The Power of the President

Ever since President Truman sent U.S. troops to fight in Korea in 1950, presidents have claimed broad wartime power to act without first seeking the approval of Congress. But they did so with the silence or implicit consent of lawmakers.

Senators will convene today to confront the fact that in combating terrorism, President Bush has gone a step further.

In the controversies over the use of torture, the detention of “enemy combatants” and wiretapping in the United States, he and his lawyers have maintained the commander in chief has an “inherent authority” to act regardless of the law.

That issue is the heart of the dispute between the White House and Congress over Bush’s order authorizing the National Security Agency to listen in on international phone calls coming from people who are suspected of being terrorists or of having ties to terrorists.

“If there are people inside our country who are talking with Al Qaeda, we want to know about it,” Bush said Tuesday in his State of the Union address.

Although virtually no one quarrels with the president’s goal of trying to detect terrorists who might be hiding in this country, many legal experts -- and even some Republicans in Congress -- doubt he has the authority to order wiretapping in the United States without a judicial warrant, as the law requires.

The Senate Judiciary Committee hearings will weigh the administration’s legal defense of the National Security Agency program. But the White House claims of expansive powers go beyond wiretaps.

After the Sept. 11 terrorist attacks, Bush’s lawyers set out a broad theory of presidential power that gave the commander in chief the right to override the law. Often the theory was spelled out in confidential legal memos prepared for the White House rather than in public pronouncements.

In 1994, Congress outlawed the use of torture by U.S. agents and made it a crime to “inflict severe physical or mental pain” on people held in U.S. custody. But in a Justice Department memo written for the White House in 2002, Bush’s lawyers said the law did not prevent the president from ordering the use of severe and painful measures against captured terrorists.

“In order to respect the president’s inherent authority to manage a military campaign against Al Qaeda and its allies, [the anti-torture law] must be construed as not applying to interrogations undertaken pursuant to his commander in chief authority,” Bush’s lawyers wrote. “Congress may no more regulate the president’s authority to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”

However, the Constitution gives Congress powers to set rules for prisoners.

Specifically, Article I says, “Congress shall have the power ... to make rules for the ... regulation of the land and naval forces,” as well as “rules concerning captures on land and water.” Article II says the president “shall take care that the laws be faithfully executed.”

The Supreme Court has rejected the notion that the president alone controls what happens during wartime.

When Democrat Truman seized the steel mills to keep them running during the Korean War, the high court -- with nine Democratic appointees -- ruled in 1952 that he had overstepped his power. Its opinion stressed that Congress, not the president, made the rules.

“The founders of this nation entrusted the lawmaking power to the Congress alone in both good times and bad times,” Justice Hugo Black wrote. “The president’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”

In 1971, Congress tried to make sure that no future president would follow the lead of Franklin D. Roosevelt, who during World War II ordered the military to imprison tens of thousands of Japanese Americans.

“No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress,” the 1971 law said.

Nonetheless, Bush’s lawyers maintained the president could order the military to arrest and hold Americans he deemed to be “enemy combatants.” In 2002, the military took custody of Jose Padilla, a New York-born Muslim who was arrested at Chicago’s O’Hare International Airport after a flight from Pakistan. Administration officials said he was plotting with Al Qaeda to set off a radioactive bomb.

But rather than charge him with treason or another crime, Bush’s lawyers said Padilla could be held indefinitely without charges, without a lawyer and without a hearing to consider his guilt.

“The capture and detention of enemy combatants during wartime falls within the president’s core constitutional powers as commander in chief,” Bush’s lawyers told a U.S. appeals court. “There is no basis to second-guess the president’s conclusion that Padilla is an enemy combatant.”

Last year, as Padilla’s lawyers were ready to appeal his case to the Supreme Court, the administration switched course and charged Padilla with the crime of conspiring with terrorists. He faces a trial in Miami.

This week’s hearings were triggered by the recent disclosure of the National Security Agency’s domestic wiretapping program.

Previously, the legal parameters for wiretapping had been spelled out by Congress and by the Supreme Court. The government could conduct “electronic surveillance” in this country if it first obtained a warrant from a judge. Outside U.S. borders, there were no such limits on the National Security Agency and its high-tech spying.

These rules had been set in the 1960s and 1970s, partly in response to reports that the FBI’s J. Edgar Hoover and the CIA had secretly spied on political dissidents, activists and celebrities.

In 1967, the Supreme Court ruled that wiretapping a phone is like invading a home. Applying the 4th Amendment and its ban on unreasonable searches, the court said police and federal agents must show a magistrate that they had “probable cause” to suspect criminal wrongdoing before they could tap a phone.

That case dealt with a criminal case, and presidents and their lawyers continued to argue that in matters of national security, the White House could order wiretapping without a warrant.

The Supreme Court unanimously rejected that view in 1972. A warrant from a “neutral and disinterested magistrate” must be obtained before a phone is tapped, the justices said again. “These 4th Amendment freedoms cannot properly be guaranteed if domestic security surveillance may be conducted solely with the discretion of the executive branch,” they said.

However, the court noted it was not ruling on “the activities of foreign powers or their agents” who may be operating in the United States. “Congress may wish to consider protective standards” to permit but regulate electronic surveillance of foreign agents, the justices said.

In response, President Carter signed the Foreign Intelligence Surveillance Act of 1978. It permitted the president and the attorney general to conduct “electronic surveillance” in the United States to spy on foreign agents or to track international terrorists if they obtained a warrant from a judge on a special court established for that purpose.

The law described the procedure as the “exclusive means” for authorizing such wiretaps and made it a crime to eavesdrop without a warrant. The Senate Judiciary Committee said the measure “puts to rest the notion that Congress recognizes an inherent presidential power to conduct such surveillance.”

That stood as the law for more than two decades.

After the Sept. 11 attacks, Congress and the administration agreed on changes in the Foreign Intelligence Surveillance Act to make it easier to track terrorists. One said the government could act quickly to intercept calls or computer messages and need not seek a warrant until 72 hours after the fact.

When a senator proposed making it easier to obtain warrants, an administration lawyer testified the change was not needed, in part because the Foreign Intelligence Surveillance Act was working effectively.

Behind the scenes, however, administration lawyers suggested they need not abide by the law in the first place.

In fall 2002, the administration submitted a legal brief to the special surveillance court. It declared the “president has inherent authority to conduct warrantless electronic surveillance to protect national security from foreign threats” and was not bound by the Foreign Intelligence Surveillance Act or its judges. “Given the enormous -- and unique -- importance of the president’s constitutional obligation to protect national security,” federal courts have no power “ to micromanage the executive branch,” Bush’s lawyers said.

Only a few high officials inside the administration knew the full story behind the assertion. In a classified order, the president had already authorized the National Security Agency to begin intercepting suspicious international calls without seeking a warrant.

Both the president and Air Force Gen. Michael V. Hayden, the former chief of the National Security Agency, described the surveillance as narrow and focused. His agents intercepted “only international calls and only those we have a reasonable basis to believe involve Al Qaeda or one of its affiliates,” Hayden said.

Two weeks ago, Atty. Gen. Alberto R. Gonzales sent Congress a 42-page legal justification for the wiretapping. It made three key points.

First, it argued that the president had “inherent constitutional authority to order warrantless foreign intelligence surveillance.” Second, Congress authorized expanded surveillance when it gave the president the power to “use all necessary and appropriate force” against the terrorists who planned the attacks on New York and the Pentagon. And third, it reasoned that if the Foreign Intelligence Surveillance Act required a warrant for all electronic surveillance, then it was unconstitutional because it interfered with presidential powers.

In response to the filing by Gonzales, 14 legal scholars and former government officials sent Congress a letter disputing the administration’s contentions. The “use of force” resolution cannot be read as authorizing “domestic electronic surveillance,” they said, nor does the Constitution give the president the power to ignore criminal laws.

They closed with a broader point about the rule of law.

“One of the crucial features of a constitutional democracy is that it is always open for the president -- or anyone else -- to seek to change the law,” they said. “But it is also beyond dispute that in such a democracy, the president cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.”