The Candidates on War Powers, Executive Privilege, Signing Statements, Etc.

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Saturday, December 22, 2007

The Candidates on War Powers, Executive Privilege, Signing Statements, Etc.

Marty Lederman

I don't want to distract our readers from the very important story about the Administration's stonewalling of the 9/11 Commission -- read about the New York Times's essential story and the Zelikow Report here -- but this is very much worth your attention, too:

Continuing his invaluable work, Charlie Savage of the Boston Globe today publishes responses of nine presidential candidates to a series of questions he posed about the topics that have dominated this blog since 2004.

Some highlights:

On the Democratic side, Senators Clinton and Obama both disclaim any presidential authority to disregard statutes and treaties such as the torture act, FISA, statutes imposing troop limits, and the Geneva Conventions. Senators Biden and Dodd, and Governor Richardson, agree, except that Governor Richardson adds that the President can disregard statutory limits "in some limited circumstances, such as where it is necessary to protect the troops on the ground or to repel an attack not contemplated by the congressional directive." Senator Edwards strongly believes that President Bush should not have disregarded (or threatened to disregard) such laws; but he does not quite clearly answer the questions about constitutional power.

Senators Clinton and Obama both state that the President does not have the inherent constitutional power to unilaterally take military action against Iran, including strategic bombing, in the absence of an imminent threat of attack on the U.S. or its citizens. Senator Biden and Governor Richardson agree. Senator Dodd does, too, but adds that the President can act unilaterally if there is an imminent threat to the "national security" of the U.S. or its allies. Senator Edwards does not answer the question directly, but opposes the use of force in Iran.

Interestingly, both Senator Clinton and Senator Obama -- as well as Senators Biden and Dodd, and Governor Richardson -- answer "no" to the question whether the Constitution permits a President to detain U.S. citizens without charges as unlawful enemy combatants. Senator Obama qualifies that the President has no such "plenary" power. To the extent any of the candidates is here suggesting that such detention would be unconstitutional even where Congress has authorized it, such a view would amount to a dissent from the Supreme Court's holding in Hamdi -- perhaps on the Suspension Clause grounds expressed by Justice Scalia, or perhaps because of the Treason or Due Process Clauses (or some combination thereof). But the Q's and A's on this point are not precise enough to nail this down.

Senators Biden and Dodd, and Governor Richardson, like John McCain (see below), state that they would never issue signing statements with constitutional objections to statutory provisions. I think this is a mistake, and that the views of Senators Clinton and Obama are closer to the proper mark.

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