Another National-Security Flip-Flop

The Obama Left has changed its mind about executive power.

Andrew C. McCarthy
Wednesday, January 05, 2011

No sooner did Victor Davis Hanson compile a prodigious list of national-security flip-flops by the Obama Left (posted on the Corner under the title “If We Say It Is, It Is . . . ”) than we learned the list would have to get longer. Keeping up with this administration’s reversals is a full-time job.

The New York Times reports that President Obama is considering the issuance of an executive signing statement in conjunction with his impending assent to the defense appropriations bill. Remember when the Law Profs Division of the Obama Left told us Bush signing statements were the death knell of our constitutional system?

In fact, as Times correspondent Charlie Savage concedes (you’ll find it if you stick around through the end of his report), then–Yale Law School dean Harold Koh joined his American Bar Association colleagues during those bad old Bush days in blasting signing statements as “contrary to the rule of law and our constitutional separation of powers.” You may know Dean Koh better from his current job: top lawyer in the Obama State Department. In any event, it seems that in the age of Obama, signing statements are one of the few things that are not a crisis. Savage grudgingly recounts that Obama has actually issued several signing statements already. The reporter is quick to qualify Obama signing statements as “relatively uncontroversial challenges” to congressional authority, by which he apparently means they were not upsetting to the Times.

This one, though, will be controversial even by the Gray Lady’s forgiving standards for this president. Mr. Obama is weighing whether to announce that his sweeping powers under Article II of the Constitution nullify Congress’s prohibition against transferring terrorist detainees from Gitmo to the U.S. for civilian trials. The president also objects, we’re told, to a congressional provision that would bar transfers of detainees to other countries absent a certification from the secretary of defense that the countries in question had met what Savage describes as “a strict set of security conditions.”

This is a truly remarkable development. The Lawyer Left went berserk over President Bush’s constitutionally rooted and historically tame assertions of executive power. Though the appeals court created by Congress to rule on surveillance matters had endorsed the principle that the president has inherent power — which Congress cannot vitiate — to conduct national-security surveillance, lefty lawyers screamed that the Bush NSA’s warrantless surveillance program was illegal, an inexcusable violation of Congress’s FISA statute. Judiciary Committee chairman John Conyers and several other House Democrats even suggested that Bush be impeached over it.

Lawyers including Eric Holder filed briefs on behalf of al-Qaeda terrorist Jose Padilla, objecting to Bush’s assertion of commander-in-chief authority to detain Padilla, a U.S. citizen, as an enemy combatant rather than give him a full civilian trial. (We haven’t heard much from now–Attorney General Holder on why it’s nevertheless constitutionally kosher for commanders in chief to assassinate an American citizen, as Obama has apparently authorized with respect to Anwar al-Awlaki.) Georgetown Law School professor Neal Katyal — now Obama’s acting solicitor general — convinced a sharply divided Supreme Court that the commander-in-chief could not order military-commission trials for terrorist war criminals because such presidentially authorized commissions purportedly violated a congressional statute (the Uniform Code of Military Justice), notwithstanding that presidents and military commanders had been using commission trials since the Revolutionary War.

Vice President Dick Cheney and his staff were the targets of ceaseless scorn for what was breathlessly claimed to be a Cheney agenda to restore presidential power to the zenith it had reached before Watergate. Books were written lamenting the Bush administration’s purported aversion to working with Congress. (Little, though, was said about Democratic leaders in Congress being briefed in real time about the CIA’s interrogation program, the detention camp at Gitmo, and the NSA program.)

Now, though, the president is a Democrat and Republicans are resurgent in Congress. Suddenly, executive power is cool and congressional statutes no longer reflect “the rule of law.” Statutes have become a partisan nuisance addling a really smart, progressive commander-in-chief, not to mention encroaching on the inviolable, irreducible powers the Framers wisely vested in him and him alone. (Did somebody say, “unitary executive”? John Yoo, call your office!)

As it happens, President Obama is right about Congress’s attempt to hamper his ability to transfer war prisoners to foreign countries. The presidency was established largely to conduct war and foreign relations. Presidential authority in the latter case is supreme. As the Supreme Court put it in United States v. Curtiss-Wright Export (1936), the “delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations [is] a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.” Congress may be able to cut off funding for the president’s foreign-affairs initiatives; it may not dictate how the president conducts foreign affairs — that is his job.

As I argued last week, however, transferring prisoners into the United Statesfor civilian trials is an entirely different matter. It is Congress, not the executive branch, that sets the terms for entry of non-Americans into the United States. The fact that these non-Americans are war prisoners does not alter that fact or turn the transfer (as opposed to the detention) into a commander-in-chief exercise.

Moreover, Congress is supreme when it comes to civilian trials. The president would have no prosecutorial power unless Congress enacted laws creating federal crimes, established lower federal courts, and allowed the president resources for federal prosecutions — the Framers assumed prosecution would be a state function, and both the attorney general and the Justice Department are creatures of statute, not of the Constitution.

The president has no more power to dictate to Congress whether and where civilian trials will take place than he does to dictate to the courts the rulings the judges are to make in such cases. The executive branch has considerable authority in the civilian justice system. Unlike in the arena of foreign affairs, however, prosecutorial power must be exercised strictly within parameters set by Congress.

President Obama should have been able unilaterally to order military-commission trials for enemy combatants and to prescribe the rules under which those trials would proceed. Alas, the courts have ruled that the presidency has lost those powers; for that, Mr. Obama can thank the lawyers now working for him. Presidents, though, have never had the constitutional power unilaterally to decide which aliens get to enter the United States, nor the power to prescribe crimes and vest courts with the jurisdiction to try them. When President Clinton wanted to try more terrorists in civilian courts in the 1990s, he needed to convince Congress to overhaul counterterrorism law, create new crimes that fit the behavior involved, and endow courts with jurisdiction to try them — and Congress obliged him in 1996.

As the Left was fond of saying up until two Januaries ago, “the president doesn’t get a blank check.” Even in wartime, he needs the cooperation of Congress. Had President Obama asked, President Bush or Vice President Cheney would surely have explained that to him.