Next week, the Senate Judiciary Committee will hold hearings on the legality of a secret domestic surveillance program authorized by President Bush in 2002. Senators are set to examine the Attorney General on the administration's sweeping theory of its own power, by which the president can ignore acts of Congress when they don't comport with his sense of the country's national security needs. This is the same theory advanced in the 2002 “torture memo” drafted by U.S. Department of Justice lawyers as a way to avoid criminal laws banning torture. It is also the same theory behind the recent “statement” the president issued as he signed into law the McCain ban on cruel and degrading treatment -- while at the same time reserving power to conduct intelligence operations in the “war on terror” as he sees fit.
A bipartisan array of scholars and politicians -- including several former Bush administration lawyers who left the Justice Department during the president's first term -- have rejected this vision of presidential power as a matter of law. Since the Supreme Court ruled at the height of the Korean War that presidential power in wartime was limited -- the more Congress has said on the matter, the less the president could do of his own accord -- it has been settled in law that even the presidency must yield to specific congressional action. When it comes to intelligence gathering inside the United States, the use of torture, and, most recently, interrogations involving cruel, inhuman, or degrading treatment -- Congress has spoken with striking specificity. For the president to ignore these laws at his discretion turns the idea of separation of powers on its head.
Less well articulated is what such a view of presidential power -- one in which the executive regularly acts unilaterally, in secret, and despite the publicly expressed wishes of the elected members of Congress -- means for the policy of U.S. national security. The administration has contended in recent months that preserving the power to spy, detain, or “stress” detainees into talking is essential policy “flexibility” for the executive to have in the fight against terror. Here, a recent Justice Department white paper in defense of the president's power to disregard federal law points to the special executive-branch advantages identified by the constitutional framer Alexander Hamilton: only the executive can speak with a single voice as the “sole representative with foreign nations”; can quickly intercept enemy transmissions to gain intelligence; and can operate with secrecy sufficient to carry out tasks from spying to delicate negotiations. Secrecy, unity, and dispatch are the unique institutional skills of the executive branch that should elevate its security choices and expertise above all else.
Yet the years since September 11 -- in which a largely silent Congress stood watching a largely unconstrained executive -- have shattered executive claims of policy superiority in knowing how to fight and win a modern “war” against terrorism. According to the administration's own statistics, the problem of international terrorism is worse now than it was in 2001, with acts of terrorism in 2005 up 51 percent from the previous year, a total of 3,991 attacks worldwide. The former members of the 9-11 Commission issued a report card last year giving the administration failing grades on its efforts to improve homeland security, and noting among other things that concerns over U.S. treatment of detainees have made it “harder to build the diplomatic, political and military alliances necessary to fight the war on terror effectively.” Where the president has acted unilaterally and against the will of Congress -- in ignoring federal law and the uniformed military's own advice on the effects of coercive interrogation -- the security policy consequences have been particularly destructive. Terrorist organizations now feature Abu Ghraib and related abuses as prime recruiting tools. And according to an increasingly vocal cadre of defense and intelligence analysts, U.S. detention and interrogation operations to date have compromised our intelligence collection capacity by alienating communities who might otherwise provide information and support. We are not doing well. And the unlimited-power executive holds a lion's share of the blame.
Such a record of failure on the part of a “unitary” executive should not be surprising. What might have been 18th- and 19th-century advantages for the executive in war-fighting are of ambiguous benefit when it comes to combating the 21st-century enemy of “terrorism.” Take secrecy. While executive secrecy has always been and must remain an aspect of intelligence operations, the former 9-11 commissioners among many others have urged that the central problem with U.S. intelligence operations today is not a lack of secrecy, but too much. Information is overly compartmentalized, “stovepiped” to too few decision-makers, hidden by one executive agency from another and by one branch of government from another, and limited in its relevance and accuracy due to an absence of oversight and competing analyses. The current NSA flap is just the latest example of why more power and greater secrecy don't necessarily mean better security. As more than a dozen counterterrorism officials familiar with the NSA surveillance program told the New York Times, the flood of information the program produced was most notable for diverting agents from intelligence leads far more likely to bear fruit.
Likewise, the “unitary” voice that might matter were our enemy a single state -- a fact the administration is at endless pains to remind us is not the case -- is not at issue when it comes to fighting terrorists. On the contrary, there is strong consensus that terrorism writ large can only be defeated through a combination of measures, including international cooperation in counterterrorism operations and broad-based, international cultural and educational exchange. Beyond this, as former Chairman of the Joint Chiefs of Staff General Richard Myers (among others) has explained, fighting terrorism requires “all instruments of our national power,” political and economic, in addition to military and intelligence, means. Neither tactical relationships nor the war of ideas in the struggle against terrorism is much advanced by the U.S. president speaking on his own.
And while there is no question that the executive has and should have the power to repel imminent attacks -- to call up military aircraft during the attacks of 9-11, to investigate and take lawful measures to defend against immediate dangers -- the threat of terrorism is more chronic than acute. The vast majority of day-to-day decisions that government must make about fighting terrorism are not about with how to handle a “ticking bomb.” They are strategic decisions about how to develop and deploy an intelligence capability equal to understanding and accessing the plans of a diffuse and agile enemy. In this effort, the insights of Congress, of the private sector, and a multitude of intelligence and defense professionals are at least as -- and often more -- valuable than the executive's ability to make a decision quickly and alone.
The model of the “unitary” executive -- which this administration has taken far beyond anything Hamilton would have endorsed -- comes from a constitutional time and place that the administration has spent the past five years urging us to forget; a time when wars were usually foreign affairs, against a state, with uniformed armies and navies, and a battlefield whose boundaries were recognized by all. The administration is right; the threat of terrorism is different. And the government best suited to respond is not one where supreme power is concentrated in a lone executive branch. It is a government where information is appropriately shared, decisions thought through, and the benefits of collective wisdom are exploited. Is Congress the solution to all our security woes? Not likely. But it is clear that as a matter of counterterrorism policy, the unconstrained executive fails.
Deborah Pearlstein is a visiting scholar at the Woodrow Wilson School for Public and International Affairs at Princeton University and director of the U.S. Law and Security Program at Human Rights First (formerly the Lawyers Committee for Human Rights).
