NSA spying — will Obama lead or punt to courts, Congress and harm the presidency?

Reuters

Article Highlights

  • Under Barack Obama, the presidency’s control over national security intelligence has come under a crippling cross-fire.

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  • Mr. Obama’s first instinct is to shift national security responsibility to other branches of government.

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  • Kicking the intelligence question to Congress or the courts undermines the Oval Office by reversing the polarity of its constitutional powers.

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Under Barack Obama, the presidency’s control over national security intelligence has come under a crippling cross-fire.

From the right, in December Bush-appointed Judge Richard Leon found the National Security Agency’s “Orwellian” phone records collection program to violate the Constitution.

From the left, the White House’s own blue-ribbon commission recently urged the president to place an “out of control” NSA under unprecedented judicial, bureaucratic, and even private controls.

If he makes the same mistake again, Mr. Obama will follow in the footsteps of failed presidents who shrunk before similar challenges, to the long-term harm of their office.
Mr. Obama may rise up to defend the NSA from the growing chorus of critics in Congress, the media, and the antiwar wing of his own party.

He might blunt the effort to subject the NSA’s national security mission to the stricter rules that govern domestic law enforcement.

He might even preserve the intelligence agency’s ability to collect phone calls and email data that, by the account of two successive administrations of both parties, has stopped terrorist attacks on the United States and its allies.

But don’t count on it.

Mr. Obama’s first instinct is to shift national security responsibility to other branches of government -- witness his past attempts to try the 9/11 plotters in civilian court in New York City, move the terrorists in Guantanamo Bay, Cuba to a domestic prison, and ask Congress decide on intervening in Syria.

If he makes the same mistake again, Mr. Obama will follow in the footsteps of failed presidents who shrunk before similar challenges, to the long-term harm of their office.

Kicking the intelligence question to Congress or the courts undermines the Oval Office by reversing the polarity of its constitutional powers.

The Framers created the presidency precisely because foreign affairs and national security pose unique challenges to a legislature, which cannot react quickly to sudden, unforeseen events.

“Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man,” Alexander Hamilton explained in "Federalist 70."

Only a single president could marshal the nation’s resources with the energy and vigor to effectively protect its security.“Of all the cares or concerns of government,” he added in "Federalist 74," “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.”

Presidents who have defied the Framers’ design have led the nation into some of its greatest disasters, despite their great intellect or political skills.

Take, for example, James Madison, our fourth president. Madison wrote the first draft of the Constitution, co-authored "The Federalist" with Hamilton and John Jay, and led the fight for the Constitution’s ratification.

But when attacking (at Thomas Jefferson’s behest) George Washington’s 1793 proclamation of neutrality, Madison argued that Congress should decide all questions of war and peace.

“Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded,” he argued.

Madison kept true to his beliefs as president. By 1812, the nation was profiting handsomely from trade during the Napoleonic Wars.

Nevertheless, war hawks in Congress -- the term first appears here in American history -- drove the nation into a conflict with the only contending European nation with a powerful navy and a shared border with the United States.

Madison did not exercise his presidential authority to stop the rush for war, but instead left the ultimate decision to Congress.

Of all our nation’s conflicts, the War of 1812 may have been the most strategically dangerous. It led to a crippling naval embargo, a series of desultory assaults on Canada, a British incursion that captured and burned the capital, and a major land invasion at New Orleans that sought to split the nation into two.

Only the end of the Napoleonic war and Andrew Jackson’s heroic defeat of the British invasion force preserved American independence. A more confident and assertive chief executive would have saved the nation from this disaster.

Presidential deference to other branches on national security has not just led the nation into mistaken wars, it has also kept us out of vital ones.

When secession read its ugly head in the wake of Abraham Lincoln’s election, James Buchanan sat in the Oval Office. Like the president-elect, Buchanan believed the Constitution did not permit states to leave the Union.

Unlike Lincoln, however, Buchanan – an accomplished Senator from Pennsylvania and former Secretary of State – concluded that the president did not have the constitutional power “to make war against a State.”

Buchanan called upon “the only human tribunal under Providence possessing the power to meet the existing emergency,” Congress, which promptly appointed a special committee to develop a solution.

By contrast, Lincoln maneuvered the Confederacy into firing the first shot at Fort Sumter in April 1861, raised an army and navy, imposed a blockade on the South, and sent federal troops into action – and then waited until July 4, 1861 to seek Congress’s approval after-the-fact.

Lincoln never gave up the mantle of leadership, including his freeing of the slaves with the Emancipation Proclamation and his control over military strategy, and his control over the terms of the peace.

Scholars today generally rank Lincoln as one of the three greatest presidents in our history (along with Washington and FDR), and Buchanan as the worst.

Mr. Obama need not revisit the 17th or 18th Centuries to see the pitfalls in relying on the other branches for leadership in foreign affairs. He need only turn his gaze to post-Watergate years, when President Nixon’s undeniable abuses of the executive power led Congress and the courts to overreact in expanding their controls over national security.

Over Mr. Nixon’s veto, Congress passed a War Powers Resolution that limits foreign military interventions to less than 60 days without congressional approval.

Presidents ever since have refused to accept the WPR’s constitutionality, but have often foreshortened their wars into the resolution’s artificial deadline.

Congress passed the Foreign Intelligence Surveillance Act and gave the courts a veto over the executive’s surveillance of foreign enemies.FISA also produced the “wall” between our nation’s foreign and domestic intelligence agencies that allowed the 9/11 hijackers to succeed.

Even after U.S. withdrawal from South Vietnam, Congress cut off all funds for any U.S. military operations in Southeast Asia, which led to the shameful American abandonment of Saigon, the death of millions in communist camps, and the consignment of an entire nation to a totalitarian dictatorship.

The Iranian Revolution and hostage crisis and the Soviet invasion of Afghanistan took further advantage of a weakened presidency under the stewardship of Jimmy Carter.

Similar restrictions have re-appeared in Judge Leon’s decision, which orders the end of the NSA’s collection program, and in his blue-ribbon commission, which wants to subject the NSA to new oversight procedures. 

Congress is considering unprecedented restrictions on targets, databases, and search methods.

It is not just in President Obama’s interests to avoid this fate.

It is also in the interests of both parties in Congress and of the nation. 

There are surely partisan differences to fight out over domestic policy, where the Constitution places Congress in the primary policymaking role and the president second. 

But no party benefits in the long run from a weakened executive in foreign affairs, as shown by the War of 1812, the Civil War, and even the isolationism between the World Wars. 

Partisans must resist the temptation to strike a blow against a vulnerable president, and instead support his ability to fulfill the Framers’ design: to protect the nation’s security with determination, vigor, speed, and secrecy. 

The Constitution expects no less.


John Yoo, is a law professor at the University of California at Berkeley. He served as an official in the Bush Justice Department from 2001-03 and is author most recently of "Taming Globalization: International Law, the U.S. Constitution, and the New World Order" (Oxford 2013).

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