JURIST Guest Columnist Heidi Kitrosser of the University of Minnesota School of Law says that White House arguments in defense of the NSA domestic surveillance program are pushing the limits of Presidential secrecy beyond proper constitutional bounds…

Two of the most frequent and most apt criticisms made about the secret Presidential order authorizing spying by the National Security Agency (“NSA”) are:

1) the order violates the Constitution’s separation of powers by authorizing activity in violation of the Foreign Intelligence Surveillance Act (“FISA”) and by thus usurping legislative authority; and
2) the secrecy of the Presidential order violates principles of democratic accountability.

While each point independently has merit, it also is important to understand the connection between the two points. Presidential adherence to legislative mandates is so important in large part because of the protections that are built into the legislative process, including the relative openness of that process. It is no accident that the Constitution both leaves room for the President to operate in secret and subjects the President to substantial legislative control. This constitutional design suggests that while secrecy often is a legitimate tool for the President to use in executing legislative policy, the propriety of such usage itself must be subject to reconsideration and to checking by the legislature to prevent it from turning tyrannical. White House arguments in defense of the secret spying program — that a general military force authorization should be read so broadly as to encompass such a program and that such a program is within the President’s inherent powers even absent legislative authorization — fly in the face of a constitutional design meant to keep the President, and Presidential secrecy, under careful control.

This interpretation follows from the Constitution’s text and structure. The Constitution brilliantly provides for relatively public, dialogic, dual-branch review before legislation may be passed. The Constitution also provides for substantial legislative control with respect to military and domestic matters. Thus, while the President is the “Commander in Chief,” it is for Congress to declare war in the first place, to provide for the common defense, to raise and support the army and navy, to “make Rules for the Government and Regulation of the land and naval Forces” and to make other laws “necessary and proper” to effectuate its own powers and those of the President. And it is the legislative process through which new policy affecting citizens’ rights generally must pass. The arduous public and dialogic process through which policy must be made is among the Constitution’s most important protections against government tyranny. Among other things, it reflects the founding generation’s well-known fear of monarchical power. It would be antithetical to this careful system were the President permitted to formulate and to execute secret policies that are immune from public and legislative checking.

Support for this essay’s constitutional interpretation also can be drawn from the same historical sources often used to support a broad Presidential discretion to keep secrets. Proponents of such discretion often cite to two statements from the Federalist Papers — one by Alexander Hamilton and one by John Jay — explaining that an advantage of a single President (as opposed to a council of co-Presidents) is the relative ability of a single person to operate with “secrecy” and “dispatch.” What typically goes unmentioned, however, is that these statements exist within the context of larger discussions extolling the virtues of a unitary President, including the relative transparency, upon investigation, of a single person’s doings. For example, in the same essay in which he explains that “[d]ecision, activity, secrecy, and dispatch will generally characterize the proceedings of one man,” Alexander Hamilton approvingly cites the responsibility and potential transparency of a unitary President. Hamilton argues that “multiplication of the executive adds to the difficulty of detection,” including the “opportunity of discovering [misconduct] with facility and clearness.” One person “will be more narrowly watched and most readily suspected.” This suggests a compromise between the advantages of Presidential secrecy and the risk of tyranny that such secrecy poses: the President can use his unique capacity for secret-keeping but such use must remain on a relatively short political leash, subject to legislative checking and revision.

White House arguments in defense of the secret spying program are antithetical to the Constitution’s protective balance of powers. The White House argues, first, that the September 14, 2001 Authorization for Use of Military Force (“AUMF”) directly authorizes the program. This argument fails absent deference to the broadest and most counterintuitive of statutory interpretations by the President. Such deference would substantially undermine the separation of powers by making legislation largely superfluous to Presidential decision-making. Indeed, the AUMF’s text speaks almost entirely of military force. Naturally, the use of military force will require some activities incidental to such use. But such use in no way clearly or intuitively encompasses the power to intercept Americans’ phone calls with persons overseas. The counterintuitive nature of this association is exacerbated by the context in which the Joint Resolution was created — one in which the FISA already comprehensively addressed the monitoring of calls made by U.S. citizens. The counterintuitive nature of this association also is evidenced by the AUMF’s history, which includes a congressional rebuff of White House attempts to enact a more broadly worded AUMF. If so broad and counterintuitive an interpretation of the AUMF is antithetical to separated powers, then surely there is no constitutional legitimacy in the White House’s alternative claim that the President’s secret spying order is justified by his inherent constitutional powers in the face of contrary legislative authority.

Finally, experience since discovery of the NSA spying program reflects the dangers of unchecked Presidential secrecy. First, while the program eventually came to light due to leaks, the program took place for roughly three years without public or general congressional knowledge and thus with no opportunity for political oversight. Second, while the White House apparently notified a handful of congressional leaders about the program while it was ongoing, reports indicate that the leaders were instructed that the information was classified and that they were to share it with no one, a situation hardly conducive to oversight. Indeed, a striking aspect of Attorney General Gonzales’ recent Senate testimony on the program is the tension between his claim that the notified congresspersons surely could have “done something about [the program]” were they concerned about it, and his repeated criticism of the leaking that led to the program’s disclosure. Third, in spite of public and congressional concern since the program came to light, the White House to date has refused to release key details necessary to understand and evaluate the basic parameters of the program, including precisely when the program began. Fourth, a number of factors suggest that the White House’s reticence to answer questions in the wake of the program’s revelation is politically strategic. These factors include the Attorney General’s relative amenability to answering questions po
sed by senators friendly to the program and President Bush’s sudden public disclosure of details of a terrorist plot against Los Angeles in the wake of the program’s revelation. These examples, by no means exhaustive, illustrate the President’s special capacity for secrecy and the dangers that such capacity breeds. Such illustration reveals the wisdom of the Constitution’s structural protections against unchecked Presidential secrecy and the damage that can be done by erosion of those protections.

Heidi Kitrosser currently is a visiting associate professor at the University of Minnesota Law School and an assistant professor at Brooklyn Law School. She will be an associate professor at the University of Minnesota Law School as of fall 2006.
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