Jack Goldsmith's book, The Terror Presidency, is getting an enormous amount of coverage, including a lengthy article by Jeffrey Rosen for the NYT Magazine. My friend, international law expert Tony Arend comments:
One of the great problems of the past has been that both the Executive and the Legislative branches have had a tendency to engage in what might be called "line-drawing exercises" when it comes to certain questions of constitutional power. The Bush Administration has been the master of this, making assertion after assertion about the exclusive powers of the commander-in-chief and admiting of no role for Congress in those areas. But Congress has also engaged in such line-drawing activities in the past-- the War Powers Resolution would be one of the prime examples. In that Resolution, Congress boldly asserted that
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. (emphasis added)
It is, of course, interesting to note that this provision of the War Powers Resolution does not seem to have been taken very seriously by either Branch--perhaps because of its extremism.
While there will be times when courts must decide the precise allocation of powers between the Branches, in many cases relating to foreign affairs and national security, it makes more sense to avoid line-drawing exercises that set up confrontations. More often than not, political accommodation makes more sense. Congress and the President can still have their understandings of the ultimate allocations of power, but they can bracket those claims and negotiate an approach to addressing certain concrete problems. I believe that the original Foreign Intelligence Surveillance Act represented this type of political accommodation. The President did not give up his claims to be able to conduct surveillance without a warrant in cases of a foreign power or agent, but rather the President and Congress agreed to bracket that claim and establish a functioning framework so that the ultimate question of presidential power would not need to be addressed.
We can only hope that in the next administration, the President and Congress will have the wisdom to engage in a political accommodation approach more often than in the past.
