2NC/1NR – Impact
The president’s power is higher than ever. Obama has become a “matchless war-powers unilateralist” – Syria, military force against ISIS, and unilateral decisions for intervention proves.
Goldsmith 14 – Jack, professor at Harvard Law School and a member of the Hoover Institution Task Force on National Security and Law, served as Assistant Attorney General in the Office of Legal Counsel, from 2003-2004, in the George W. Bush Administration, 2014 (“Obama’s Breathtaking Expansion of a President’s Power To Make War,” Time, Sept. 11, Available Online at http://time.com/author/jack-goldsmith/)
President Obama hoped to repeal the Bush-era authorization declaring war on al Qaeda—instead he's expanded it without bound
Future historians will ask why George W. Bush sought and received express congressional authorization for his wars (against al Qaeda and Iraq) and his successor did not. They will puzzle over how Barack Obama the prudent war-powers constitutionalist transformed into a matchless war-powers unilateralist. And they will wonder why he claimed to “welcome congressional support” for his new military initiative against the Islamic State but did not insist on it in order to ensure clear political and legal legitimacy for the tough battle that promised to consume his last two years in office and define his presidency.
“History has shown us time and again . . . that military action is most successful when it is authorized and supported by the Legislative branch,” candidate Barack Obama told the Boston Globe in 2007. “It is always preferable to have the informed consent of Congress prior to any military action.” President Obama has discarded these precepts. His announcement that he will expand the use of military force against the Islamic State without the need for new congressional consent marks his latest adventure in unilateralism and cements an astonishing legacy of expanding presidential war powers.
The legacy began in 2011 with the seven-month air war in Libya. President Obama relied only on his Commander in Chief powers when he ordered U.S. forces to join NATO allies in thousands of air strikes that killed thousands of people and effected regime change. His lawyers argued beyond precedent that the large-scale air attacks did not amount to “War” that required congressional approval. They also blew a large hole in the War Powers Resolution based on the unconvincing claim that the Libya strikes were not “hostilities” that would have required compliance with the law.
Although he backed down from his threat to invade Syria last summer, President Obama proclaimed then the power to use unilateral force for purely humanitarian ends without congressional or United Nations or NATO support. This novel theory, which removed all practical limits on presidential humanitarian intervention, became a reality in last month’s military strikes to protect civilians trapped on Mount Sinjar and in the town of Amirli.
Yesterday’s announcement of a ramped-up war against the Islamic State in Iraq and possibly Syria rests on yet another novel war powers theory. The administration has said since August that air strikes in Syria were justified under his constitutional power alone. But yesterday it switched course and maintained that Congress had authorized the 2014 campaign against the Islamic State in the 2001 law that President George W. Bush sought to fight the Taliban and al Qaeda.
Executive power is strong now – Syria situation proves.
Posner 13 – Eric, a professor at the University of Chicago Law School, 2013 (“Obama Is Only Making His War Powers Mightier,” September 3, Available Online at http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/09/obama_going_to_congress_on_syria_he_s_actually_strengthening_the_war_powers.html)
President Obama’s surprise announcement that he will ask Congress for approval of a military attack on Syria is being hailed as a vindication of the rule of law and a revival of the central role of Congress in war-making, even by critics. But all of this is wrong. Far from breaking new legal ground, President Obama has reaffirmed the primacy of the executive in matters of war and peace. The war powers of the presidency remain as mighty as ever.
It would have been different if the president had announced that only Congress can authorize the use of military force, as dictated by the Constitution, which gives Congress alone the power to declare war. That would have been worthy of notice, a reversal of the ascendance of executive power over Congress. But the president said no such thing. He said: “I believe I have the authority to carry out this military action without specific congressional authorization.” Secretary of State John Kerry confirmed that the president “has the right to do that”—launch a military strike—“no matter what Congress does.”
Thus, the president believes that the law gives him the option to seek a congressional yes or to act on his own. He does not believe that he is bound to do the first. He has merely stated the law as countless other presidents and their lawyers have described it before him.
The president’s announcement should be understood as a political move, not a legal one. His motive is both self-serving and easy to understand, and it has been all but acknowledged by the administration. If Congress now approves the war, it must share blame with the president if what happens next in Syria goes badly. If Congress rejects the war, it must share blame with the president if Bashar al-Assad gases more Syrian children. The big problem for Obama arises if Congress says no and he decides he must go ahead anyway, and then the war goes badly. He won’t have broken the law as he understands it, but he will look bad. He would be the first president ever to ask Congress for the power to make war and then to go to war after Congress said no. (In the past, presidents who expected dissent did not ask Congress for permission.)
People who celebrate the president for humbly begging Congress for approval also apparently don’t realize that his understanding of the law—that it gives him the option to go to Congress—maximizes executive power vis-à-vis Congress. If the president were required to act alone, without Congress, then he would have to take the blame for failing to use force when he should and using force when he shouldn’t. If he were required to obtain congressional authorization, then Congress would be able to block him. But if he can have it either way, he can force Congress to share responsibility when he wants to and avoid it when he knows that it will stand in his way.
Executive flexibility is crucial to preserving peace, stopping nuclear proliferation, preventing terrorism, and de-escalating regional hotspots.
Blomquist 10 – Robert F., Professor of Law, Valparaiso University School of Law. J.D., Cornell Law School; B.S., University of Pennsylvania, 2010 (“The Jurisprudence Of American National Security Presiprudence,” Valparaiso University Law Review (44 Val. U. L. Rev. 881) Available Online to Subscribing Institutions via Lexis-Nexis)
A. Strategic Considerations of Institutional Design Coupled with Form and Function
Supreme Court Justices—along with legal advocates—need to conceptualize and prioritize big theoretical matters of institutional design and form and function in the American national security tripartite constitutional system. By way of an excellent introduction to these vital issues of legal theory, the Justices should pull down from the library shelf of the sumptuous Supreme Court Library in Washington, D.C. (or more likely have a clerk do this chore) the old chestnut, The Legal Process: Basic Problems in the Making and Application of Law by the late Harvard University law professors Henry M. Hart and Albert M. Sacks.7 Among the rich insights on institutional design coupled with form and function in the American legal system that are germane to the Court’s interpretation of national security law-making and decision-making by the President are several pertinent points. First, “Hart and Sacks’ intellectual starting point was the interconnectedness of human beings, and the usefulness of law in helping us coexist peacefully together.”8 By implication, therefore, the Court should be mindful of the unique constitutional role played by the POTUS in preserving peace and should prevent imprudent judicial actions that would undermine American national security. Second, Hart and Sacks, continuing their broad insights of social theory, noted that legal communities establish “institutionalized procedures for the settlement of questions of group concern”9 and regularize “different procedures and personnel of different qualifications . . . appropriate for deciding different kinds of questions”10 because “every modern society differentiates among social questions, accepting one mode of decision for one kind and other modes for others—e.g., courts for ‘judicial’ decisions and legislatures for ‘legislative’ decisions”11 and, extending their conceptualization, an executive for “executive” decisions.12 Third, Professors Hart and Sacks made seminal theoretical distinctions between rules, standards, principles, and policies.13 While all four are part of “legal arrangements in an organized society,”14 and all four of these arrangements are potentially relevant in judicial review of presidential national security decisions, principles and policies15 are of special concern because of the sprawling, inchoate, and rapidly changing nature of national security threats and the imperative of hyper-energy in the Executive branch in responding to these threats.16
The Justices should also consult Professor Robert S. Summers’s masterful elaboration and amplification of the Hart and Sacks project on enhancing a flourishing legal system: the 2006 opus, Form and Function in a Legal System: A General Study. 17 The most important points that Summers makes that are relevant to judicial review of American national security presiprudence are three key considerations. First, a “conception of the overall form of the whole of a functional [legal] unit is needed to serve the founding purpose of defining, specifying, and organizing the makeup of such a unit so that it can be brought into being and can fulfill its own distinctive role”18 in synergy with other legal units to serve overarching sovereign purposes for a polity. The American constitutional system of national security law and policy should be appreciated for its genius in making the POTUS the national security sentinel with vast, but not unlimited, powers to protect the Nation from hostile, potentially catastrophic, threats. Second, “a conception of the overall form of the whole is needed for the purpose of organizing the internal unity of relations between various formal features of a functional [legal] unit and between each formal feature and the complementary components of the whole unit.”19 Thus, Supreme Court Justices should have a thick understanding of the form of national security decisionmaking conceived by the Founders to center in the POTUS; the ways the POTUS and Congress historically organized the processing of national security through institutions like the National Security Council and the House and Senate intelligence committees; and the ways the POTUS has structured national security process through such specific legal forms as Presidential Directives, National Security Decision Directives, National Security Presidential Decision Directives, Presidential Decision Directives, and National Security Policy Directives in classified, secret documents along with typically public Executive Orders.20 Third, according to Summers, “a conception of the overall form of the whole functional [legal] unit is needed to organize further the mode of operation and the instrumental capacity of the [legal] unit.”21 So, the Supreme Court should be aware that tinkering with national security decisions of the POTUS—unless clearly necessary to counterbalance an indubitable violation of the text of the Constitution—may lead to unforeseen negative second-order consequences in the ability of the POTUS (with or without the help of Congress) to preserve, protect, and defend the Nation.22
B. Geopolitical Strategic Considerations Bearing on Judicial Interpretation
Before the United States Supreme Court Justices form an opinion on the legality of national security decisions by the POTUS, they should immerse themselves in judicially-noticeable facts concerning what national security expert, Bruce Berkowitz, in the subtitle of his recent book, calls the “challengers, competitors, and threats to America’s future.”23 Not that the Justices need to become experts in national security affairs,24 but every Supreme Court Justice should be aware of the following five basic national security facts and conceptions before sitting in judgment on presiprudential national security determinations.
(1) “National security policy . . . is harder today because the issues that are involved are more numerous and varied. The problem of the day can change at a moment’s notice.”25 While “[y]esterday, it might have been proliferation; today, terrorism; tomorrow, hostile regional powers”26, the twenty-first century reality is that “[t]hreats are also more likely to be intertwined—proliferators use the same networks as narcotraffickers, narco-traffickers support terrorists, and terrorists align themselves with regional powers.”27
(2) “Yet, as worrisome as these immediate concerns may be, the long-term challenges are even harder to deal with, and the stakes are higher. Whereas the main Cold War threat—the Soviet Union—was brittle, most of the potential adversaries and challengers America now faces are resilient.”28
(3) “The most important task for U.S. national security today is simply to retain the strategic advantage. This term, from the world of military doctrine, refers to the overall ability of a nation to control, or at least influence, the course of events.”29 Importantly, “[w]hen you hold As further serious preparation for engaging in the jurisprudence of American national security presiprudence in hotly contested cases and controversies that may end up on their docket, our Supreme Court Justices should understand that, as Walter Russell Mead pointed out in an important essay a few years ago,35 the average American can be understood as a Jacksonian pragmatist on national security issues.36 “Americans are determined to keep the world at a distance, while not isolating ourselves from it completely. If we need to take action abroad, we want to do it on our terms.”37 Thus, recent social science survey data paints “a picture of a country whose practical people take a practical approach to knowledge about national security. Americans do not bother with the details most of the time because, for most Americans, the details do not matter most the time.”38 Indeed, since the American people “do know the outlines of the big picture and what we need to worry about [in national security affairs] so we know when we need to pay greater attention and what is at stake. This is the kind of knowledge suited to a Jacksonian.”39
Turning to how the Supreme Court should view and interpret American presidential measures to oversee national security law and policy, our Justices should consider a number of important points. First, given the robust text, tradition, intellectual history, and evolution of the institution of the POTUS as the American national security sentinel,40 and the unprecedented dangers to the United States national security after 9/11,41 national security presiprudence should be accorded wide latitude by the Court in the adjustment (and tradeoffs) of trading liberty and security.42 Second, Justices should be aware that different presidents institute changes in national security presiprudence given their unique perspective and knowledge of threats to the Nation.43 Third, Justices should be restrained in second-guessing the POTUS and his subordinate national security experts concerning both the existence and duration of national security emergencies and necessary measures to rectify them. “During emergencies, the institutional advantages of the executive are enhanced”;44 moreover, “[b]ecause of the importance of secrecy, speed, and flexibility, courts, which are slow, open, and rigid, have less to contribute to the formulation of national policy than they do during normal times.”45 Fourth, Supreme Court Justices, of course, should not give the POTUS a blank check—even during times of claimed national emergency; but, how much deference to be accorded by the Court is “always a hard question” and should be a function of “the scale and type of the emergency.”46 Fifth, the Court should be extraordinarily deferential to the POTUS and his executive subordinates regarding questions of executive determinations of the international laws of war and military tactics. As cogently explained by Professors Eric Posner and Adrian Vermeule,47 “the United States should comply with the laws of war in its battle against Al Qaeda”—and I would argue, other lawless terrorist groups like the Taliban—“only to the extent these laws are beneficial to the United States, taking into account the likely response of other states and of al Qaeda and other terrorist organizations,”48 as determined by the POTUS and his national security executive subordinates.
Breaking deference destroys foreign military ops – causes diplomatic failure and intelligence breakdown/Judicial adjudication fails – decentralization, lack of expertise, and protracted decision-making.
Kristian Murray, Judge Advocate, U.S. Army, Chief, Admin. Law, U.S. Army Central Command, Operational Command Post, Kuwait, JD from Gonzaga Law School, Spring 2009, (“NATIONAL SECURITY VEILED IN SECRECY: AN ANALYSIS OF THE STATE SECRETS PRIVILEGE IN NATIONAL SECURITY AGENCY WIRETAPPING LITIGATION”, https://www.jagcnet.army.mil/DOCLIBS/MILITARYLAWREVIEW.NSF/0/132c6b43e1e6335d852575900049e74f/$FILE/Article%201%20-%20By%20MAJ%20Kristian%20W.%20Murray.pdf) - AW
2. National Security Matters Should Be Handled by the Executive
The Judiciary is not better equipped than the Executive or Congress to handle foreign policy or national security matters. The Judiciary is decentralized, has a time-consuming adjudication process, and lacks expertise in the areas of foreign policy and national security.220 Conversely, the Executive acts with a unified voice in security-related matters, has a relatively quick decision and implementation process, and possesses the requisite knowledge and expertise in national security issues. Most importantly, the Executive has a constitutional responsibility to protect the United States.221
There are ninety-four district courts, nine circuit courts, and one Supreme Court.222 Until appellate courts have adjudicated a matter, each of the district courts can have a differing opinion on a legal issue. This system works well for criminal or civil matters litigated in the respective district courts, as the courts are able to adjudicate matters relatively quickly within their jurisdictions without having to report to a higher authority. However, this decentralized system would be ineffective in adjudicating national security cases involving the invocation of the state secrets privilege. Commentators have argued that our nation’s forefathers framed the Constitution specifically to ensure that our government speaks with one voice in the context of foreign relations.223 Indeed, the district court’s ruling in ACLU v. NSA, enjoining the NSA from conducting further terrorist electronic surveillance, aptly demonstrates the danger of allowing courts to adjudicate foreign policy matters.224 If the state secrets privilege were eliminated, cases involving legitimate government security programs such as the terrorist surveillance program could be subject to lengthy and arbitrary litigation in multiple district courts. Without the privilege, it would be very difficult for our intelligence community to engage in secret operations. This would have profound national security ramifications as government intelligence could be subject to judicial activism.
However, assume for the sake of argument that the Executive is running a secret program that is blatantly unconstitutional and is in violation of applicable statutes, but is important to national security. Assume also that the program originates from this country with support of private corporations, but also receives technical support from other countries such as Pakistan and India. Further, the program receives unofficial support from operatives in Iran and Saudi Arabia who secretly route information originating from those countries to the American government.
If this program were to be fully exposed in a judicial forum it likely would cause major diplomatic issues, damage national security through the exposure of methods, means, and sources, and jeopardize foreign country operatives. It would also risk the possibility of private industries failing to cooperate with the government in future operations to thwart national security threats. Under these circumstances, it seems reasonable that a court would uphold the Government’s assertion of the state secrets privilege.
They Say: “Surveillance Isn’t a War Power”
The executive still has constitutional authority over surveillance – Vesting Clause of Article II proves.
Lawson 08 – Gary, Professor, Boston University School of Law, 2008 (“WHAT LURKS BENEATH: NSA SURVEILLANCE AND EXECUTIVE POWER,” Symposium: The Role of the President in the Twenty-First Century (88 B.U. L. Rev. 375) Available Online to Subscribing Institutions via HeinOnline)
My basic contention is that the President's constitutional power4 stems entirely from two provisions in the Constitution: the provision in Article 1, Section 7 which gives the President the presentment and veto power 5 and the first sentence of Article II, Section 1 which states that "[t]he executive Power shall be vested in a President of the United States of America."' 6 The second half of this statement is the eye of the storm. No one doubts that the Presentment Clause is a grant of power to the President, but the idea that the President draws power from the "Vesting Clause" of Article II rather than from the specific enumerations of presidential functions in Sections 2 and 3 of Article II - an idea that will henceforth be called "the Article II Vesting Clause thesis' 7 - is one of the most hotly debated propositions in modem constitutional law.8
The debate turns out to be remarkably one-sided upon careful consideration: the Vesting Clause grants power to the President beyond a reasonable doubt. To be sure, there are plenty of reasonable doubts about the scope and character of the power granted to the President by the Article II Vesting Clause, but the proposition that the Constitution itself grants something called "[t]he executive Power"9 to the President is a slam dunk as a matter of textual, linguistic, intratextual, and structural analysis.
Once the Article II Vesting Clause is seen as a grant of power, the proper framework for evaluating the legality of presidentially-ordered surveillance of foreign communications becomes clear. Without the Article II Vesting Clause thesis, the case for the legality of the current surveillance program is dicey at best. With the Article II Vesting Clause thesis, the case for the legality of the program, while not unanswerable, is very strong, at least as a matter of original constitutional meaning.' 0 Accordingly, the Article II Vesting Clause thesis should be front and center in any discussion of the National Security Agency ("NSA") surveillance controversy for which the original meaning of the Constitution is deemed relevant.
The President’s War Powers authorize covert surveillance — history abounds with examples.
Yoo 14 — John Yoo, UC Berkeley Law Professor, former Deputy Assistant U.S. Attorney General in the Office of Legal Counsel at the Department of Justice under President GW Bush, 2014 (“Surveillance and executive power,” Constitution Daily, October 3rd, Available Online at http://blog.constitutioncenter.org/2014/10/surveillance-and-executive-power/, Accessed 06-07-2015)
As Commander-in-Chief, the President has the constitutional power and the responsibility to wage war in response to a direct attack against the United States.
In the Civil War, President Lincoln undertook several actions—raised an army, withdrew money from the treasury, launched a blockade—on his own authority in response to the Confederate attack on Fort Sumter, moves that Congress and the Supreme Court later approved.
During World War II, the Supreme Court similarly recognized that once war began, the President’s authority as Commander-in-Chief and Chief Executive gave him the tools necessary to effectively wage war.
In the wake of the September 11 attacks, Congress agreed that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States,” which recognizes the President’s authority to use force to respond to al Qaeda, and any powers necessary and proper to that end.
Even legal scholars who argue against this historical practice concede that once the United States has been attacked, the President can respond immediately with force.
The ability to collect intelligence is intrinsic to the use of military force. It is inconceivable that the Constitution would vest in the President the powers of Commander-in-Chief and Chief Executive, give him the responsibility to protect the nation from attack, but then disable him from gathering intelligence to use the military most effectively to defeat the enemy.
Every evidence of the Framers’ understanding of the Constitution is that the government would have every ability to meet a foreign danger. As James Madison wrote in The Federalist, “security against foreign danger is one of the primitive objects of civil society.” Therefore, the “powers requisite for attaining it must be effectually confided to the federal councils.”
After World War II, the Supreme Court declared, “this grant of war power includes all that is necessary and proper for carrying these powers into execution.” Covert operations and electronic surveillance are clearly part of this authority.
During the writing of the Constitution, some Framers believed that the President alone should manage intelligence because only he could keep secrets.
Several Supreme Court cases have recognized that the President’s role as Commander-in-Chief and the sole organ of the nation in its foreign relations must include the power to collect intelligence.
These authorities agree that intelligence rests with the President because its structure allows it to act with unity, secrecy, and speed.
Presidents have long ordered electronic surveillance without any judicial or congressional participation.
More than a year before the Pearl Harbor attacks, but with war clearly looming with the Axis powers, President Franklin Roosevelt authorized the FBI to intercept any communications, whether wholly inside the country or international, of persons “suspected of subversive activities against the Government of the United States, including suspected spies.”
FDR was concerned that “fifth columns” could wreak havoc with the war effort. “It is too late to do anything about it after sabotage, assassinations and ‘fifth column’ activities are completed,” FDR wrote in his order.
FDR ordered the surveillance even though a federal law at the time prohibited electronic surveillance without a warrant.
Presidents continued to monitor the communications of national security threats on their own authority, even in peacetime.
If Presidents in times of peace could order surveillance of spies and terrorists, executive authority is only the greater now, as hostilities continue against al Qaeda.
Even if they’re right, presidential precedent treats NSA surveillance as an Article II war power.
Levy 6 — Robert Levy, senior fellow in constitutional studies and chairman of the Board of Directors at the Cato Institute, director of the Institute for Justice, the Foundation for Government Accountability, J.D. and Ph.D. in business, former professor of law at Georgetown, 2006 (“Wartime Executive Power: Are Warrantless Wiretaps Legal?,” The Freeman, a publication of the Foundation for Economic Education, drawn from his testimony before the Senate Judiciary Committee, August 1st, Available Online at http://fee.org/freeman/detail/wartime-executive-power-are-warrantless-wiretaps-legal/, Accessed 05-29-2015)
President Bush has authorized the National Security Agency (NSA) to eavesdrop, without obtaining a warrant, on telephone calls, e-mails, and other communications between U.S. persons in the United States and persons outside the United States. For understandable reasons, the operational details of the NSA program are secret, as are the details of the executive order that authorized the program. But Attorney General Alberto Gonzales has stated that surveillance can be triggered if an executive-branch official has reasonable grounds to believe that a communication involves a person “affiliated with al-Qaeda or part of an organization or group that is supportive of al-Qaeda.”
The attorney general has declared that the President’s authority rests on the post-9/11 Authorization for Use of Military Force (AUMF) and the president’s inherent wartime powers under Article II of the U.S. Constitution, which includes authority to gather “signals intelligence” on the enemy.
My conclusions, as elaborated below, are: First, the president has some latitude under the “Executive Power” and “Commander-in-Chief” Clauses of Article II, even lacking explicit congressional approval, to authorize NSA warrantless surveillance without violating Fourth Amendment protections against “unreasonable” searches. But second, if Congress has expressly prohibited such surveillance (as it has under FISA, the Foreign Intelligence Surveillance Act), then the statute binds the president unless there are grounds to conclude that the statute does not apply. Third, in the case at hand, there are no grounds for such a conclusion—that is, neither the AUMF nor the president’s inherent powers trump the express prohibition in the FISA statute.