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Debating the Limits of Executive Power

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Debating the Limits of Executive Power

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Debating the Limits of Executive Power

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NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

And here are the headlines from some of the other stories we're following here today at NPR News. New York City's bus and subway service could return as early as tomorrow. News agencies are reporting, some of them, that the strike is over. A mediator earlier said that union leaders have agreed that the city's transit strike should not continue while talks are under way. Talks are set to resume and the union's executive board is set to vote on that deal.

Also, the trial of Saddam Hussein and his co-defendants has adjourned until next month. During today's testimony, a judge said officials never saw evidence to verify Saddam's claims that he was beaten while he was in American custody. You can hear details of those stories and, of course, much more later today on "All Things Considered" from NPR News.

Tomorrow it's "Science Friday," and Ira Flatow will be here for a discussion of this week's ruling on the teaching of intelligent design and the latest on this year's Christmas bird count. That's tomorrow on TALK OF THE NATION/"Science Friday."

Two high-profile cases highlight the latest battle over governmental powers and the limits of the executive power. In one case, judges on the Foreign Intelligence Surveillance court expressed their concern over the legality of President Bush's domestic espionage program which allows wiretapping of Americans without a warrant. In another, the 4th Circuit Court of Appeals has denied a request by the Bush administration to transfer so-called enemy combatant Jose Padilla from military to civilian criminal court. To whom does the Constitution grant authority? How does it change during time of war? If you have questions about either of these cases, give us a call: (800) 989-8255, (800) 989-TALK. And our e-mail address is totn@npr.org.

Joining us now are Akhil Amar, constitutional law professor at Yale University's Law School, and he joins us from his office in New Haven, Connecticut.

Good to have you on the program, Professor.

Professor AKHIL AMAR (Yale University Law School): Thank you.

CONAN: And Doug Kmiec, professor of constitutional law at Pepperdine University in Malibu, California. He joins us from his home in Malibu.

And, Doug Kmiec, nice to talk to you again.

Professor DOUG KMIEC (Pepperdine University): Neal, good to be with you.

CONAN: Let's look at the Foreign Intelligence Surveillance court case first. And, Doug Kmiec, what are the judges' concerns here, do you think?

Prof. KMIEC: Well, the judges have a concern about whether the Foreign Intelligence Surveillance Act has been properly observed. The Foreign Intelligence Surveillance Act allows for the surveillance of foreign powers for the purpose of gathering foreign intelligence, and its primary function has been in--with regard to gathering that information for law enforcement purposes or for purposes of diplomacy. The president has taken the position that he has the authority under the Constitution as well as under the laws of the United States in terms of the authorization for use of military force that followed 9/11 to engage in surveillance that is beyond the surveillance authorized by the Foreign Intelligence Surveillance Act, and I think the judges want to know the justification for that from the president's lawyers.

CONAN: And, Akhil Amar, one of the things they--at least on the face of it, not being a lawyer, reading the FISA Act, it seems to say, `Look, there's a way to do secret wiretaps. These are the procedures you must follow and no others.'

Prof. AMAR: Yeah, that's how I read it, too. And so whether one's a lawyer or not a lawyer, the words seem pretty clear.

CONAN: And so therefore, you know, the members of the FISA Court are--seem to be asking in requesting these briefing from the administration as to saying, `What are we doing here?'

Prof. AMAR: Exactly.

Prof. KMIEC: Well--and I do think--this is Doug Kmiec--I do think there are things the president can say because one of the things we know is that we are in a rather novel war, but we are in a war nonetheless, and in wartime, military intelligence has often been gathered both physically and electronically without obtaining a search warrant. The military does not obtain search warrants on the battlefield, for example. And virtually every president has claimed the authority as part of his military obligation to protect the nation's security, a constitutional basis to engage in these searches separate and apart from FISA. The theory being that FISA, the Foreign Intelligence Surveillance Act, is regularizing the process when what is being gathered may be used for purposes of law enforcement--criminal prosecution, espionage, treason and the like--but it does not apply, or at least the president's argument would be that it does not apply when he's trying to safeguard the basic safety of the United States and to prevent another terrorist attack, exactly what he has been authorized to do by Congress under the 9/11 resolution.

CONAN: And, Akhil Amar, some may question whether indeed the president was authorized to go as far as warrantless searches under that resolution passed after 9/11.

Prof. AMAR: Well, the resolution didn't say anything about warrantless searches, and one wonders whether it basically--the president thinks it repealed all civil liberties laws ever adopted. We're not talking about use of force against people abroad, enemies abroad, but listening in on Americans at home, and the people--a lot of the people in Congress said, `Gee, we didn't think we voted for that.' And the president's constitutional argument, I guess, is even regardless of what people in Congress did or didn't vote for, he can just apparently disregard the laws if national security so dictates. That's his constitutional argument. It's very exuberant.

Mr. Lincoln never claimed such a power and he was dealing with a civil war at home, and he basically said, `There are emergency situations. We're in a war. There are lots of things I need to do to hold the country together, and you, my fellow citizens in Congress, have to authorize what I've done. And I need to report to you and my fellow citizens what I've done so that we can actually have a conversation, a democratic conversation about whether this is legitimate.'

So even if all of this is true, for the president not to basically tell the Congress and the American people that this is the policy. You don't tell them who you're listening in on and when, but you do basically, I think, have an obligation to be clear with the Congress and the American people and not do back channels, but openly in a democratic society. Here's--we need to amend FISA to deal with this situation, and then we can have a conversation about that.

CONAN: And of course the administration said they did brief some members of Congress about what was going on...

Prof. AMAR: Well, it doesn't count when you talk to a few people and they can't talk to anyone else because it's a crime to talk to anyone else and they can't have staff in the room. And even if he did that, his claim--under Article 2 in the Constitution claim is that he can do it on his own, so that was just out of the goodness of his heart or out of a sense of discretion, and that's not quite what the constitutional standards are.

Let me just give you an example. Your listeners are hearing these days about whether McCain's proposal about torture is gonna get adopted or not. But under this approach to the Constitution, the president could sign it into law tomorrow and then secretly disregard it the next day without telling anyone because national security is involved and he's commander in chief.

CONAN: Let's get some listeners involved in the conversation. This is Ed. Ed's calling us from Wenham--Is that right?--in Massachusetts.

ED (Caller): It certainly is. I'm up by Hamilton, you know, horse country.

CONAN: OK, go ahead.

ED: Anyway, good afternoon, Professors. I'm a second-year law student. I just suffered my Con law exam this last Thursday.

CONAN: Oh.

Prof. KMIEC: Congratulations.

ED: And all I can say is, `Ow.'

CONAN: Good luck to you.

Prof. KMIEC: It is torture.

ED: Yeah. So, you know, the reason I'm calling is that I realized--I was thinking about this issue, and it occurred to me that one of the principle rules of statutory construction is that you cannot imply a repeal of a law, and that even if the use of force gave the president all sorts of powers, it did not allow--it did not repeal any statutory law regarding spying on citizens, nor did it repeal any of the articles in FISA.

CONAN: Doug...

ED: And I just wanted to get your comments on that and your thoughts about, you know, whether or not that's an approach to take to try to deal with this seemingly unconstitutional act on the president's part.

CONAN: Doug Kmiec, you've written about a loophole that you saw in the FISA law.

Prof. KMIEC: Well, Ed's question's a good one. You can tell he's gonna do well on an exam. There is a provision in the FISA law, and I think it's Section 1809, that provides that FISA applies unless it is authorized differently or unless something else is authorized differently in statute. So it's clear that FISA was not attempting to speak about the entire universe of foreign intelligence surveillance, and certainly that's the way other presidents have spoken about it. I certainly share Akhil's concern that we stay as a nation under law and we abide by both the text of the Constitution and the statutes as enacted, but I think it must be fairly said that other presidents have concluded that they have had this authority, most notably and recently the Clinton administration, and in the mid-1990s testified before Congress that they had this authority as amendments were being made to the FISA Act.

And so I think it's not a question of just disregarding the text of the statute but harmonizing both the constitutional claim, understanding what it is that FISA was anticipating when it said that further surveillance could be authorized by statute, and then evaluating whether in the context of responding to 9/11 the president was acting reasonably and responsibly to assess national security to be higher than the privacy interests that are obviously at risk as well.

Prof. AMAR: Well, if that's the argument, then, of course, it doesn't matter what this act of force resolution is all about. That's just a claim that FISA doesn't prohibit this thing rightly understood. I'm not aware that the Clinton administration claimed it actually did listen, surveille American citizens domestically, notwithstanding the seeming provisions of FISA, and if they did publicly claim that, then I missed it, and I think most Americans did, too. That's news to me. And ...(unintelligible) a problem when the executive branch, which has to actually do the listening secretly, that I understand, but they have to tell Americans what their policy is, because we need to have a national conversation about that, because suppose the Congress doesn't want the president to do that. How is it even able to know about this and debate what the rules of FISA should be? And, frankly, I'm not sure that the warrant provision is, in fact, the best way of dealing with this situation, because when judges are authorizing this thing, they're not really acting with all the judicial safeguards. This is nothing Ed might be thinking about in his Con law class. They're acting behind closed doors. They're not issuing written opinions. They don't give actually the person who's listened to--listened in on notice the way actually an old-fashioned warrant actually leaves the person a notice, `We came, we saw, we searched, we seized.' But there's none of that. So maybe judicial preclearance is not the way to go. Maybe a better statutory fix would require the president periodically to report to Congress, to make findings himself and to periodically report to Congress and--so there are lots of different ways we could regulate it, but we need to know actually what the president's policy is.

CONAN: Ed, thanks very much for the call and good luck on the next exam.

We're talking with Akhil Amar at Yale Law School and with Doug Kmiec at the law school at Pepperdine University in Malibu, California.

You're listening to TALK OF THE NATION from NPR News.

And I wanted to switch now to the other big case that involves presidential powers that came down this week, and that was the decision by the 4th Circuit Court of Appeals, and this is the Jose Padilla case.

And, Akhil Amar, could you bring us up to date on what's transpired thus far?

Prof. AMAR: Well, the 4th Circuit said yesterday that they are not gonna allow the administration to switch gears and initiate a regular civilian prosecution of Mr. Padilla. They're not gonna authorize that he be switched basically from the military brig where he's been kept into another jurisdiction for criminal prosecution. And it was a pretty aggressive ruling on the part of the 4th Circuit actually.

CONAN: They seemed to say that one of the things the administration has done--they don't know whether they've done this or not, but they've left the impression--that they were just trying to avoid review of Mr. Padilla's case before the Supreme Court.

Prof. AMAR: They did say that. One wonders, though, why the--that's the 4th Circuit's call. The Supreme Court, if it wants to, can hear the case. There are various exceptions to a doctrine call mootness, and so if the Supreme Court wanted to hear the case, I think it could have. Mr. Padilla actually wanted to be transferred, because I think he wanted to be tried, so it's rather exuberant for the judges to basically say, `Well, we don't care what the defendant wants, we know what's best,' and to take over actually certain executive functions which are to make determinations about whether Padilla is best treated as an enemy combatant or is instead better viewed as a criminal who should be prosecuted in an ordinary criminal court. He might be both things, an enemy combatant and a criminal, and I would have thought that that's the executive branch's determination about how to proceed.

CONAN: Doug Kmiec, let me bring you in on this. The court said that by basically holding him as an enemy combatant for three and a half years by this point, arguing one set of facts, then the administration comes back and argues another set of facts to justify the criminal charges against Mr. Padilla, nothing about dirty bombs, nothing about attempts to blow up apartment buildings in New York City, and the court ruling said its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake.

Prof. KMIEC: Well, Neal, I think Akhil put his finger on the exact puzzle about the court's response to the government's motion to vacate and to transfer him into the civilian system. Namely that one would have thought it is within the discretion of governments to decide whether the person they have in front of them is an enemy combatant or a criminal defendant, or maybe both, and that, I suspect, in truth Mr. Padilla from the government's perspective is both. That the allegations that he was fighting on the battlefield in Afghanistan, that he was meeting with high-level members of al-Qaeda, that he was plotting these various dirty bomb and apartment attacks made him a terrorist suspect in an enemy combatant sense who could be detained as an aspect of the war, and the 4th Circuit had held that rather categorically in its judgment in September.

But he may also be someone who, separate and apart from those things, is guilty of a crime. And the president is confronted here with a bit of a whipsaw. People have been to some degree complaining for months that the president has had the authority to designate people as enemy combatants. The Supreme Court of the United States has now affirmed his capability to do that, even with respect to American citizens with a proper showing. And there has been this pressure that he should use the regular criminal justice system and now when he does, he's basically given a slap on the hand.

CONAN: Akhil Amar, we just have a couple of seconds left, but the 4th Circuit opinion did question whether the government was just acting expediently, and questions its credibility before the courts.

Prof. AMAR: Well, government is sometimes allowed to act expediently. The question is whether they've acted illegally, and I don't quite see what was the problem when Mr. Padilla wanted to be transferred and the government wanted to transfer him and actually start criminal proceeding in the light of day that we can all watch what the constitutional problem was. The court said, `Well, there's a habeas corpus rule that you can't sort of transfer without sort of approval,' but I think the idea there was you don't want someone to be--a person to be transferred, in effect, out of the court system...

CONAN: Right.

Prof. AMAR: ...in a way that judges can't review the situation, but that wasn't gonna be happening here.

CONAN: Akhil Amar at Yale University Law School, Doug Kmiec at Pepperdine University Law School in Malibu, California. Thanks to you both.

Prof. AMAR: Thank you.

Prof. KMIEC: Good to be with you.

Prof. AMAR: Happy holidays.

CONAN: Thank you.

Stay tuned for more on the story about the New York transit strike later today on NPR News.

This is TALK OF THE NATION. I'm Neal Conan in Washington.

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