By Charlie Savage

Boston Globe Staff / December 20, 2007

1. Does the president have inherent powers under the Constitution to conduct surveillance
for national security purposes without judicial warrants, regardless of federal statutes?

The Supreme Court has never held that the president has such powers. As president, I will follow
existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for
national security purposes consistent with FISA and other federal statutes.

While Barack Obama’s answer is true, that the Supreme Court has never held that the president
has such powers, his answer is incomplete and does not address the question. The Supreme
Court has also never held that the president does not have such powers. The Supreme Court has
never ruled on the constitutionality of warrantless searches that target foreign powers or their
agents within the U.S.

However, a number of Circuit Court rulings have held that warrantless searches that target foreign
powers or their agents within the U.S. are constitutional.1 In 2002, the U.S. Foreign Intelligence
Surveillance Court of Review met for the first time and issued an opinion which upheld the
Executive’s inherent power under Article II of the U.S. Constitution to conduct surveillance for
national security purposes without judicial warrants, and that this inherent power may not be
encroached upon by statutory law.2

2. In what circumstances, if any, would the president have constitutional authority to bomb
Iran without seeking a use-of-force authorization from Congress? (Specifically, what about
the strategic bombing of suspected nuclear sites -- a situation that does not involve
stopping an IMMINENT threat?)

The President does not have power under the Constitution to unilaterally authorize a military
attack in a situation that does not involve stopping an actual or imminent threat to the nation.

As Commander-in-Chief, the President does have a duty to protect and defend the United States.
In instances of self-defense, the President would be within his constitutional authority to act before
advising Congress or seeking its consent. History has shown us time and again, however, that
military action is most successful when it is authorized and supported by the Legislative branch. It
is always preferable to have the informed consent of Congress prior to any military action.

1
See United States v. Clay, 430 F.2d 165, 171 (5th Cir.1970); United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973);
United States v. Butenko, 494 F.2d 593, 605 (3d Cir.1974); United States v. Buck, 548 F.2d 871, 875 (9th Cir.1977);
United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir.1980)
2
United States Foreign Intelligence Court of Review, Transcripts of Hearing on Docket No. 02-001, September 9, 2002.
 As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res.
23, which states in part that “any offensive military action taken by the United States against Iran
must be explicitly authorized by Congress.” The recent NIE tells us that Iran in 2003 halted its
effort to design a nuclear weapon. While this does not mean that Iran is no longer a threat to the
United States or its allies, it does give us time to conduct aggressive and principled personal
diplomacy aimed at preventing Iran from developing nuclear weapons.

Barak Obama is correct; there is no power under the U.S. Constitution that would allow a
President to authorize a military attack without seeking a use-of-force authorization from Congress
first. When Sen. Obama asserts that the President would be within his constitutional authority to
act before advising Congress or seeking its consent in regard to self-defense, he is making an
implied reference to the War Powers Act of 1973. The constitutionality of this act has never been
tested because no President has ever evoked the act. Article I, Section 8, Clause 11 of the U.S.
Constitution gives Congress the exclusive power to declare wars, and this power can not be
abrogated, or delegated to the President, by statute. This makes the War Powers Act
constitutionally dubious at best.

3. Does the Constitution empower the president to disregard a congressional statute limiting
the deployment of troops -- either by capping the number of troops that may be deployed
to a particular country or by setting minimum home-stays between deployments? In other
words, is that level of deployment management beyond the constitutional power of
Congress to regulate?

No, the President does not have that power. To date, several Congresses have imposed
limitations on the number of US troops deployed in a given situation. As President, I will not assert
a constitutional authority to deploy troops in a manner contrary to an express limit imposed by
Congress and adopted into law.

Sen. Obama is incorrect. Under Article II, Section 2, Clause 1 of the U.S. Constitution the
President is the Commander-in-Chief of the Army and Navy of the U.S. and that inherent
constitutional power can not be usurped by statutory law. Congress’ constitutional authority
concerning the military is provided under Article I, Section 8, Clauses 12, 13, 15, and 16, and
limits Congress’ constitutional powers to providing and supporting the Army and Navy, their
organization, equipment, and training. The U.S. Constitution does not give Congress the authority
to assume powers granted to the President by stipulating the number to be deployed or how many
must remain within the U.S between deployments. Congress’ constitutional power over the
military stops at determining the overall number, organization, training, equipping, and funding of
the military.

4. Under what circumstances, if any, would you sign a bill into law but also issue a signing
statement reserving a constitutional right to bypass the law?

Signing statements have been used by presidents of both parties, dating back to Andrew Jackson.
While it is legitimate for a president to issue a signing statement to clarify his understanding of
ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute
the law, it is a clear abuse of power to use such statements as a license to evade laws that the
president does not like or as an end-run around provisions designed to foster accountability.
 I will not use signing statements to nullify or undermine congressional instructions as enacted into
law. The problem with this administration is that it has attached signing statements to legislation in
an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the
legislation that the President does not like, and to raise implausible or dubious constitutional
objections to the legislation. The fact that President Bush has issued signing statements to
challenge over 1100 laws – more than any president in history – is a clear abuse of this
prerogative. No one doubts that it is appropriate to use signing statements to protect a president's
constitutional prerogatives; unfortunately, the Bush Administration has gone much further than
that.

Sen. Obama is incorrect on two counts. First, signing statements date back to President James
Monroe, not Andrew Jackson. Second, there are three cases when a President may use a
signing document to accompany the legislation:

” On constitutional grounds, when the law violates the constitution, as a procedure for
executive agencies to limit the implementation of the law;
” On political grounds, where vague terms in the law are used to guide executive agencies in
limiting the implementation of the law; and
” On rhetorical grounds, that uses the signing of the law to rally political constituents.

The U.S. Supreme Court3 held that in matters that are ambiguous in statute, and where the
President’s interpretation is reasonable, that the court should defer to the President’s
interpretation. Furthermore, in a memorandum from Bernard N. Nussbaum4 he states:

“More boldly still, the President may declare in a signing statement that a provision
of the bill before him is flatly unconstitutional, and that he will refuse to enforce it.
This species of statement merits separate discussion.”

“In each of the last three Administrations, the Department of Justice has advised the
President that the Constitution provides him with the authority to decline to enforce a
clearly unconstitutional law. This advice is, we believe, consistent with the views of
the Framers. Moreover, four sitting Justices of the Supreme Court have joined in the
opinion that the President may resist laws that encroach upon his powers by
"disregard[ing] them when they are unconstitutional." Freytag v. C.I.R., 111 S. Ct.
2631, 2653 (1991) (Scalia, J., joined by O'Connor, Kennedy and Souter, JJ.,
concurring in part and concurring in judgment).”

3
Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984)
4
Memorandum from Bernard N. Nussbaum, Counsel to the President, entitled “Legal Significance of Presidential Signing
Statements”, November 3, 1993 (http://www.usdoj.gov/olc/signing.htm)
 “If the President may properly decline to enforce a law, at least when it
unconstitutionally encroaches on his powers, then it arguably follows that he may
properly announce to Congress and to the public that he will not enforce a provision
of an enactment he is signing. If so, then a signing statement that challenges what
the President determines to be an unconstitutional encroachment on his power, or
that announces the President's unwillingness to enforce (or willingness to litigate)
such a provision, can be a valid and reasonable exercise of Presidential authority.
And indeed, in a recent decision by the United States Court of Appeals for the
District of Columbia Circuit, Federal Election Comm'n v. NRA Political Victory Fund,
supra, the court cited to and relied upon a Presidential signing statement that had
declared that a Congressionally-enacted limitation on the President's constitutional
authority to appoint officers of the United States was without legal force or effect. Id.
at * 11.”

Lastly, in Meyers v. U.S., 272 U.S. 52, (1926), where the President refused to comply with an Act
of Congress on the grounds that the act was unconstitutional, the U.S. Supreme Court ruled that
the President’s actions in defiance of the statute had been lawful.

5. Does the Constitution permit a president to detain US citizens without charges as unlawful
enemy combatants?

No. I reject the Bush Administration's claim that the President has plenary authority under the
Constitution to detain U.S. citizens without charges as unlawful enemy combatants.

Senator Obama is incorrect. The 5th Amendment clearly lists the exceptions when a U.S. citizen
may be detained without charges:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury, except in cases arising in the land
or naval forces, or in the Militia, when in actual service in time of War or public
danger; [emphasis added] nor shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be
a witness against himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without just
compensation.”

6. Does executive privilege cover testimony or documents about decision-making within the
executive branch not involving confidential advice communicated to the president himself?

With respect to the “core” of executive privilege, the Supreme Court has not resolved this
question, and reasonable people have debated it. My view is that executive privilege generally
depends on the involvement of the President and the White House.

This generalization cannot be rebutted or confirmed because Sen. Obama does not answer the
question.
7. If Congress defines a specific interrogation technique as prohibited under all
circumstances, does the president's authority as commander in chief ever permit him to
instruct his subordinates to employ that technique despite the statute?

No. The President is not above the law, and the Commander-in-Chief power does not entitle him
to use techniques that Congress has specifically banned as torture. We must send a message to
the world that America is a nation of laws, and a nation that stands against torture. As President I
will abide by statutory prohibitions, and have the Army Field Manual govern interrogation
techniques for all United States Government personnel and contractors.

Senator Obama is mistaken. As mentioned in Question/Answer #3 above, Congress cannot

usurp a power granted to the President by under Article II of the U.S. Constitution through
statutory law. Also, as noted in Question/Answer #4, the President has the lawful authority to
create a signing statement accompanying the act that identifies the unconstitutional portions of the
law and to defy such provisions.

8. Under what circumstances, if any, is the president, when operating overseas as

commander-in-chief, free to disregard international human rights treaties that the US
Senate has ratified?

It is illegal and unwise for the President to disregard international human rights treaties that have
been ratified by the United States Senate, including and especially the Geneva Conventions. The
Commander-in-Chief power does not allow the President to defy those treaties.

The last time I checked, al Qaeda was not a signatory to the Geneva Convention. The Geneva
Convention Treaty applies to the treatment and conduct of the military of different nations. It does
not address unlawful armed combatants, terrorists, or any individual who is not directly associated
with one of the governments who ratified this treaty. Senator Obama is correct in that it is illegal
for any President to disregard any ratified treaty. However, President Bush is not, and has not,
disregarded the Geneva Convention Treaty. The treaty simply does not apply.

9. Do you agree or disagree with the statement made by former Attorney General Gonzales in
January 2007 that nothing in the Constitution confers an affirmative right to habeas
corpus, separate from any statutory habeas rights Congress might grant or take away?

Disagree strongly.

Senator Obama is mistaken, yet again. Article I, Section 9, Clause 2 of the U.S. Constitution
states:

“The Privilege [emphasis added] of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public Safety may
require it.”

Attorney General Gonzales was correct, nothing in the U.S. Constitution confers an “affirmative
right” to Habeas Corpus. As the U.S. Constitution plainly states, the Writ of Habeas Corpus is a
privilege which may be taken away or suspended.
10. Is there any executive power the Bush administration has claimed or exercised that you
think is unconstitutional? Anything you think is simply a bad idea?

First and foremost, I agree with the Supreme Court's several decisions rejecting the extreme
arguments of the Bush Administration, most importantly in the Hamdi and Hamdan cases. I also
reject the view, suggested in memoranda by the Department of Justice, that the President may do
whatever he deems necessary to protect national security, and that he may torture people in
defiance of congressional enactments. In my view, torture is unconstitutional, and certain
enhanced interrogation techniques like “waterboarding” clearly constitute torture. And as noted, I
reject the use of signing statements to make extreme and implausible claims of presidential
authority.

In the Hamdan v. Rumsfeld case that Sen. Obama refers, the court merely concluded that there
can be no military commission without congressional approval. In other words, the Executive
Branch does not have the constitutional authority to establish a military court. Article III, Section 1,
Clause 1 of the U.S. Constitution gives Congress the power to establish the courts, not the
Executive Branch.

As to what Sen. Obama considers “torture”, I have no idea. It is a vague and highly subjective
term that can be used to manipulate the feelings of others. “Torture” itself is not mentioned in the
U.S. Constitution, but the 8th Amendment does mention prohibiting “cruel and unusual
punishment.” Sen. Obama appears to think “waterboarding” falls under the category of “cruel and
unusual punishment”. Yet every U.S. military member who has taken the Survival, Evasion,
Resistance, and Escape (SERE) training from the late 1960s to 1995 was subjected to
“waterboarding”, with congressional approval, and nobody ever considered such training as
“torture.” Literally tens of thousands of U.S. servicemen and women have been subjected to
“waterboarding” as part of their military training over 30 years, and yet it suddenly becomes
“torture” when Senator Barak becomes aware of the practice. Since Senator Barak wants to
redefine torture, perhaps he will consider adding the music from Cher to his list of torture
techniques. I am sure we would all be grateful.

Some further points:

The detention of American citizens, without access to counsel, fair procedure, or pursuant to
judicial authorization, as enemy combatants is unconstitutional.

As pointed out previously, the 5th Amendment does allow for a U.S. citizen to be held indefinitely
without being charged, and therefore is not unconstitutional.

Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and

unconstitutional.

Warrantless surveillance that target foreign powers or their agents within the U.S. are
constitutional and an inherent constitutional power of the President under Article II of the U.S.
Constitution.

The violation of international treaties that have been ratified by the Senate, specifically the
Geneva Conventions, was illegal (as the Supreme Court held) and a bad idea.

The creation of military commissions, without congressional authorization, was unlawful (as the
Supreme Court held) and a bad idea.
No treaty has been violated, and the U.S. Supreme Court in Hamdan v. Rumsfeld never held that
any treaty was being violated. Once again, they held that the Executive Branch could not
establish a military court without the approval of Congress who constitutionally controls the
establishment of all courts within the U.S.

I believe the Administration’s use of executive authority to over-classify information is a bad idea.
We need to restore the balance between the necessarily secret and the necessity of openness in
our democracy – which is why I have called for a National Declassification Center.

Senator Obama makes another generalization without any substance. What material is being
classified that shouldn’t be? What is currently classified that shouldn’t be? Senator Obama is
grasping at straws when the reality is that he would behave precisely the same if he were
President of the United States.

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