The Holder Hearings — Part I
The recently departed Bush Administration took a notoriously broad and aggressive view of presidential or executive authority. President Bush and his lawyers thought that the President can disregard statutory prohibitions if they interfere with the President’s opinion of what actions would serve the national defense. So Congress has passed laws making surveillance authorized by warrants from a federal court the only way to eavesdrop on terrorist conversations inside the United States, but the President thinks the warrant procedures are too restrictive? No problem – the President can ignore the statute, because the Constitution makes him the commander-in-chief and gives him the authority to perform that job effectively. The argument is laid out on pages 28 to 36 of a White Paper issued by the Department of Justice shortly after the New York Times ran a story revealing the secret warrantless surveillance program that the National Security Agency had been running after September 11. This authority of the President to override statutes showed up in many of the signing statements that President Bush issued concurrently with signing pieces of legislation, infuriating members of Congress and often leaving people in the dark about when the President would follow the law or choose to disregard it.
There is now a great expectation that the incoming Obama Administration will take a noticeably different view of presidential authority. During the presidential campaign he signaled that he intends to obey the Constitution and the rule of law. And already he has begun rolling back some of the more controversial actions President Bush took as commander-in-chief, notably including, President Obama issued an executive order to roll back controversial commander-in-chief actions of President Bush, notably including ordering a stop to the military commission trials of Guantanamo detainees so that the people being held there can each be evaluated individually to decide whether a trail should proceed in a regular federal court or a regular military court martial.
It would be startling if there was not a significant shift on questions of presidential authority under President Obama – but at the same time one ought to be cautious in drawing firm conclusions regarding exactly where the Administration now stands on each of the many different aspects of executive authority. While it is often the case that actions speak louder than words, executive authority is situation in which actions can be ambiguous and words incredibly slippery. An action like closing down military commissions could mean that the President thinks he lacks the unilateral authority to create them or it could mean he has decided not to use military commissions because of how they have damaged our international reputation, even though he thinks he has the unilateral authority to use them if he wished. Decisions not to exercise authority always are ambivalent in this way, because failures to act are equally consistent with someone lacking the authority to act and also with someone having the authority and just declining to exercise it. (With respect to the military commissions themselves, of course, this question has become moot because five years after President Bush established them unilaterally, Congress enacted the Military Commissions Act giving them a statutory foundation.)
So in figuring out the Obama Administration’s views on executive authority, actions will be ambiguous and recourse will have to be made to what the Administration says about that authority. But words that frequently pop up in discussions of executive authority are slippery. Take the ideas of “obeying the rule of law” or “being bound by the Constitution.” When a President says he will obey the rule of law and be bound by the Constitution, he is actually telling you nothing about what unilateral authority he thinks he possesses. Appeals to the rule of law are slippery because the Constitution is just as much a law as is a statute passed by Congress. In fact, the Constitution is an even bigger law: when a statute is inconsistent with the Constitution, “obeying the rule of law” will mean following the Constitution and not following the statute. Therefore, if the Constitution does bestow authority on the president, say in his role as Commander in Chief, to act in certain ways even if Congress has enacted a law prohibiting that action, a President overriding statutory law would nonetheless be following the rule of law. And a President who sincerely believes that the Constitution contains such a presidential override authority can in good faith promise to obey the rule of law and be bound by the Constitution while intending to ignore statutes when he considers it appropriate.
A second slippery feature of language here is that Presidents or their spokespeople almost never say never when asked to state firmly if a president absolutely lacks the power to disregard a statute. Once again, the Constitution is a law, and it may well be that a President’s duty to ensure that the laws are faithfully executed encompasses the responsibility to ensure that the executive branch of government does not execute an unconstitutional law. (This is a complicated subject. The incoming head of the Office of Legal Counsel and her principal deputy have each written extensively about it. Neither one of them says that a President can never disregard a federal statute.) To accommodate the possibility that there may be justifiable occasions for not following a law, statements of executive branch officials often contain weasel words that detract from any categorical force the statement might have. If the weasel words are not carefully defined – and their slippery nature is why we call them weasel words – then it is not clear whether a president will later drive a truck through them or thread a needle.
Slippery language was on full display during the confirmation hearings for Attorney General Eric Holder before the Senate Judiciary Committee on January 15, 2009, and available here. Questions about executive authority came up time and time again during the Holder hearings. Occasionally – but only occasionally – Mr. Holder gave an answer that actually revealed something about his understanding of the scope of executive authority. Much more common, however, were statements that may have been soothing to ears eager to hear that the Obama Administration would take a more limited view of executive authority — but which actually said nothing about the scope of executive authority. Here is a sampling of some of the exchanges:
LEAHY: Do you agree with me that water boarding is torture and illegal?
HOLDER: . . . I agree with you, Mr. Chairman, water boarding is torture.
LEAHY: Do you believe that other world leaders would have the authority to authorize the torture of United States citizens if they deemed it necessary for their national security?
HOLDER: No, they would not. It would violate the international obligations that, I think, all civilized nations have agreed to at the Geneva Conventions.
LEAHY: Do you believe that the president of the United States has authority to exercise a commander-in-chief override and immunize acts of torture? I ask that because we did not get a satisfactory answer from Former Attorney General Gonzales on that.
HOLDER: Mr. Chairman, no one is above the law.
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KOHL: Will you put an end to the use of abusive interrogation techniques? What is your description of what they are? What can we hope to expect from you?
HOLDER: Our Justice Department will adhere to the values that have made this nation great. It is the intention of the president- elect, it is my intention, to make sure that we have interrogation techniques that are consistent with who we are as Americans so that we don’t do things that will serve as a recruiting tool for people who are our enemies.
The decisions that were made by the prior administration were difficult ones. It is an easy thing in some ways to look and in hindsight be critical of the decisions that they made.
And yet, having said that, the president-elect and I are, I think, both worried, disturbed, by what we have seen, what we’ve heard. The pledge that he has made and that I will make is that we will make sure that the interrogation techniques that are sanctioned by the Justice Department are consistent with our treaty obligations, the Geneva Treaty obligations that we have, and will be effective at the same time.
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HATCH: Now, in a speech last year, you stated, “I never thought I would see that a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens. This disrespect for the law is not only wrong, it is destructive in our struggle against terrorism.”
Now, do you believe that the president has — whoever is president of the United States — has inherent authority under Article 2 of the Constitution to engage in warrantless foreign intelligence surveillance? Or, in your opinion, does FISA trump Article 2?
HOLDER: Senator, no one is above the law. The president has the constitutional obligation to make sure that the laws are faithfully executed. In rare instances where Congress passes a law that is obviously unconstitutional — if, for instance, Congress were to pass a law that the secretary of defense should be the commander-in-chief, or that women would not have the right to vote — I think that the president in that instance would have the ability to act contrary to a congressional dictate.
But the president has his power at its maximum, at its zenith, when he acts consistent with congressional direction. Now, when it comes to the FISA statute, there’s an exclusivity provision in the FISA Act that essentially says, as Congress has expressed, this is the exclusive way in which that kind of surveillance should occur. My speech was taking the administration to task for not following the dictates of FISA.
HATCH: . . . But back to our prior point, is the president’s inherent authority under the Constitution — can that be limited by a statute?
HOLDER: The president’s inherent authority. Well . . .
HOLDER: . . . it’s . . .
HATCH: I mean, you’re relying on the statute as though that’s binding on Article 2 of the Constitution.
HOLDER: Well, the president obviously has powers under the Constitution that cannot be infringed by the legislative branch. That’s what I was saying earlier.
There are powers that the president has, and that have been delegated to him that he has. And in the absence — Congress does not have the ability to say, with regard to those powers, you cannot exercise them.
There’s always the tension in trying to decide where that balance is struck. And I think we see the best result when we see Congress interacting with the president, the executive branch interacting with the legislative branch, and coming up with solutions . . .
HATCH: That still doesn’t negate the fact that the president may have inherent powers under Article 2 that eve a statute cannot vary.
HOLDER: Well, sure. The . . .
HATCH: Do you agree with that statement?
HOLDER: Yes, there are certain things that the president has the constitutional right, authority to do, that the legislative branch cannot impinge upon.
* * *
HATCH: Now, the FISA Amendments Act of 2008 included important civil liability protections for those providers who assisted the government with the Terrorist Surveillance Program in the aftermath of the September 11th terrorist attacks.
Now, according to this act, in order for the liability protections to apply, the attorney general must first file a certification with the court. Now, last fall, Attorney General Mukasey filed the appropriate certifications with the court. You’re aware of that. OK. Now, do you believe that those private partners who assisted the government should be given civil liability protection?
HOLDER: Well, that is now contained in a statute. The duty of the Justice Department is to defend statutes that have been passed by Congress, unless there is some very compelling reason not to.
* * *
FEINGOLD: First, what is your view of the president’s constitutional authority to authorize violation of the criminal law, duly enact the statutes that may have been on the books for many years when acting as commander-in-chief?
HOLDER: The president, as I’ve said, is not above the law, has a constitutional obligation to follow the law and execute the laws that this Congress passes. If you look at the Steel Seizure concurrence of Justice Jackson that, I think, sets out in really wonderful form the power that the president has and where the president’s power is strongest and where it is weakest.
It is weakest in Category 3 where Congress has indicated something contrary to what the president wants to do. That is where Justice Jackson says the president’s power is at its lowest level. And I think – I’m not a constitutional scholar — but I think that there has never been a president who’s been upheld when he’s tried to act in Category 3. I think, but I’m not sure.
* * *
FEINGOLD: You discussed with Senator Hatch whether or not there was some kind of independent, inherent power of the president. Is there anything in the FISA statute that makes you believe that the president has the ability under some other inherent power to disregard the FISA statute?
HOLDER: No, I do not see that in the FISA statute.
* * *
KYL: You were deputy attorney general during the Clinton administration when the Department of Justice authorized the warrantless search of Aldred Ames, the spy, who is a US citizen, of course. This was in 1993.
Were you involved in that authorization by any means or by your recollection?
HOLDER: I don’t remember.
KYL: Do you have any reason to believe that it was unconstitutional?
KYL: Even though it was warrantless?
HOLDER: No. I was talking to a member of my staff assigned and as I understand it, as I understand what he relayed to me, if there is a national security exception not covered by FISA that would have made that search appropriate, legal, I think.
Not everything that Mr. Holder said during his confirmation hearings was as slippery as these remarks. We will discuss these important exchanges in a subsequent post.
Post contributed to by Steven McIntyre