All Intensive Purposes

This is the second part of a response (part one) to an argument by Virginia Patriot that "having authorized war, the Congress cannot then deprive the President of his authority to direct military operations, including operations that gather intelligence." He writes:

Article II of the Constitution makes the president commander in chief of the armed forces. If this clause means anything, it means that the president (and not Congress) directs military operations. . . .

When prosecuting wars, the president acts as commander in chief. Congress cannot diminish this authority, any more than it can make it a crime for him to veto a bill or pass laws requiring him to pardon convicted terrorists.

I.e., if FISA does purport to limit this power, it is unconstitutional.

The fundamental question here concerns the scope of the President's powers as "Commander in Chief of the Army and Navy of the United States” -- what those powers entail. (Famously and analogously, the First Amendment protects “the freedom of speech,” but not permit one to yell “Fire!” in a crowded theater – the hard questions are what that freedom of speech encompasses.)

Virginia Patriot’s approach to this question is a functional one. Intelligence gathering is an inherently military function:

Military campaigns and intelligence gathering go hand in hand; they are often indistinguishable. (Imagine D-Day without aerial reconnaissance or intercepts of German radio traffic!)

Most intelligence comes from human or electronic snooping abroad. What if the enemy threatens America? An enemy submarine - an intelligence gold mine - slips into New York harbor. May Congress, having authorized force, now require a warrant before (or after) the Navy intercepts the sub's communications, seizes the vessel or searches it for code books or other intelligence? Such overreaching would improperly strain the president's power, as commander in chief, to direct military operations. Congress, too, must follow the Constitution.

Presidential powers do not evaporate if U.S. residents aid the enemy. What if an American radios our hypothetical submarine? May Congress require the commander in chief to satisfy a court before listening? Hardly.

Nor must the president seek approval before monitoring communications between al-Qaida and suspected accomplices. A warrant-based "cops and robbers" approach is wholly out of place in time of war. FISA's backwards-looking civilian law enforcement model would hamper the president's ability to identify targets of pre-emptive action before they strike and undermine his ability to fight the war Congress authorized.

For starters, I submit that VP’s argument fails on its own terms. No one (that I know of) has suggested that the military needs to obtain FISA warrants before it engages in aerial reconnaissance or intercepts enemy radio traffic. Those look and smell like traditional military activities. But listening in on telephone calls made by American citizens? I can imagine D-Day without them. And it's not the armed forces who are tapping phone lines.

But, respectfully, Virginia Patriot is asking the wrong question, too. Here we have an argument about a constitutional provision dating from 1789, and the answer is to be found in hypothetical situations from World War II? Arguing that the Constitution should be construed so as to accommodate whatever policy needs seem most pressing -- let's just say that Edmund Burke is spinning in Beaconsfield Church.

Under Virginia Patriot’s approach to Article II, how are we to determine the scope of the President’s powers as commander in chief? For all the talk of enemy submarines and D-Day, the argument is that we are in a new kind of war, one that -- VP suggests -- might be confused for law enforcement. Virginia Patriot’s argument prompts the question: Are there any limits to the constitutional power that he is describing? I can think of a great many things that a president might feel a need to do in the name of national security, such as torture, emprisonment, seizure of property. The logic of the functionalist approach encompasses all these things, and more, on the commander in chief's ipse dixit.

Perhaps you think this is good policy. I don’t. But reasonable people will often disagree about policy. We have a constitution and theories of interpretation to try to keep constitutional debates from becoming policy debates.

Consider, then, an originalist principle. The Constitution was drafted with the lessons learned from the War of Independence, in which we revolted against King George III, a monarch whose power was hardly checked by Parliament. From these origins we trace a fundamental principle with which it is hard to square a unfettered Article II commander in chief, that of the separation of powers. As even the President’s defenders acknowledge, his assertion of power under Article II is a demand that we trust him with unchecked power. This is antithetical to our constitutional tradition, and it is anything but conservative.

We don't need to think ill of the President to think it's a bad idea to trust him (although you might think that the possibility that Hillary Clinton will be the next President would be enough to scare conservatives here). Consider this, from a recent profile of Bush aide Michael Gerson:

When I asked Gerson about the recent domestic-spying controversy, he replied, almost irritably, “These are the appropriate constitutional and necessary methods to defend American liberty.” He added, “The President views us as at war, and he’d much rather be on that side of things than have to apologize after an attack. I don’t want to write any more ‘days of national mourning’ speeches.”

I would expect this or any President to balance national-security needs and civil liberties in this way, but that does not make it the right balance. As Gerson's response suggests, the President will be more sensitive to some threats than others. Gerson is not going to write a speech mourning the loss of civil liberties. And a second-term President will not face the voters again, insulating him from a need to worry about what the public might think.

The Constitution not only has principles in it -- it has a text, too, and there's quite a bit there that informs this debate. For example, the Second, Third and Fourth Amendments tell us something about the founders’ concerns about the relationship between the citizens and their army. As good conservatives know, the Second Amendment embodies a concern that the standing army be checked by well-regulated militia. The Third Amendment reflects a desire to protect citizens’ houses from troops, in the most immediate and literal way. As does the Fourth Amendment, in a different manner. On its own, the Fourth Amendment reflects more of a concern with impeding the federal government’s gathering of information than any constitutional provision does in furthering it.

More to the point is Article I, which gives various powers to Congress. Lo and behold, many of them circumscribe the broad powers the President's friends are claiming for him under Article II:

The Congress shall have Power To . . . provide for the common Defense and general Welfare of the United States;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term that two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States . . .;

* * * * *

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Article I, Section 8.

Reading these provisions, I do not understand the claim that Congress has no business enacting FISA. If the President is the commander in chief, nevertheless it is Congress’s role “[t]o make Rules for the Government and Regulation of the land and naval forces.” Such rules must necessarily constrain the CIC’s discretion, and yet that is the constitutional scheme. Indeed, but not for congressional action, there would be no military at all, for it falls to Congress, not the President, “[t]o raise and support Armies” and “[t]o provide and maintain a Navy.” As I understand the Constitution, Congress simply could decline to fund the NSA, or those of its activities which are now at issue. Congress, not the President, appropriates the moneys that pay for domestic spying.

In fact, re-consider that most absurd-sounding hypothetical:

An enemy submarine - an intelligence gold mine - slips into New York harbor. May Congress, having authorized force, now require a warrant before (or after) the Navy intercepts the sub's communications, seizes the vessel or searches it for code books or other intelligence? Such overreaching would improperly restrain the president's power, as commander in chief, to direct military operations.

Actually, the Constitution says otherwise. It gives Congress the power to "make Rules concerning Captures on Land and Water."

Now, one can argue about whether provisions like this one, originally drafted in the context of eighteenth-century privateering, should be changed to fit the conflicts of the twenty-first century. If the President thinks that the Constitution, or FISA, needs to be revised for a new day, then that is the conversation we should be having.