Why Congress needs to go big -- and restrict the power of a runaway executive branch.
- By Bruce AckermanBruce Ackerman is professor of law and political science at Yale University.
From indiscriminate drone strikes to indiscriminate surveillance, an escalating series of disclosures is shaking public confidence in the secret decision-making that has prevailed since Sept. 11, 2001. This growing demand for reappraisal of presidential power is characteristic of postwar periods. As the Vietnam War wound down in the early 1970s, newspaper headlines were also reporting a series of scandalous abuses. Congress then responded with serious efforts at fundamental reform. It reasserted its authority over presidential war-making in the 1973 War Powers Resolution, restricted the abuse of emergency powers in the 1976 National Emergencies Act, and imposed the rule of law on the intelligence services by creating a special Foreign Intelligence Surveillance Court, known as the FISA Court, in 1978.
Broadly speaking, this effort has proved to be a failure — not least because the presidency waged successful campaigns to weaken Congress’s initiatives from the very beginning. President Richard Nixon vetoed the War Powers Resolution, which required presidents to end military operations if Congress did not explicitly approve them within 60 days. Although two-thirds of both houses overrode his veto, his denunciation of the act’s constitutionality opened a path for future presidents to evade the resolution’s demand for timely congressional approval — either by ignoring the 60-day restriction entirely, as in the case of Kosovo, or by blatantly misconstruing its provisions, as in Libya.
A similar fate awaited the efforts of special committees chaired by Sen. Frank Church and Rep. Otis Pike in the 1970s. They proposed an ambitious charter to regulate covert action and ban foreign assassinations. Advised by the young Dick Cheney and Donald Rumsfeld, President Gerald Ford deflected this initiative by issuing an executive order that purported to accomplish the Church-Pike objectives — creating a special oversight board on intelligence activities and restricting their domestic impact. This left it open for future presidents to reinterpret and modify these executive directives without congressional approval. Ford’s clever action took the steam out of Congress’s effort, forcing the reformers to content themselves with a relatively weak system of judicial oversight imposed by FISA. Most obviously, the statute did not require the FISA Court to publish opinions that announced its views on contested matters of statutory interpretation, nor did it create a framework within which executive branch advocates for privacy, as well as national security, could effectively have their say.
We have a lot to learn from this history as the United States enters into another period of reappraisal. At least President Barack Obama does not, like Nixon and Ford, deny the existence of fundamental problems. He has not only emphasized James Madison’s warning that "No nation could preserve its freedom in the midst of continual warfare." He has also called on Congress to engage in a broad-ranging reassessment of the present national security regime, including efforts to "refine and ultimately repeal" its authorization for use of military force (AUMF) in the aftermath of the 9/11 attacks.
The question is whether Congress can rise to the occasion. With libertarian Republicans and liberal Democrats providing the political energy for reform, and national security hawks providing the necessary reality checks, a more successful rerun of the 1970s may suddenly be within the range of political possibility.
But one thing should be clear. It isn’t enough to pass a few narrow statutes dealing with one or another headline scandal. Congress should instead follow the precedent set by Church and Pike. It should once again establish special panels that can take a broader view than can be expected from standing committees that concentrate on defense, intelligence, and the judiciary. The challenge is to move beyond tunnel vision, and see how current war-making and surveillance practices generate systematic pathologies. The Patriot Act’s broad terms were adopted and extended as an integral part of the AUMF’s all-out war against al Qaeda. But today they need dramatic revision as the AUMF is refined and repealed. The same is true in redefining the proper scope of high-tech surveillance and war-making techniques.
This is especially important because it would be wrong for Congress to suppose that only some statutory fine-tuning is necessary to create a sound institutional structure. To the contrary, the earlier wave of landmark statutes contained serious flaws, and those statutes have been severely eroded by presidents of both parties over the past generation. Congress can only do better this time if it learns from past mistakes.
The special committees of the 1970s took 15 months before advancing their ambitious proposals. It may well take longer this time. Church and Pike didn’t have to deal with issues of war-making authority because Congress had passed the War Powers Resolution before they began work. But only a similarly robust congressional effort holds any hope for real change over the next few years. It is not nearly enough for the standing committees to hold a few hearings in the poorly disguised hope that the present storm will subside without any significant action. The Rand Pauls and Ron Wydens must keep the pressure up for the creation of select committees that could adapt the Church-Pike vision to the 21st century.
If they fail in the short term, the need for a special effort in the next Congress should serve as a rallying cry for civil libertarians during the 2014 elections. Under pressure from the voters, the last two years of the Obama presidency need not simply repeat the "speak of reform, behave unreformed" pattern that has become all too familiar. We might witness a different scene, one in which libertarian Republicans and liberal Democrats force the leadership to create select committees that will enable Congress and the president to hammer out a new national security regime for the post-Obama era.
Partisans of the status quo will claim that a serious congressional effort will only make the problem worse, generating statutes that will give a legal imprimatur for a new cycle of executive abuse. But this downside risk will be minimized during Obama’s last two years, when he will turn increasingly to the legacy he is leaving behind. The challenge instead is to press him finally to redeem his fine words by building a solid structure for the future. This will demand real statesmanship from Congress. But it is the only serious path that will allow the country to heed Madison’s warning about the dangers of "continual warfare."