This issue of the University of Miami Law Review is comprised of papers delivered during the live proceedings of the Law Review's annual symposium held on February 24, 2007. The symposium, entitled Article II: The Uses and Abuses of Executive Power, was organized to create a venue for legal scholars and practitioners to engage in sustained analysis of the scope and significance of the Bush administration's invocation of Article II of the U.S. Constitution as legal authority for its warrantless surveillance program, its authorization of "harsh interrogation techniques," extraordinary renditions, indefinite detentions, military commissions, and other assertions of executive power that incrementally and now cumulatively have come to define the administration's global War on Terror.' The war on Terror is also a domestic war on the homefront. The recent election confirms this. Click here.
This issue of the University of Miami Law Review is comprised of
papers delivered during the live proceedings of the Law Review's annual symposium held on February 24, 2007. The symposium, entitled Article II: The Uses and Abuses of Executive Power, was organized to create a venue for legal scholars and practitioners to engage in sustained analysis of the scope and significance of the Bush administration's invocation of Article II of the U.S. Constitution as legal authority for its warrantless surveillance program, its authorization of "harsh interrogation techniques," extraordinary renditions, indefinite detentions, military commissions, and other assertions of executive power that incrementally and now cumulatively have come to define the administration's global War on Terror.' The idea for this symposium was originally inspired by the proceedings of a remarkable hearing before the Senate Judiciary Committee on March 31, 2006, entitled An Examination of the Call to Center.
The committee's censure hearing had its own origin and context.
On December 16, 2005, the New York Times published a story revealing
the existence of the Bush administration's warrantless electronic surveillance program.4 On December 19, 2007, the President held a press conference in which he confirmed that he had authorized the surveillance program and thereafter Bush officials asserted various legal arguments in support of the President's actions including assertions that Congress had in fact authorized the surveillance program through the Authorization for the Use of Military Force and, equally if not more provocatively,that the President did not need statutory authority to conduct warrantless surveillance as part of his global War on Terror because he had inherent authority to do so under Article II of the U.S. Constitution.6
This was not the first time, nor the last, that the Bush administration would seek to use Article II as legal justification for extraordinary assertions of executive power in connection with its global War on Terror. Internal legal memos released by the Justice Department in June 2004, as well as legal arguments advanced before the Supreme Court in Hamdi v. Rumsfeld7 and Hamdan v. Rumsfeld8 reveal Article II arguments underlying a breathtaking array of asserted executive powers,including the power to classify individuals, indeed entire groups, as "unlawful enemy combatants"; to order indefinite detentions of citizens and noncitizens alike both within and beyond the territorial boundaries of the United States; to create military tribunals and establish trial procedures in violation of otherwise applicable treaties and statutes; to suspend the Geneva Conventions; to ignore even peremptory norms of customary international law, and to buttress claims that application of the federal antitorture statute to interrogations performed under the authority of the commander in chief would infringe upon the President's Article II powers.9 Against this backdrop, the Bush administration's
resort to Article II for legal justification to head off the gathering scandal
over its secret domestic surveillance program was hardly surprising.
What was surprising was the censure hearing held in the Senate
Judiciary Committee on Friday, March 31, 2006. Here was a Republican-controlled committee of the Republican-controlled Senate examining a call to censure a Republican President at the request of a
Democratic Senator. Could it be the President had gone too far even for his own party? The five Republicans at the hearing clearly outnumbered
Senators Leahy and Feingold, the only two Democrats present. Did this mean that constitutional principle was poised to surge over party interest? If so, where then were Senators Kennedy, Biden, Feinstein, andS Schumer1
" Surely they would want to be present for so momentous a
turning point, or was this hearing a political stunt-a staged event for political consumption by the American people? And if so, to what end?
Was it designed to assure us that constitutional checks and balances had survived the consolidation of a one party government? A public performance of intra-party conflict orchestrated to create the illusion of interbranch accountability-a tempest in the teapot of a censure resolution. What, after all, was the significance of a censure resolution in the Senate's Judiciary Committee when, outside the committee, the everl loudercall was for impeachment?"
A sticking point during the censure hearing was not so much the
warrantless surveillance program, itself, as the legal theory the Bush administration had advanced in support of the program. Senator Feingold, the proponent of the call for censure, put the matter quite starkly:
[I]f the President has the inherent authority to authorize whatever sur-
veillance he thinks is necessary, then he surely will ignore [any future
legislation] just as he has ignored FISA on many, many occasions.
If the President's legal theory ...is correct, then FISA is a dead
letter. All of the supposed protections for civil liberties contained in
the reauthorization of the PATRIOT Act that we just passed are a
cruel hoax, and any future legislation we might pass regarding sur-
veillance or national security is a waste of time and a charade. Under
this theory, we no longer have a constitutional system consisting of
three coequal branches of Government. We have a monarchy.' 2
In Feingold's view, the legal arguments advanced in support of the
President's warrantless domestic surveillance program not only raise
questions about the scope of the President's inherent powers under Arti-
cle II and the relationship between those powers and the powers of Con-
gress under Article I and the Judiciary under Article III, but also-and
more fundamentally-place in doubt the President's commitment to be
governed by the rule of law. 3 Accordinaly, in Feingold's view, a reso-
lution of censure was a necessary step for the Senate to avoid complicity
in the President's lawlessness and resist his efforts to dismantle the con-
stitutional structure of American government: "None of us here can pre-
dict how history will view this current episode, but I do hope that 30
years from now this Senate will not be seen to have backed down in the
face of such a grave challenge to our constitutional system." 4
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