Tag Archives: Executive Privilege

The Wasp’s Nest: Intelligence Community Whistleblowing & Source Protection

Meyer and Berenbaum analyze the national security policy challenge in balancing protections for Intelligence Community whistleblowers and the government’s legitimate need for secrecy in order to execute the federal intelligence and counterintelligence mission. It is that need for secrecy that creates the intellectual distance between the sovereign’s requirement for information regarding the performance of the federal intelligence and counterintelligence mission and the ability to conduct that mission.

Assessing the Leakers: Criminals or Heroes?

David Cole, expanding on his recent piece in The New York Review of Books, considers the perpetrators of the major intelligence leaks currently dominating the headlines: Edward Snowden, Bradley (now Chelsea) Manning, and Julian Assange. Cole reviews the actions and avowed motivations of these individuals—noting their similarities and differences—while subjecting each situation to legal analysis. Cole acknowledges the complex justifications on all sides, ultimately drawing out complicated questions of civic responsibility on the part of leakers and American society.

Can the President and Congress Establish a Legislative Veto Mechanism for Jointly Drawing Down a Long and Controversial War?

To find a joint way to draw down the American troops in the war zone, Congress and the President may seek congressional mechanisms to resolve their differences with interactive processes. Then, constitutional issues arise as to whether a congressional mechanism may use a legislative veto – authorization for a drawdown with a reservation of power for a vote by the two Houses of Congress so as to let the President draw down troop levels while reserving congressional power to stop that draw down.  These issues illuminate war powers in the abstract; the issues also apply concretely to the main war of the 2010s, namely, the long war in Afghanistan.

Basic Principles of the War Power

The Framers of the U.S. Constitution assigned to Congress many of the powers of external affairs previously vested in the English king. That allocation of authority is central to America’s democratic and constitutional system. When decisions about armed conflict, whether overt or covert, slip from the elected members of Congress, the principles of self-government and popular sovereignty are undermined. Political power shifts to an executive branch with two elected officials and a long history of costly, poorly conceived military commitments. The Framers anticipated and warned against the hazards of Executive wars. In a republican form of government, the sovereign power rests with the citizens and the individuals they elect to public office. Congress alone was given the constitutional authority to initiate war.

Legislative control over external affairs took centuries to develop. The English Parliament gained the power of the purse in the 1660s to restrain the king, but the power to initiate war remained a monarchical prerogative. In his Second Treatise on Civil Government (1690), John Locke identified three functions of government: legislative, executive, and “federative.” The last embraced “the power of war and peace, leagues and alliances, and all the transactions with all persons and communities without the commonwealth.”  To Locke, the federative power (what today we call foreign policy) was “always almost united” with the Executive. Any effort to separate the executive and federative powers, he counseled, would invite “disorder and ruin.”

The Great War Powers Misconstruction

The term “war” is found at four locations in our Constitution. However, the word alone signals nothing about the powers of the two political branches the Constitution creates, executive and legislative, and nowhere in the Constitution does the term “war powers” appear. At some point in our history, the word “powers” was coupled with “war.” There has ensued a continuing argument about who, as between the President and Congress, owns those powers. But little or no attention has been given to just what powers are being discussed, and no attention at all has been given to what the Constitution itself says about those powers. Yet, a close examination of the Constitution readily reveals the answers. Congress owns all of the powers to create and field a military (no matter how the powers are defined), and the President has the executive authority. The involvement of the United States in multiple military conflicts, ultimately at the behest of the President and not the Congress, is evidence that currently both the executive and legislative branches operate contrary to the mandates of the Constitution. Thus, the notion of war powers must be reconsidered.