Orin Kerr has an interesting post at Volokh about changes in the law after 9/11. While I think he downplays the significance of some of the legal changes in the Patriot Act (while others vastly overplay them), I think he's right that the key legal question at this point concerns the Bush administration's claims of inherent Article 2 authority to do virtually anything it deems necessary in the name of national security. I'll paste a fairly long quote after the fold:
The key thing that has changed, it seems to me, is primarily the nature of the claims of executive authority that the Administration has made since 9/11. Some of these claims were made out in the open, such as claims relating to the detention of enemy combatants. Others were made in secret, such as the constitutional and statutory claims justifying the NSA domestic surveillance program. If you're going to assess the impact of 9/11 on the law, it seems to me that one of the big and difficult issues to consider is the future of these arguments. In 10 years, or 20 years, are the strong Article II claims going to be accepted as a basic part of the constitutional separation of powers? Or are they going to be thought of as a relic of particular figures from the Bush Administration?We don't yet know the answer to that, of course. If I had to guess, though, I would guess that the latter is probably more likely than the former. I suspect there is only one vote on the current Supreme Court for the strong Article II theory. Further, my sense is that the existing political constituency for a strong view of Article II is a short-term constituency; it presumably ends as soon as a Democrat is elected President. (When Hillary becomes Commander-in-Chief in 2012, will the folks at Powerline Blog zealously defend the Commander-in-Chief power?) Given that, it would not be surprising to me if today's debates over Article II prove somewhat short-lived.
I certainly hope his prediction turns out to be correct. I can't say that I'm quite so encouraged. I think the courts have made it pretty clear that Bush's theories concerning habeas corpus are not gonna fly. Even Scalia smacked him down hard and said in no uncertain terms that the President does not have the authority to suspend habeas corpus and hold an American citizen indefinitely without filing charges and giving them their day in court. Thank goodness for that.
But on the question of the NSA programs, I'm not so hopeful. I can envision the Supreme Court accepting the administration's invocation of the state secret privilege as a way to eliminate any possible court challenge to the prgram, either on standing grounds or on broader grounds. I think there is likely a solid 4 votes on the Court for that position (I'm speculating, of course, as I'm not aware of any actual rulings on that question from the current Court members). And I think that would be a disaster for the country.
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Prof. Kerrs' article is a little confusing relative to Hilary becomming commander in chief in 2012. I thought there was an election to be held in 2008. Who does he expect to win that one?
The worrisome thing is that if Hillary is elected president, her lawyers will take all the Bush team has done as precedent to build upon, just as the Bush team did with Clinton's past work. It is the nature of presidential administrations to find ways and arguments to extend the reach of executive power. That is so inherent to the short-term goals of whoever holds that office for four or eight years, especially given that precedent is the one of their chief guides in how to perform their new position, that it is almost impossible to imagine the politician who simultaneously wins that office and rejects as invalid existing presidential powers. Worse, the longer such powers are practiced, the more that precedent in itself becomes an argument when such powers become subject to court review.
Russell-
Very true. It is exceedingly rare for the government to take away powers it tried to give itself. One of the few instances I can think of is when Jefferson reversed Adams' position on the Sedition act.
I think that the question about the future of these presidential arguments (whether they get reversed, or become entrenched and built upon) depends in good measure of another question, which I'm utterly unable to fathom. Namely, the question of how much of the current developments can be attributed to a small cabal of evil neocons, and how much is due to bigger, impersonal trends in the way the US government relates to the people, the elites, and the world. Cesar was murdered, and yet there was Empire.