendellHolmes, Jr. once said about the Court – that itis a mirror of society. The Court is the finalarbiter of what is constitutional or not, fortunatelyfor us. It has the independence to makejudgments about what is constitutional or not,fortunately for us – sometimes against publicopinion, and I say fortunately for us, since Ishare the view of the famous jurist who oncesaid that the most dangerous thing in Americais public opinion.The Court is essentially a mirror. It, inessence, has been our constitutional convention.I simply lack confidence in Americansociety to say that we ought to convene a constitutionalconvention. I trust, in fact, theSupreme Court, even under its current configuration,more than I would trust a general gatheringof the American people. What I’m sayingto you is that I do not believe in a strict constructionistview of the Constitution, and thatthe Court merely interprets the law. I believeyou’ve got to bring judgment based uponwhat's going on in the world around us today.Thirdly, I do not believe that the war resolutionthat was passed by Congress in 2002gives the president of the United States anunlimited amount of authority to engage in thewar on terror. I would go further to say thatterror is a military tactic, and that to declarewar on terror would be like declaring war onbombers. It will, in the end, be very unsatisfyingto those of us who are trying to wage a waragainst individuals and groups who use terroras a tactic to disturb, disrupt, and in the end,hopefully bring down democratic governments.So I do not believe that the resolutiongave the president the authority that he claims.I believe, secondly, that by using war as ametaphor against terror as a tactic, we will findourselves in a very unhappy set of circumstancescoming out of this.The last thing I would say is that I thinkthe biggest change that is going on, the onethat is going to put both democracy in theUnited States and our Court to a considerabletest, are these forces that are generallydescribed as “globalism.” I believe it is verylikely that over the next 20 to 25 years thosenation-states that could be enormously dangerousif they fail, will fail. I think it is likely thatPakistan will be a failed nation-state. It ispossible that Russia could fail as a nationstate.It is even possible that China or SaudiArabia could do so as well. This gets me backto my objection to saying that we are fightinga war on terror. Not only will it be unsatisfyingto rally our military against this tactic, I thinkit will lead us to a monolithic policy and to thepresumption that we can solve every single actof terror in the same possible way.Michael Vatis:I’ll start off by recapping one point aroundwhich, somewhat surprisingly, there seems tobe consensus, and that is that if people areupset about the administration’s expansiveinterpretation of presidential power, theyshouldn’t just blame the president and hisadministration. At least equal blame belongs toCongress for acquiescing in this for the lastfive years.If you read the Steel Seizure concurrenceof Justice Jackson, you’ll see that it is oftenmisread. People read the part of the opiniondescribing three situations in which a presidentexercises power – ranging from situationswhere the president is strongest because heacts with congressional authorization to thosewhere “his power is at its lowest ebb” becausehis actions are “incompatible with the expressor implied will of Congress”– and they act asthough there are three very distinct categories,and that you can pigeonhole a certain assertionof presidential power into one of those little


PANEL FOUR: THE NATIONAL SECURITY PRESIDENCY 51boxes, and everything will make sense fromthere forward. I think that is a complete misreadingof the opinion.The central message of Justice Jackson’sconcurrence is that it all comes down to a verymessy political resolution. Presidents aregoing to assert power, and they will take asmuch power as Congress is willing to givethem. When Congress is willing to give thepresident all the power he is able to take, thenyou find yourself in a situation like the onewe have today. People have talked about thetorture memos, and Congress’s utter failureeven to hold meaningful hearings into what'sgone on – not only at Guantánamo and inAfghanistan and Iraq, but at secret detentionsites around the world. Congress also has yet todo anything at all regarding the NSA domesticsurveillance program, which, in contrast to theway the traditional media has portrayed it, isnot merely a circumvention of the ForeignIntelligence Surveillance Act, it is a direct violationof it. It is illegal by any reasonable readingof the law. And yet Congress is still sittingon its hands.The Patriot Act, passed within six weeksof 9/11, is actually the pinnacle of Congress’sinvolvement in the war on terrorism. And Ithink, as such, we should give it faint praise,because at least Congress did something there.At least it saw its role as relevant, and so itpassed a law. But I say “faint” praise becausethe exceedingly rushed way in which Congresspassed the Patriot Act was really quite shameful.Congress seemed almost to acknowledgethe fact that it was derogating its responsibilityin passing the Patriot Act without adequatedeliberation and debate when it enacted sunsetprovisions on certain parts of the Act that itknew would be controversial. That is, Congresssaid, “Well, we’re not going to take the time todebate these now, so we'll make these authoritieslast only for a limited number of years, andthen we’ll hold hearings down the road.”Interestingly, one of the provisions thatwas not sunsetted, that was made permanent,was a drastic expansion of the FBI’s authorityto issue what are called “national security letters,”or NSLs, which are basically administrativesubpoenas that the FBI can issue to banks,credit card companies, Internet serviceproviders, and telecommunications companiesfor records. Before the Patriot Act, the FBIcould issue national security letters for informationpertaining to someone who was a suspectedterrorist or a suspected spy. The PatriotAct expanded the FBI’s NSL authority greatly,so records now can be obtained with an NSL aslong as they are deemed relevant to an espionageor international terrorism investigation,even if the records don’t relate to a suspectedterrorist directly. They just have to be “relevant”to an investigation.Well, not until November of 2005, apparently,did most members of Congress understandwhat this change in authority actuallyentailed. That was when Bart Gellman wrotean article in The Washington Post describingwhat the change in NSL authority meant, andreported that the number of NSLs issued peryear increased a hundredfold after passage ofthe Patriot Act. I understand very palpablywhat this means, because when I served at theFBI I had to sign stacks of NSLs after reviewingthem to make sure that they complied withthe law. I can’t imagine how officials who signNSLs today can go through the vastlyincreased numbers of them with any sort ofmeaningful review.What this boils down to is that Internetservice providers, telecommunications companies,and financial companies are gettingserved with these demands for any informationthat the FBI certifies is relevant to an investigation.There is no judicial review. And until thevery recent amendments to the Patriot Act werepassed, there was no opportunity for a recipientto contest an NSL.I bring this up as a concrete example toshow that even the Patriot Act, the pinnacle ofCongress’s involvement in the war on terrorismup till now, was, in some ways, just a shadowdance of real congressional involvement.Indeed, many in Congress apparently didn’teven realize what they were passing until fiveyears later, with Bart Gellman's article.There is one other point I want to make.When we talk about Congress, a lot of people


52 PRESIDENTIAL POWERS: AN AMERICAN DEBATEmay hear me and others as complaining solelyabout the Republicans. But this is not just aproblem with the Republicans. ManyDemocrats have also shirked their responsibilitiesby not taking on these critical issues.Think about the reaction to RepresentativeJack Murtha’s call for withdrawal from Iraq.Think about the Democrats’ reaction toSenator Russ Feingold’s introduction of acensure resolution. Even if you disagree withtheir proposals, at least they’re talking aboutissues that are fundamentally important to ourcountry and to our constitutional system. Fortoo long, our congressional leadership fromboth parties has not made these issues a toppriority. So we have been deprived of the seriouslegislative attention and debate that oneshould expect in a constitutional democracy.Judge Posner this morning made an analogyabout the relationship between the presidentand Congress. He said the president is likethe CEO of a corporation and Congress is likethe board of directors. But if that’s the analogyyou want to use, then what’s the analogy in thepolitical process to Sarbanes-Oxley? Whatrecourse do we, the “shareholders” in this collectiveenterprise, have to make sure our boardof directors is doing what they’re paid to do onour behalf?There is no recourse other than the ballotbox. And so, unless the electorate does its job,performs its own constitutional responsibilityand votes members of Congress out of officewhen they’re not performing theirs, then wewill not have true political accountability.Professor Richard Pildes asked the rightquestion at the beginning of the day: that is, isthe system now structurally flawed because ofthe way our political parties operate? Arechecks and balances not possible in the way theframers envisioned them? Are there changeswe need to make in the structure of our systemof government, such as giving the minority inCongress subpoena power or things like that?Or is this really just a matter of one good election?Can things be drastically different comethe midterm elections this fall? I’m not sure Iknow the answers. I think we'll have to see ifthe Democrats succeed in taking one or bothhouses of Congress, and if that success makesthem feel emboldened to be true leaders andto exercise their own constitutional responsibilitiesrather than just acquiescing to theexecutive branch.But there is one structural change thatcould encourage Congress to perform itsresponsibility to engage on these difficultissues. There is something the courts can do inthe way they approach separation of powersquestions, questions that involve a constitutionalstruggle between the political branches.The Supreme Court’s decision in Hamdi v.Rumsfeld two years ago is a perfect illustrationof what I mean. Liberals were greatly heartenedwhen the Supreme Court rejected theadministration’s extreme assertion of executivepower to detain U.S. citizens as “enemy combatants.”Justice O’Connor’s opinion essentiallysaid to the executive branch, “No, that’s toofar, and we’re going stop you right there.” Butshe then went on to prescribe the legal processthat she thought must be afforded to detainees.I think that Justice Scalia was correct in callingher to task for that and saying, essentially,“Look, it is Congress’s responsibility to determinewhat procedures should be accorded todetainees, to balance detainees’ rights againstthe executive’s needs in fighting a war. Andevery time the Court steps in and doesCongress’s job for it, it’s simply enablingCongress to abdicate its constitutionalresponsibilities.” In other words, whenCongress doesn't act and the Court steps inand says, “Well, if you don’t do your job,we’ll do it job for you,” that actually justfacilitates legislative dysfunction and compoundsthe problem.I think Justice Scalia had his finger on oneway to reinvigorate checks and balances. Thatis, the courts can simply say “no” to an unconstitutionalact by one of the political branchesand leave it to them to devise a constitutionalsolution to a problem. So, if the executivebranch wants to detain someone without criminalcharges and Congress hasn’t passed legislationto authorize it, and hasn’t suspendedhabeas corpus, then the courts would requirethat the detainee go free unless charges are


PANEL FOUR: THE NATIONAL SECURITY PRESIDENCY 53brought or appropriate legislative authorizationis enacted. That would get Congress’s and thepresident’s attention in a hurry. And ultimatelyit would compel politicians to do their jobs anddevise an appropriate legal solution, ratherthan leaving it to the courts to do their jobs forthem. So in this way, judicial restraint-sayingwhat the law is but not then going further anddoing Congress’s job by dictating the solutionto the problem – would have the salutary effectof encouraging the legislative branch to performits constitutional role.Patrick Philbin:I’m going to disagree with a lot of what I thinkhas been the overwhelming majority sentimenttoday, about there being an extraordinary overreachingof executive power during the Bushadministration, something that is a sea-changefrom the past, that breaks with all tradition,that has brought us to the brink of the extinctionof civil liberties and a crisis from whichthe republic might not ever recover. I disagreewith that.I’d like to try to sketch out why I thinkthat, yes, we’re in a time of change, as KarenGreenberg pointed out at the beginning thismorning, but in a time of change that is perfectlyconsistent with the sort of crises thatthe framers expected would arise, and thatthey expected the Constitution would be ableto withstand. This is something that theyplanned for in the way they allocated power inthe Constitution, and as a result things aregenerally functioning the way that theyshould within the constitutional framework.Checks and balances, in fact, are operatingand can address any imbalances that mightarise from the current crisis of what is reallya national security crisis.The attacks of 9/11 and the subsequentsituation in which we find ourselves dealingwith international, non-state terrorist actorswho can wreak havoc on the mainland UnitedStates creates a national security crisis, anational security issue, unlike one that has everbeen faced before in the country’s history. Thisputs a lot of special focus on what the nationalsecurity powers of the government and of thepresident are. It puts focus particularly on thecommander in chief power in a way that wehaven’t had to consider in great detail in thepast, that is, in conventional wars againststates. This just means that as we further developour understanding of the Constitution, weneed to focus more on the Commander inChief Clause, and to understand what powers itgives the president, and what powers it doesn’tgive him. Each era has its own constitutionalissues to work through, and this is one for us toface now.It’s certainly true that, in a time of crisis,power tends to flow to the executive. As anempirical matter, that’s certainly true. Powerdoes tend to flow to the executive, because theexecutive can respond to a national securitythreat. I think that, normatively, under theConstitution, that is what the framers expected.They set up the executive and understood theexecutive to be the branch of the governmentthat would deal with foreign threats, withcrises of national security. It’s apparentthroughout the Federalist Papers that the executiveis conceived of as being the branch bestable to act with secrecy and dispatch and toarray the forces of the United States. That iswhy the president is made commander in chiefof the armed forces. It is why, since the administrationof Washington, the president hasbeen given funds to use for secret intelligencepurposes. Those are functions that theexecutive is best able to deal with.This current crisis, I think, particularlydemands those traits of the executive – that itbe able to act with secrecy and dispatch anddecisiveness, because this is not like a conventionalwar where there is a great battle goingon, on a foreign battlefield. That is the wayAmericans usually tend to think of wars, or wehave until now, because we had World War I,we had World War II, we had Korea, we hadVietnam. War became something that happensoverseas, with big armies in the field, withCongress behind it, with there having been adeclaration of war – all of it handled in a waythat is largely in public view.Today’s war is a very different kind of war,but a war nonetheless. And I’d like to take


54 PRESIDENTIAL POWERS: AN AMERICAN DEBATEsome issue with those who have talked about itbeing a war on a tactic. The war on terrorism isa rhetorical tag-line that may not be the mostprecise way of describing things. But it is a warnonetheless. It is a state of armed conflict withal Qaeda. There is an organization and thereare terrorist groups affiliated with al Qaedathat are capable of inflicting damage on theUnited States, as we saw on 9/11, as we saw onthe attack on the U.S.S. Cole, and as we saw inthe bombings of our embassies in Africa –damage that amounts to that which creates astate of armed conflict.So we are in an armed conflict with anorganization capable of killing more people onthe mainland United States than have beenkilled since the Civil War. This brings into playpowers of the executive as the commander inchief to protect the nation from attack. Now,because it is not a war that involves largearmies in the field, but a secretive foe thatoperates by stealth, that operates by secretingpeople into the country, so that they can lie inwait, and then launch an attack unexpectedly,this is mostly a war that relies on intelligence.It is a war where it is more important thanin any other war that there be good intelligenceon the enemy, because it is the whole name ofthe game. And, to some extent, I don’t thinkthat people realize that people in the government,every day, every week, are presentedwith the threat information showing that everyday there is a group of people out there who arevery intelligent, very highly motivated, andvery skillful, who are staying up late and gettingup early figuring out the best way to kill100, 1,000, 10,000 Americans; whether there issome way they can get somebody into thecountry; or if there is some way they can get adelivery vehicle to bring biological weapons;or how to find anything that will work to createmass panic and havoc in the United States.This is going on all the time.That is what the powers of the executiveare expected now to address. And that puts alot of special focus on the meaning of theCommander in Chief Clause. What is it that thepresident as commander in chief of the armedforces can do to protect the United States?I want to disagree with Judge Posnerabout the idea that the historical materials don'treally tell us much. I think there are historicalmaterials. We have to look at the debatesaround the framing of the Constitution, at earlydecisions of the Supreme Court, and at the fewoccasions on which the Supreme Court hassaid something about what the Commander inChief Clause means, and what the powers ofthe executive are.Drawing on these sources, one can seethat in the realm of confronting the enemy(what the Department of Defense would callthe “battle space,” which is three-dimensionaland includes cyberspace, the space where theenemy is engaged), the president has completecontrol to determine how the United States willconfront and defeat the enemy. He can arraythe forces of national power to defeat andconfront the enemy.That is something different from whatappears in the broader rhetoric today; namely,the idea of unchecked executive power to doanything. As Tony Lewis suggested, it isinstructive to look at the district court decisionin the Steel Seizure case. That case was aboutthe expansion of executive power on the claimof commander in chief power, based on theclaim that in a time of war, a state of emergency,the president has to be able to do somethingto control an industry. He has to controlthe steel industry because the steel industrymakes weapons, and armor for tanks, and otherthings that are then sent overseas to support thearmies in the field. That’s expanding the commanderin chief power from the space of actuallyconfronting the enemy, where you are incontact with the enemy and doing something todefeat the enemy, to one, two, three stepsremoved, to the situation where there is a generalemergency that needs the commander inchief power to be extended in order to addressthat emergency.That is not what is going on in any of theclaims of power by the Bush administration.Everything that has been talked about today –NSA surveillance, interrogation issues, detentionissues for enemy combatants – those areall related to engaging directly with the enemy.


PANEL FOUR: THE NATIONAL SECURITY PRESIDENCY 55And so I think there is a much more limitedand focused issue of the executive powersallowed in the Commander in Chief Clausethan some of the broader assertions would tendto suggest. I don’t think that the powers that thepresident has asserted have given rise, at all, towhat seems to be a general consensus heretoday, that we are on the brink of the extinctionof civil liberties.I will try to use three examples to makethe point and show what I am talking about.First, there have been many assertions that thepresident has said he can ignore the law, or thathe can override the law, or that he is above thelaw, or that no matter what the Congress says,he is going to do something anyway. As a generalmatter, all administrations, Republicanand Democrat, all Offices of Legal Counselhave taken the view that the president is notbound by a law of Congress that is unconstitutional.If Congress passes an unconstitutionallaw, the president is not bound toenforce it, or to be governed by it. That is anunremarkable proposition.It doesn’t indicate the breakdown of theconstitutional structure. In fact, it’s the positiontaken by every administration, every president,and is one that depends on the president’s oathin the Constitution that he faithfully executethe laws. The executive has an independentobligation, as some of the speakers said earlier,to determine what the Constitution requires,and that includes determining when Congressmay have overstepped its bounds.The second point I’d like to make aboutcivil liberties has to do with the detention ofindividuals, and in particular, Jose Padilla.There have been a number of suggestions thatit is outrageous that a U.S. citizen could bedetained in the United States without being puton trial, and without access to a lawyer. In1942, when German saboteurs entered theUnited States, they were stopped by the FBI inNew York and in Chicago. They were transferredto military control, tried by a militarycommission, and within the space of two or somonths, six of them were executed. TheSupreme Court in Ex Parte Quirin determinedthat this was lawful.In exactly similar circumstances, JosePadilla – after conspiring with al Qaeda anddetermining on a couple of plots to destroybuildings in the United States – entered theUnited States, was picked up by the FBI inChicago, and was transferred to military control.Since then, because he had a lawyerwhile in FBI custody, he has been able tochallenge his detention, and to have his casego up to the Supreme Court. The SupremeCourt ruled on it once, sending it back downto the lower courts. Ultimately, because criminalcharges could be brought against him, itwas transferred to Justice Department controlfor a subsequent criminal prosecution. That isa standard assertion of executive power inwartime to detain enemy combatants, and itshould not be deemed remarkable that thesame power that was asserted in 1942 wasasserted again after 9/11.The third subject I will touch on is theNSA surveillance program. People have notfocused on the fact that the administration’sexplanation for the program focuses primarilyon the congressional authorization for use offorce. The primary justification is not that thepresident has the authority to ignore law oroverride law, that FISA is unconstitutional, butthat the Authorization for Use of MilitaryForce, as interpreted by the Supreme Court inHamdi, is broad enough to allow the presidentto use all ordinary incidents of war-makingpower to conduct that surveillance.I think that there is legitimate debate tobe had about what power Congress has torestrict the authority of the commander inchief in wartime to conduct signals intelligence.Judge Posner asked earlier, what ifthere were troops of a foreign enemy in theUnited States who had their communicationsystem going? Would FISA prevent the presidentfrom intercepting their communications?As written, it would. As written, the presidentcould not deliberately intercept their communications.But that would be absurd. It wouldbe clearly unconstitutional.How far different is it, if there are alQaeda operatives in the United States planninganother attack, for the president to want to


56 PRESIDENTIAL POWERS: AN AMERICAN DEBATEintercept their communications? That is aquestion for serious legal debate and not somethingthat is to be swatted aside.Finally, I will say a couple of words onchecks and balances. I think that checks andbalances are functioning today. One goodexample is the Supreme Court’s role in theRasul decision. The administration had arguedthat there was no habeas corpus jurisdictionover detainees held at Guantánamo Bay, Cuba.The Supreme Court disagreed with that. (Ipersonally think that decision was wrong. Ithink that Johnson v. Eisentrager was a clearprecedent, squarely on point, establishing thatthere was not habeas corpus jurisdiction toentertain petitions from enemy aliens whowere being held overseas as these detaineesclearly were, in Cuba. But the Supreme Courtmade its decision.)The administration abided by the decision,and started to set up a system to allow thehabeas cases to go through. And then Congressthought that the Supreme Court had gone toofar and that there were good policy reasons forthe fact that Eisentrager had been the rule for50 years. So Congress passed a statute thatthen tinkered with how much habeas reviewthere could be. That is exactly the sort of systemthat one would expect that the framersanticipated and would approve of. The Courtcame up with one decision. Congress didn’tlike that decision and acted quickly to alter it.This shows both the role of the courts andCongress. And I think generally I would saypeople complained a lot today about the complacenceof Congress, that Congress is just layingback and not doing anything, and lettingthe president run rough-shod all over them. ButI think what that reflects is not that Congress isweak or that Congress is not living up to itsrole, but that Congress does not think in a lotof these instances that what the president isdoing is wrong.It reflects the belief that the president istaking appropriate action to defend the nationfrom potential enemies. If Congress has thatassessment, that’s just a reflection of whathappens in a democracy. It is reflecting that(as several people have pointed out) theAmerican people, when polled, are notopposed to the NSA program. They do notthink that it is a problem.The American people and their representativesin Congress are reflecting the way thatthe checks and balances would work out in ademocracy. As several panelists on this panelhave said, ultimately, as Justice Jackson wassaying in his concurrence in the Steel Seizurecase, checks and balances do come down inpart to something political, particularly when itis an issue of power between the executive andcongressional branches. When Congress isreflecting what it senses is the mood of thenation, that the president is taking appropriateaction in exercising his commander in chiefauthority, then that is how the checks andbalances are meant to work.EXCERPTS FROM THE QUESTIONAND ANSWER SESSION:Noah Feldman:I’m going to direct some questions to particularmembers of the panel. Senator Kerrey, Iwonder if we could start with you. The questionwas raised earlier – where are theDemocrats? And I saw you writing down,“Where are the Democrats?” I wonder if you’daddress that issue.Bob Kerrey:I disagree with Michael’s representation ofwhat Chuck Schumer, Hillary Clinton and othersare doing. It’s a pretty common practice,actually. It’s unfortunate in a democracy, but ithappens. It’s a very common thing to assertthat, because somebody disagrees with you,they’re unprincipled, that they’re courtingpublic opinion.I barely survived after voting for NAFTA,after voting for the assault rifle ban, after votingfor the Brady Bill, after voting forPresident Clinton’s budget. The president thentrimmed hard to the right in order to get electedhimself. On the other hand, I’m glad that hedid, because had he not been president of theUnited States, we would not have been able toincrease the minimum wage, expand the


PANEL FOUR: THE NATIONAL SECURITY PRESIDENCY 57income tax credit, and pass the children’shealthcare. We did a lot of things because hetrimmed to the right in order to survive inthe election.There are two kinds of people inWashington, DC: those who can count andthose who lose. If you do not like that aboutdemocracy, it is a really difficult thing to survivein it. You can sit on the sidelines andobject that people are following public opiniontoo much, or trimming this way or that way,but that’s how the Missouri Compromise wasput together.I love it when the left objects and peoplecompromise, and the right objects and peoplecompromise, and then both of them objectbecause nothing gets done. How do you thinkthings get done? People come together andthey say, “We’re going to settle this by givingup some of the things that we had demandedin our arguments.”Noah Feldman:I wonder, Tony Lewis, if we could turn to you.I want to ask you specifically aboutYoungstown – and this view of Youngstown thatboth Patrick and Michael espoused – ofJackson’s concurrence as advocating kind of apolitical-reality oriented compromise. I thinkit’s clear that the opinion can withstand thatreading, but I wonder if you do read it that way.I also wonder if you think the historicalcontext for the opinion might be relevant intrying to make sense of what it means. I have aview on it, but I would like to hear yours. Thereason I’m particularly interested in this is thatthere's a very crucial question of whether theYoungstown opinion applies at all to this fullrange of issues. Patrick pointed to it. John Yoohas also written about this.That is the view that Youngstown is onlyspeaking about the president operating in whatPatrick called the “battle space,” thatYoungstown draws the distinction betweenwhat the president can do in the battle spacewhere he’s commander in chief and what thepresident can do domestically, which Jacksonreally emphasized in the opinion where hesays, this is a paraphrase, that the president iscommander in chief of the armed forces, he’snot commander in chief of the country.If you interpret Youngstown as saying thatthe president is limited in what he can do outsidethe battle space, and then you move on tosay that the whole country, including cyberspace,is the battle space, then the truth is thatthe Youngstown opinion is an interestingopinion with no applicability to any of theissues that we’ve been discussing over thecourse of the day.Anthony Lewis:I think you’ve answered your own question,Professor Feldman. But I don't think you canexplain Jackson's opinion as entirely thinkingthese matters should be left to politics because,after all, he made what was a very difficultdecision, and a very controversial one at thetime, to use the power of the Court to interveneon the issue, and to hold the action of PresidentTruman unconstitutional. That was the bottomline. And the court exercised a power that israrely exercised. And it was a very largepower, indeed.As Jackson said, the president is not commanderin chief of the country, its inhabitantsand its business. The difficulty is in exactlywhere you ended up, Professor Feldman, thatthe line isn’t so secure. If you follow the Bushadministration’s thinking, then anything to dowith the war becomes a battlefield matter forthe president’s sole decision and theAuthorization for the Use of Military Forceallows anything that remotely can be consideredrelevant to the struggle. I personallyregard that argument in this instance, the NSAinstance, as a frivolous argument. But it wasmade, that’s true.I thought Mr. Philbin had a lot to say, but Idisagree with him quite fundamentally onPadilla. I do so in part because he misrepresentedwhat happened. He said Padilla plottedthis, that and the other thing. No such findinghas ever been made. That’s an assertion by theUnited States government, which, indeed, it hasdropped in the criminal phase of this matter. Itis no longer even asserting those things.The Nazi saboteurs had a trial, which


58 PRESIDENTIAL POWERS: AN AMERICAN DEBATEPadilla has not had. And even then, the case,Ex Parte Quirin, was correctly described byJustice Scalia in Hamdi v. Rumsfeld as “not theCourt’s finest hour.” It was a rush to judgmentin which the saboteurs were executed beforethe opinion of the Supreme Court was writtenand published. It was not the Court’s finesthour, and I wouldn’t rely on it for anything.But, in any case, it wasn’t the same as this.Patrick Philbin:The Quirin decision, I think, is a correct understandingof the commander in chief power, anunassailable understanding of the commanderin chief powers. And I would rely on it, I do relyon it. I think that the Quirin decision is correct.Richard Pildes (from the audience):I want to express my frustration with the waysome of this discussion is going and also myfrustration with the larger public discussion.Let me put it in concrete context of issuesabout whether, for example, we need some sortof policy of preventive detention in the UnitedStates in the context of terrorism today. I thinkthat’s a hugely serious and difficult issue, andwe've had almost no discussion about whatintelligent policy about an issue like that wouldbe, nor has Congress gotten involved in anyway on so many of the novel and difficultpolicy issues terrorism poses.So, on the one hand, we have lots of discussionof Padilla and that form of executivedetention. Now, of course, it is one case in fiveyears since September 11th of an Americancitizen detained in the United States, so youmight think that it is a rarely used form ofexecutive power to use detention during thesecircumstances, but there’s been an enormousamount of criticism of it without any discussionabout possible alternatives.I don’t know, and I don’t have the informationto know, whether we need a system ofpreventive detention. I do think that it would bemuch better if Congress engaged an issue likethis, and was forced to take some responsibilityfor such an issue. If we did have a system thatwas created by Congress on any of these novelpolicy issues, such a system would have moreoversight and much more accountability thanthe executive detention system we now have.The current system was created in part becausewhen executive-branch lawyers were scramblingaround to look for how to do this theyhad the old case from World War II on thebooks and that was closest thing to an off-theshelfmodel.So, that’s the big issue. What is sensiblepolicy about preventive detention or any ofthese other issues? And I think the question ofsound substantive policy gets lost in the focuson the unilateralism of the exercise of detentionpower in the one case involving anAmerican citizen that’s occurred, without anygeneral public discussion about whether thereis in fact a need for something in betweenunilateral executive detention and nothing butthe ordinary criminal trial process.Anthony Lewis:It’s a rather frightening idea to me that weshould be discussing generalized preventativedetention. Of course, it was only one case asyou say, but it is one case that made a claim ofpower that could apply to anybody; an undisclosedbasis for detaining somebody foreverwho never gets a chance to argue the facts ofthe case before an impartial tribunal. That’s thereality of the situation. If it could be done toJose Padilla, why not to anybody else? It’s onlyan assertion by the executive of charges whichare never tried.I want to call something to your attentionhistorically that might make you less eager forcongressional resolution of such matters. I’m abit more of a cynic about Congress than youare. Just as in the old days when the word“communist” was mentioned, Congress ran inthe opposite direction as fast as possible, Ithink that’s true of the terror issue today, and Ithink it’s why Rasul was overruled in the nastyand hasty way it was by Senator Graham’samendment.In 1954, Congress passed a communistcontrol act, and liberal Democrats, wanting toshow how they were even more anticommunistthan the Republicans who sponsored the bill,proposed an amendment to call for detention at


PANEL FOUR: THE NATIONAL SECURITY PRESIDENCY 59the president’s wishes whenever there was adeclaration of emergency at the president’swishes. The amendment was added to the bill,and the Democrats all faithfully voted for thebill as amended and it passed. I think it wouldbe a very bad idea to fool around with thenotion of detention in advance of any possibleclaim of necessity.Michael Vatis:I have two points. The first one is just a shortclarification to respond to a couple of commentsSenator Kerrey made about my views.I don’t criticize Democrats as being unprincipledbecause they disagree with me. My problemis with those who might agree with me onthe substance of important issues but who havenot doing anything about it. In fact, the peoplewho disagree with me on these issues, as VietDinh said this morning, are being principled inthe sense that they are saying what theybelieve, and they’re now undergoing the consequences.But many Democrats are simply makinga tactical decision not to make a big dealabout NSA surveillance, or torture, or otherissues we’re talking about because they think itwill cost them votes. I disagree with that as amatter both of principle and of tactics. I thinkit’s their responsibility to take action on issuesfundamental to our country and our constitutionaldemocracy. And I also think they aregoing to lose elections if they continue to beshy about national security.As to the point that Rick Pildes broughtup, Padilla is not the only case of executivedetention. Remember, there were hundreds,some say thousands, of people preventativelydetained as material witnesses and then silentlyreleased. That’s preventative detention ineverything but name. And the problem is thatwe’ve allowed this to occur because we’vetreated the last five-plus years as somethingthat Patrick Philbin described (and DavidRivkin described earlier) as a crisis. The governmenthas asserted that we’re still in a crisis,that we are in wartime. People have acceptedthose descriptions unquestioningly. The problemis that if you don’t unpack those descriptions,you’re left with false analogies to WorldWar I, World War II, and the Civil War asthough today is analogous to those times whenit’s not.I do not underestimate the threat. I startwhere Judge Posner did this morning. I thinkthe threat, not just of conventional terroristattacks but of ones using weapons of massdestruction, is very real. It is existential.Hundreds of thousands, even millions of peoplecould die, and the threat is only going togrow as technology puts more and moredestructive power in the hands of individuals,not just nation-states or organized groups.The question is, how do we deal with thisover the long term? We first have to realize thatthis is not a short-term crisis. It’s really goingto last the rest of civilization. So, how do civilizationsdeal with the destructive power thattechnology puts in the hands of individuals?Do we leave it to the executive branch as wehave tended to do in short-term crises? Or dowe apply all the instruments of our democracy,including legislation? I would submit that thatis what we need to do. Put this back into thetraditional modes of policymaking and don’tjust say we’re in crisis, let the executive dowhatever he thinks is necessary and be donewith it.Patrick Philbin:On the question of preventative detention, Ithink it’s right to focus on that concept as beingthe issue, to abstract it from just the individualcase of Padilla and to say there is an issue, aproblem, that the executive is trying to dealwith. How should we best address that overallproblem?I am not sure where I would come outultimately. I am not sure I have an answer, butI think, and for the sake of argument, I agreewith Mr. Lewis that it is better not to haveCongress institutionalize or create a mechanismfor it. I would say that once you start topass statutes that allow something, and youhave a regular process for it, it becomes a loteasier to do it, and it becomes something thatis less extraordinary.At one point, I think it was when I wasstill working in OLC, there was an official


60 PRESIDENTIAL POWERS: AN AMERICAN DEBATEfrom the British government who came in. Hewas doing a sort of review of their terrorismlaws and had come to the United States to findout what our legal approaches were.He was asking me about enemy combatantdetentions and why we did things that way.I was explaining that part of the view was thatwe have a lot of restrictions in our criminallaws that are set by the Constitution, and wedon't want to change any of those. The criminallaw is going to stay the criminal law; we are notgoing to reduce any protections. We’re notgoing do anything else.When there’s an extraordinary case thatwe cannot proceed with criminally, but there isa threat presented and something has to bedone, we have this other set of authoritiesunder the war powers, and those are extraordinary.As was pointed out, there has been onecase in five years. You proceed under the warpowers, then, recognizing that it is the presidenthimself who is going to make a decisionabout detention, that this is an extraordinaryaction. That by itself ends up being a check onit because you just don’t do that kind of thingvery easily.Bob Kerrey:On this issue of preventative detention, I thinkit is a very complicated issue and you have tobroaden it. You cannot just talk about peoplewho are an existential threat as a consequenceof their decision to use terrorism as a tacticagainst us. If you are a woman in New YorkCity and your husband has beaten you almostto death, and you go to the police department,the law does not allow him to be preventativelydetained. You can get some action but you basicallyhave to wait for him to come back andreally hurt you so badly that he is obviously adanger. So there are preventative detentionissues beyond this issue of terrorism.The problem I have with what the presidentis doing right now gets more into acost/benefit analysis. I think Guantánamo andthe renditions have damaged our capacity tomake a case that modernism and democracyare the best choice. I think it damages it and,moreover, I think the evidence is there that infederal court we’ve done a pretty good job ofbringing people to justice.Noah Feldman:I just want to say in closing, and this goes toRick Pildes’s point and some of the responsesto it, there is a natural tendency in the wake ofsomething like 9/11 towards collective denial;denial specifically of the possibility that itcould happen again. That makes certain kindsof debates extremely difficult.One thing in particular for which KarenGreenberg is to be complimented is thatthrough the Center on Law and Security, forthe last several years and particularly today,she has made sure that we are not in denialabout the difficulty of the kinds of problemsthat are crucial to our nation and to its future.Karen J. Greenberg:I have but two closing remarks. The first is thatwith thoughtful, candid, courageous, and politepanelists such as today, I do not have as manyworries about the country as I had when I wokeup this morning. And my second comment isthank you. Thank you to the participants.Thank you to the moderators. And thank you,most particularly, to the audience.TABLE OF CASESCunningham v. Neagle, 135 U.S. 1 (1890)Ex Parte Quirin, 317 U.S. 1 (1942)Goldwater v. Carter, 444 U.S. 996 (1979)Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006)Hamdi v. Rumsfeld, 542 U.S. 507 (2004)Johnson v. Eisentrager, 339 U.S. 763 (1950)Marbury v. Madison, 5 U.S. 137 (1803)Morrison v. Olson, 487 U.S. 654 (1988)Padilla v. Hanft, 126 S. Ct. 1649 (2006)Rasul v. Bush, 542 U.S. 466 (2004)Rumsfeld v. Padilla, 542 U.S. 426 (2004)U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)U.S. v. Rosen (AIPAC), 445 F. Supp. 2d 602 (E.D. Va. 2006)U.S. v. United States District Court (Kieth), 407 U.S. 297 (1972)Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure),343 U.S. 579 (1952)


ABOUT THE CENTER ON LAW AND SECURITY 61ABOUT THE CENTER ON LAW AND SECURITYFounded in 2003, The Center on Law and Security is an independent, non-partisan,global center of expertise designed to promote an informed understanding of the majorlegal and security issues that define the post-9/11 environment. Towards that end, theCenter brings together and to public attention a broad range of policymakers, practitioners,scholars, journalists and other experts to address major issues and gaps inpolicy discourse and to provide concrete policy recommendations.Through its many activities, the Center generates local, national, and internationalawareness of the legal dimension of security issues. These programs include:ConferencesProsecuting Terrorism: The Global Challenge, May 2006Terrorism and Security, June 2006Open ForumsAl Qaeda, with Steven Simon and Lawrence WrightHezbollah, with Peter Bergen, Hala Jaber, and Michael SheehanThe Muslim Brotherhood with Alexis Debat and Nick FieldingDistinguished Speaker Seriesincluding Bernard Haykel, Seymour Hersh, Scott Horton, Ted Sorensen,and Jeremy WaldronWeekly Colloquiumled by professors Noah Feldman, David Golove, Stephen Holmes, andRichard Pildes; with national security experts and legal scholars includingViet Dinh, Joshua Dratel, Judge Kenneth Karas, Marty Lederman, andJudge Richard PosnerSalon Dinnersincluding Richard Clarke and Gary HartResearch FellowsPeter Bergen, Sidney Blumenthal, Paul Cruickshank, Amos Elon,Tara McKelvey, Dana Priest, Michael Sheehan, and Lawrence WrightPublicationsFor the Record: The NSA Wiretap Program, January 2007; Terrorist Trial ReportCard: U.S. Edition, 2001-2006; NYU Review of Law and Security: Volumes 1-7,2003-2006 (including Al Qaeda; Crime vs. War: Guantánamo; Torture, theCourts, and the War on Terror; and Prosecuting Terror: The National Challenge)


62 PRESIDENTIAL POWERS: AN AMERICAN DEBATETHE CENTER ON LAW AND SECURITY AT THE NEW YORK UNIVERSITY SCHOOL OF LAW110 West Third Street, Suite 217New York, NY 10012(212) 992-8854www.lawandsecurity.org • CLS@juris.law.nyu.edu


INTRODUCTION TO THE JOHN BRADEMAS CENTER 63AN INTRODUCTION TO THE JOHN BRADEMAS CENTER FOR THE STUDY OF CONGRESSSeveral colleges and universities in the United States have established institutes named forformer senators and representatives. These institutes are customarily dedicated to housinglegislators’ papers; studying the federal government generally; or focusing on a particularsubject or policy, such as issues affecting the elderly, or encouraging young people to gointo public service. Few of these institutes pursue the study of Congress as a policymakingbody. Given the great challenges confronting our country and the responsibility of the leadersof our national government, including senators and representatives, for dealing withthem, I think it imperative to encourage more understanding among both scholars and thepublic of how Congress works to create policy.So my principal project now is the establishment off a center for the study of Congressas a policymaking institution. It is a place to which we shall bring presidents, senators,representatives, current and former Democrats and Republicans, cabinet officers, congressionalstaffers, judges, diplomats, journalists, parliamentarians from other countries,students and scholars to discuss the ways in which our national legislature influences andshapes policy, as well as significant issues of public policy. The purpose of The Center forthe Study of Congress will be to encourage the exchange of ideas amongst scholars andpolicymakers, thereby promoting the creation and dissemination of knowledge and publicunderstanding of what is, after all, the first branch of government.Among the many topics the Center plans to examine are the speakership of the Houseof Representatives, congressional redistricting, legislation ensuring education for thedisabled, Congress and the federal judiciary, and the development of a public policy topreserve the papers of senators and representatives. – John Brademas

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