Dennis Cook/AP Images

Senate Judiciary Committee members Orrin Hatch, Arlen Specter, and Patrick Leahy at a hearing on the legal rights of detainees and enemy combatants, Washington, D.C., July 11, 2006

In the seven and a half years since September 11, the United States has witnessed one of the greatest expansions of executive authority in its history, at the expense of the constitutionally mandated separation of powers. President Obama, as only the third sitting senator to be elected president in American history, and the first since John F. Kennedy, may be more likely to respect the separation of powers than President Bush was. But rather than put my faith in any president to restrain the executive branch, I intend to take several concrete steps, which I hope the new president will support.

First, I intend to introduce legislation that will mandate Supreme Court review of lower court decisions in suits brought by the ACLU and others that challenge the constitutionality of the warrantless wiretapping program authorized by President Bush after September 11. While the Supreme Court generally exercises discretion on whether it will review a case, there are precedents for Congress to direct Supreme Court review on constitutional issues—including the statutes forbidding flag burning and requiring Congress to abide by federal employment laws—and I will follow those.

Second, I will reintroduce legislation to keep the courts open to suits filed against several major telephone companies that allegedly facilitated the Bush administration’s warrantless wiretapping program. Although Congress granted immunity to the telephone companies in July 2008, this issue may yet be successfully revisited since the courts have not yet ruled on the legality of the immunity provision. My legislation would substitute the government as defendant in place of the telephone companies. This would allow the cases to go forward, with the government footing the bill for any damages awarded.

Further, I will reintroduce my legislation from 2006 and 2007 (the “Presidential Signing Statements Act”) to prohibit courts from relying on, or deferring to, presidential signing statements when determining the meaning of any Act of Congress. These statements, sometimes issued when the president signs a bill into law, have too often been used to undermine congressional intent. Earlier versions of my legislation went nowhere because of the obvious impossibility of obtaining two-thirds majorities in each house to override an expected veto by President Bush. Nevertheless, in the new Congress, my legislation has a better chance of mustering a majority vote and being signed into law by President Obama.

To understand why these steps are so important, one must appreciate an imbalance in our “checks and balances” that has become increasingly evident in recent years. I witnessed firsthand, during many of the battles over administration policy since September 11, how difficult it can be for Congress and the courts to rally their members against an overzealous executive.


The Terrorist Surveillance Program—Act I

As chairman of the Senate Judiciary Committee from 2005 to 2007, I led the effort to reauthorize and improve the 2001 USA PATRIOT Act, which was originally set to expire at the end of 2005. Indeed, after intensive bipartisan negotiations, the Judiciary Committee succeeded—to the surprise of most observers—in approving a revised bill by unanimous vote. The full Senate then approved the bill by unanimous consent, but the conference report negotiated with the House of Representatives faced stiffer opposition. Nevertheless, after days of floor debate, I awoke on December 16, 2005, fully expecting to finish Senate action on the long-delayed reauthorization.

So, I was startled to read the lead story in The New York Times that morning, titled “Bush Lets US Spy on Callers Without Courts,” which revealed that our intelligence agencies had been engaged in warrantless wiretapping since shortly after September 11, in clear violation of the Foreign Intelligence Surveillance Act (FISA) of 1978.1 The news caused the Senate to delay passage of the Patriot Act reauthorization for months. Senator Charles Schumer expressed the sentiments of many:

I went to bed last night unsure of how to vote on this legislation…. Today’s revelation that the Government listened in on thousands of phone conversations without getting a warrant is shocking and has greatly influenced my vote.2

More importantly, the disclosure in the Times launched a fierce debate about the extent of presidential authority in the war on terror that has yet to be fully resolved.

When Congress reconvened in January 2006, I held multiple hearings into the program the Times revealed, later called the Terrorist Surveillance Program. As acknowledged by President Bush, this highly classified program, launched in the weeks after September 11, purported to authorize the National Security Agency to intercept phone calls between terror suspects overseas and persons inside the United States. Critics like me argued that the President’s program violated FISA. After all, the law declared the procedures set up by FISA to be the “exclusive means” by which such surveillance of telephone calls and other communications could be conducted. FISA also made criminal all domestic electronic surveillance designed to obtain foreign intelligence “except as authorized by statute.” Although the law defined limited exceptions in emergencies, reports in the press made it clear that none of them applied to the warrantless wiretapping that was done in the Terrorist Surveillance Program.


I recognized that, as administration supporters argued, the President might have inherent power to disregard FISA and to conduct unfettered foreign intelligence surveillance under Article II of the Constitution, the section that defines his authority as commander in chief. I was not, however, sympathetic to the administration’s further argument that Congress had implicitly authorized the President to carry out programs such as the Terrorist Surveillance Program when it authorized the use of military force against terrorists in September 2001.

I was also convinced that President Bush’s failure to notify Congress of the secret program violated provisions of the National Security Act of 1947. That statute requires the president to “ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States.” But the administration informed only eight legislators of the Terrorist Surveillance Program: the chairman and ranking members of the Senate and House intelligence committees, and the two top leaders in the majority and minority of both houses, leaving out both me and Senator Patrick Leahy as chair and ranking member of the Judiciary Committee, despite the fact that when FISA was enacted in 1978, it went through both the Intelligence and Judiciary Committees. While the National Security Act of 1947 explicitly permits notice to this limited “Gang of 8” for certain covert operations—such as efforts to influence foreign politics without disclosing the US role—the Terrorist Surveillance Program did not fit this exception.3

Indeed, those notified were very uneasy about the arrangement. Senator Jay Rockefeller, then ranking member on the Intelligence Committee, sent a secret handwritten letter to Vice President Dick Cheney saying that the administration’s surveillance activities “raised profound oversight issues” on which, owing to the arrangement, Rockefeller could not “consult staff or counsel.” Once the story broke, Representative Jane Harman, who as ranking member of the House Intelligence Committee was another “Gang of 8” member, informed President Bush that she believed “the practice of briefing only certain Members of the intelligence committees violates the specific requirements of the National Security Act of 1947.”

I raised this issue in a January 24, 2006, letter sent to Attorney General Alberto Gonzales in advance of the first Judiciary Committee hearing on the Terrorist Surveillance Program.4 Gonzales replied:

It has for decades been the practice of both Democratic and Republican administrations to inform only the Chair and Ranking Members of the intelligence committees about certain exceptionally sensitive matters.

The attorney general added that, according to the Congressional Research Service, the leaders of the intelligence committees had acquiesced in this practice. In my view, Gonzales’s argument could appeal only to those ignorant of the ways that the executive branch has, in practice, dealt with the intelligence committees. Administrations—of both parties—have sometimes told the chair and ranking member that they have important information to disclose, but insisted that they will reveal this information only to some group within the committee and the top congressional leadership, such as the “Gang of 8.” In many cases, the offer is accepted as the only way of getting the information—at least in a timely manner.

To the extent that the administration relied on such precedents to justify notifying only the “Gang of 8,” it should have informed me and Senator Leahy as well. Indeed, administration officials briefed both of us on the Terrorist Surveillance Program when they later sought comprehensive FISA reform. It is quite glaring, then, that they neglected to brief us in 2005, even as we were considering reauthorization of the Patriot Act, which was central to the administration’s counterterrorism efforts.

In the spring of 2006, new allegations about the government’s surveillance activities surfaced—not at congressional hearings, but again through leaks to the press. On May 11, 2006, USA Today reported that the National Security Agency had been “secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth.”5 Although the records reportedly included only data like telephone numbers, rather than the contents of calls, the revelations stirred new controversy.

One month later, on June 22, the Chicago Sun-Times reported that AT&T had changed its privacy policy to make customer data “a business record the company owns,” one that “can be disclosed to [the] government….”6 That very day, the Judiciary Committee’s Antitrust Subcommittee was holding an unrelated hearing on the proposed merger of AT&T and BellSouth, featuring the firms’ respective CEOs, Edward Whitacre Jr. and Duane Ackerman. I could not let the presence of these CEOs pass without confronting them on the surveillance program.


I asked Mr. Whitacre whether his company provided information to the federal government. He kept repeating that they “follow the law”7 —a comment that I told him was “contemptuous of this Committee,” because I was asking a factual question and he was offering a legal conclusion.

In truth, the matter merited its own hearing, but my efforts to hold one were thwarted by Vice President Cheney. Soon after the story broke, I announced my intention to schedule a hearing with the CEOs of the named carriers. I planned to either subpoena the companies or arrange a hearing closed to the public, which the telephone companies had agreed to attend without receiving a subpoena. Vice President Cheney went behind my back to persuade all of the other Republicans on the committee not to support the subpoena and to boycott the session I had called to discuss a possible private hearing. In response, I wrote the Vice President:

I was surprised, to say the least, that you sought to influence, really determine, the action of the Committee without calling me first, or at least calling me at some point.

I added:

If an accommodation cannot be reached with the administration, the Judiciary Committee will consider confronting the issue with subpoenas and enforcement.


Charles Dharapak/AP Images

President George W. Bush with Attorney General Alberto Gonzales, Homeland Security Secretary Michael Chertoff, and Maryland Governor Robert Ehrlich during a tour of security procedures at the Port of Baltimore, July 20, 2005

Someone in Cheney’s office must have been up all night, because I had a reply by mid-morning the next day. The White House, he said, was willing to negotiate in good faith. Extensive discussions culminated with a compromise bill and a July 11, 2006, meeting with President Bush in the Oval Office. The President agreed to submit the surveillance program to judicial review, but was insistent that the Senate not alter the agreed-upon terms.

My bill of 2006 to expand and revise FISA gave jurisdiction to the Foreign Intelligence Surveillance Court (the Intelligence Court)—set up by the original FISA law to rule on surveillance requests by federal agencies—to review the legality of the Terrorist Surveillance Program. Determining the constitutionality of the program would turn upon submissions to the Intelligence Court by the attorney general about its function and procedures, with particular attention to safeguards to ensure that the Terrorist Surveillance Program targeted suspected terrorists and not innocent Americans. The bill further required the attorney general to inform the members of the House and Senate intelligence committees of all surveillance programs and created a new criminal offense for misuse of intercepted information. In return, the government was given additional flexibility with respect to the issuance and duration of emergency warrants. And in a nod to the administration, the bill also acknowledged that the president, as commander in chief, retains certain authority inherent in Article II of the Constitution, although it left decisions about the scope of that authority to the courts.

Some complained that I had “sold out” in making this deal.8 These critics fail to appreciate the disadvantage Congress faces in resisting expansions of executive power. The Terrorist Surveillance Program was put into effect when President Bush signed a secret order in 2001. He did not need to hold any hearings or convince any colleagues. Vice President Cheney could rely on the fractious nature of the Senate, and the great influence of the executive, to easily kill the prospects for my planned subpoenas of the telephone companies. The administration’s damage control, like the initial action, was swift and unilateral. By contrast, on the legislative side, we could not begin to act until we established a factual record through a series of hearings and secured consensus on a path forward.

Ultimately, the Judiciary Committee approved my FISA reform bill on September 13, 2006, but in contrast to the bipartisan vote on the Patriot Act reauthorization a year earlier, there was a 10–8 party line vote, since Democrats appeared to be in no hurry for compromise. A final vote on the Senate floor was never taken, largely because the House had settled on a different approach to the Terrorist Surveillance Program that did not authorize court review of the program. Once again, the inherent constraints on the bicameral legislative branch served to benefit the executive, as the President’s surveillance program continued unabated throughout our internal debates.

The courts fared no better at reining in the Terrorist Surveillance Program. In August 2006, Judge Anna Diggs Taylor of the US District Court for the Eastern District of Michigan issued an opinion in ACLU v. NSA, finding the program unconstitutional. Almost a year later, in July 2007, the US Court of Appeals for the 6th Circuit overturned her decision. On a 2–1 vote, it declined to rule on the legality of the program, finding that the plaintiffs lacked standing to bring the suit. The Supreme Court then declined to hear the case, even though the law about standing has enough flexibility for the Court to at least review the case. My bill to mandate Supreme Court review of this and other cases therefore seems all the more necessary to resolve the question.


Shortcomings of the Legislative and Judicial Branches as Checks on Executive Power

The courts, including the Supreme Court, have admittedly been more effective than Congress in restraining executive excesses, but both have been too slow. This failure is exemplified by the judicial and legislative efforts to address the administration’s treatment of detainees in the war on terror.

In Hamdi v. Rumsfeld, decided on June 28, 2004, nearly three years after September 11, the Supreme Court ruled that a United States citizen being held as an enemy combatant must be given an opportunity to contest the factual basis for his detention before a neutral magistrate. In a stern rebuke of executive overreaching, Justice Sandra Day O’Connor’s opinion declared, “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” The same day, the Court held in Rasul v. Bush that detainees at Guantánamo Bay were entitled to challenge their detention by filing habeas corpus petitions—the time-honored legal action used to contest the basis for government confinement. Two years later, on June 29, 2006, the Court announced in Hamdan v. Rumsfeld that the president could not conduct military commission trials under procedures that had not been authorized by Congress and that failed to satisfy the obligations of the Geneva Conventions’ Common Article III and the Uniform Code of Military Justice.

Instead of fully accepting these decisions, however, Congress responded with the Detainee Treatment Act and the Military Commissions Act of 2006, both of which eliminated detainees’ right to habeas corpus review on grounds that foreign terrorist suspects did not have the same rights as others in US custody.

During debate on the Military Commissions Act, I offered an amendment that would have guaranteed habeas corpus for detainees. In the face of sharp criticism from my own party, I argued that I was not speaking “in favor of enemy combatants.” Rather, I was “trying to establish…a course of judicial procedure” to determine whether the accused were in fact enemy combatants. I pointed out that my fight to preserve habeas rights was, in essence, a struggle to defend “the jurisdiction of the federal courts to maintain the rule of law.” I concluded with a plea for the Senate not to deny “the habeas corpus right which would take us back some 900 years and deny the fundamental principle of the Magna Charta imposed on King John at Runnymede.” Despite these entreaties, my amendment narrowly lost on a 48–51 vote.

I had lost the battle, but was not prepared to surrender. On January 18, 2007, Attorney General Gonzales testified before the Judiciary Committee and argued that proposals to restore habeas corpus, such as a bill Senator Leahy and I had introduced, were “ill-advised and frankly defy common sense.” I was astounded at his claim that “there is no express grant of habeas in the Constitution.” I asked him:

The constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there is an invasion or rebellion?

He replied,

The constitution does not say every individual in the United States or every citizen is hereby granted or assured the right to habeas…. It simply says the right of habeas corpus shall not be suspended.

I protested, “You may be treading on your interdiction and violating common sense, Mr. Attorney General.”

That September, I made a second attempt to restore habeas corpus jurisdiction with an amendment to the Defense Department’s authorization bill. This time, a majority of senators voted for it, including seven Republicans. Unfortunately, the 56–43 majority was insufficient because, in the face of a filibuster threat, Senate procedure required sixty votes to pass. Ironically, a procedure intended to protect Senate minorities had become a shield for the executive branch.

Thus, yet again, it was left to the Supreme Court to beat back the encroachment of executive power, which it finally did on June 12, 2008. In Boumediene v. Bush, the Court held that detainees held at Guantánamo Bay “are entitled to the privilege of habeas corpus to challenge the legality of their detention.” The Court said that the Combatant Status Review Tribunals established by the Defense Department in 2004, following the Hamdi and Rasul decisions, and the limited procedural review permitted before the D.C. Circuit were not an adequate and effective substitute for habeas corpus. Because the administration had failed to provide an adequate substitute for habeas corpus, the Court held that the Military Commissions Act had effected “an unconstitutional suspension of the writ.”

As satisfying as it was to be vindicated, I was frustrated that Congress had left the task of reining in the executive to slow-paced and incomplete judicial review. While the Boumediene decision ensured habeas rights for detainees, it took seven years; and even then the Court almost failed to take on the case. All along, the Court’s rulings were piecemeal and avoided taking strong stands on controversial constitutional questions. The result was a protracted process that delayed justice for detainees and left important areas of constitutional law murky.

Indeed, the Supreme Court actually denied Boumediene’s initial petition for review on April 2, 2007. Then, on June 29, in a highly unusual move, the Court reconsidered and agreed to hear the case. The justices gave no reason for the reversal, but some speculate that they were moved by intervening disclosures concerning the military commissions. In particular, a military officer and lawyer who had been involved in overseeing the tribunals said that the process was flawed and that prosecutors had been pressured to label detainees as enemy combatants.

As much time as it took in these cases, at least the Supreme Court, in 2008, eventually ruled on the merits in Boumediene. The same cannot be said for Supreme Court review, or even substantive appellate review, of President Bush’s warrantless wiretapping program. Thus far, only individual judges in the district courts of Michigan and California have been willing to take a strong stand on the Terrorist Surveillance Program.

Like many in the legislature, the courts are reluctant to act. They do not want the responsibility, perhaps because of a longstanding reluctance on the part of the Supreme Court to challenge the executive in military policies.9 Only after significant time has passed, and it is relatively safe, do they finally consider such issues on the merits. I have proposed legislation to require expedited review of certain important cases, including the challenges by civil liberties organizations and other plaintiffs to the Terrorist Surveillance Program, and I will do so again in the new Congress.


Signing Statements

Even where Congress manages to negotiate its internal checks and to act decisively against expansions of executive power, presidents have used signing statements that override the legislative language and defy congressional intent.10 There was an explosion in the use of signing statements during the Bush administration. TheBoston Globe reported in 2006 that President Bush “has used signing statements to claim the authority to disobey more than 750 statutes—more laws than all previous presidents combined.”11

Two prominent examples make the point. The final version of the bill to reauthorize the Patriot Act featured a carefully crafted compromise, which was necessary to secure its passage in 2006. Among other things, it included several oversight provisions designed to ensure that the FBI did not abuse special terrorism-related powers permitting it to make secret demands for business records. President Bush signed the measure into law, only to enter a signing statement insisting that he could withhold from Congress any information required by the oversight provisions if he decided that disclosure would “impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.”

The second example arose in 2005. Congress overwhelmingly passed Senator John McCain’s amendment to ban all US personnel from inflicting “cruel, inhuman or degrading” treatment on any prisoner held by the United States. There was no ambiguity in Congress’s intent; in fact, the Senate approved the proposal 90–9. However, after signing the bill into law, the President quietly issued a signing statement asserting that his administration would construe it

in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.

Many understood this signing statement to undermine the legislation. In a January 4, 2006, article titled “Bush Could Bypass New Torture Ban: Waiver Right Is Reserved,” TheBoston Globe cited an anonymous “senior administration official,” according to whom “the president intended to reserve the right to use harsher methods in special situations involving national security.”12

These signing statements are outrageous, intruding on the Constitution’s delegation of “all legislative powers” to Congress. The legislation I introduced in 2006 would have given Congress standing to challenge the constitutionality of signing statements, but it has until now failed to muster the veto-proof majority it would surely require. The executive branch operates free of such internal dissent. Although John McCain promised to drop signing statements altogether, Barack Obama, while deploring Bush’s practice, said during the campaign that “no one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives.”13 Here again, the president does not need to convince any colleagues to issue a signing statement, he needs only put pen to paper. Indeed, two days after criticizing President Bush’s signing statements, President Obama issued one of his own regarding the Omnibus Appropriations Act of 2009. Citing among others his “commander in chief” and “foreign affairs” powers, he refused to be bound by at least eleven specific provisions of the bill including one long-standing rider to appropriations bills designed to aid congressional oversight.14 As I told TheWall Street Journal, “We’re having a repeat of what Democrats bitterly complained about under President Bush,” and if President Obama “wants to pick a fight, Congress has plenty of authority to retaliate.”15


The Terrorist Surveillance Program—Act II

Many of the issues surrounding the Terrorist Surveillance Program and executive authority resurfaced in 2008. FISA reform legislation, which began making its way through the Senate in February of last year, included a controversial provision giving retroactive immunity to the telecommunications companies for their alleged cooperation with the Terrorist Surveillance Program.

Throughout, my chief concern was to keep the way to the courts open as a means to check executive excesses. I offered an amendment, both in committee and on the floor, to substitute the United States government for the telephone companies facing lawsuits related to the Terrorist Surveillance Program. Instead of immunity, my amendment would have put the government in the place of the companies, so that the cases could go forward without posing a legal threat to the companies themselves.

When this proposal was defeated, I proposed yet another amendment, which would have required a federal district court to determine that the surveillance itself was constitutional before granting immunity. I also cosponsored an amendment that would have delayed the retroactive immunity for the telephone companies until a mandatory inspector general’s report on the Terrorist Surveillance Program had been issued.

Despite my fight to keep the courts open, in the end all my amendments were defeated. Nevertheless, as I said I would, I ultimately voted for the FISA reform bill. I chose not to reject the entire package—which had the support of nearly seventy senators, including both presidential candidates—not only because my classified briefings on the surveillance program convinced me of its value, but also because of the important oversight provisions it imposed on future surveillance programs.

The FISA reform bill required prior court review of the government’s procedures for surveillance of foreign targets, except in exigent circumstances. It also required that the Intelligence Court determine whether procedures for foreign targeting satisfy Fourth Amendment protections against unreasonable searches. In addition, before monitoring US citizens outside the country, it required individualized court orders based on probable cause. Finally, the bill mandated a comprehensive review of the Terrorist Surveillance Program by several inspectors general. Indeed, the final bill had many elements in common with my earliest efforts to place the Terrorist Surveillance Program under FISA—it just took years to get there. And Congress and the courts may yet need to correct its flaws.


A Plan for the Future

These experiences have crystallized for me the need for Congress and the courts to reassert themselves in our system of checks and balances.16 The bills I have outlined are important steps in that process. Equally important is vigorous congressional oversight of the executive branch. This oversight must extend well beyond the problems of national security, especially as we cede more and more authority over our economy to government officials.

As for curbing executive branch excesses from within, I hope President Obama lives up to his campaign promise of change. His recent signing statements have not been encouraging. Adding to the feeling of déjà vu is TheWashington Post ‘s report that the new administration has reasserted the “state secrets” privilege to block lawsuits challenging controversial policies like warrantless wiretapping: “Obama has not only maintained the Bush administration approach, but [in one such case] the dispute has intensified.” Government lawyers are now asserting that the US Circuit Court in San Francisco, which is hearing the case, lacks authority to compel disclosure of secret documents, and are “warning” that the government might “spirit away” the material before the court can release it to the litigants.17 I doubt that the Democratic majority, which was so eager to decry expansions of executive authority under President Bush, will still be as interested in the problem with a Democratic president in office. I will continue the fight whatever happens.

—April 16, 2009

This Issue

May 14, 2009