The Statutory Commander in Chief

question without reference to a factual context. The Memo undertakes to identify the permissible standards of conduct under 18 U.S.C. §§ 2340–2340A. See Torture Memo, supra note 7, at 1. It does not examine whether specified interrogation techniques are permissible. 142. In fact, this is sometimes offered as a defense of OLC. See Posner & Vermeule, supra note 29. 2006] THE STATUTORY COMMANDER IN CHIEF 1195 would no longer be bound by legal constraints, only by the limits of its lawyers’ imaginations. III. PRESCRIPTIONS FOR STATUTORY CONSTRUCTION: PONDERING THE IMPONDERABLES Statutory interpretation should proceed from a fulsome understanding of the way in which the Constitution structures government power and of the role that each branch is designed to play within that structure. The first constitutional protection for liberty is not individual rights, but the system of checks and balances. To operate effectively, each branch must be able to act as a check on the others. 143 An approach to statutory interpretation that privileges some aspects of the constitutional structure over others is bound to distort and undermine the effectiveness of the constitutional architecture. The rights/structure dichotomy threatens to work precisely this distortion. It would privilege the role and power of the presidency as well as individual rights. These are surely constitutional values of the first rank, but they are not alone. The role of Congress as an institutional check on presidential aggrandizement is vital. Moreover, the fundamental constitutional commitment to republican self-government can be largely located in Congress. The structure of Congress itself and its interaction with the President are designed to create an environment in which meaningful deliberation on the nation’s interest might take place. Congress is thus not only meant to be a vehicle for dampening the influence of faction; 144 it is also designed to improve the quality of government decision making by introducing a variety of occasions for deliberation. Finally, Congress is constitutionally designed to introduce openness to governmental decision making. 145 This openness, along with other aspects of Congress’s structure, 146 enhances public accountability and participation in the process of government decision making. These abstract structures play out in concrete circumstances. For example, in the controversy over the treatment of enemy prisoners, one military officer declared: Congress should have oversight of treatment of prisoners. That is the way; the Army should not take it upon itself to determine what is acceptable for America to do in regards to treatment of prisoners. That’s a value . . . that’s more than just a military decision, that’s a values decision, and therefore Congress needs to know about it, and therefore the American people need to have an honest representation of what’s going on presented to them so that they can have a say in that. 143. See THE FEDERALIST NOS. 47, 48, 51 (James Madison). 144. See, e.g., THE FEDERALIST NO. 51 (James Madison or Alexander Hamilton). 145. The Journal Clause embodies the constitutional presumption that congressional proceedings will be public, or at least a matter of public record. U.S. CONST. art. I, § 5, cl. 3. 146. The primary mechanism of accountability is the direct and frequent election of the House of Representatives. The Seventeenth Amendment, of course, expanded direct election to the United States Senate. This direct accountability and the resulting public participation in elections, campaigns, and the ongoing conduct of representatives in office is further buttressed by the First Amendment’s right of petition. 147. HUMAN RIGHTS WATCH, LEADERSHIP FAILURE: FIRSTHAND ACCOUNTS OF TORTURE OF IRAQI DETAINEES BY THE U.S. ARMY’S 82ND AIRBORNE DIVISION, Part IV (2005), available at http://hrw.org/reports/2005/us0905/. 1196 INDIANA LAW JOURNAL [Vol. 81:1169 The contrast between decision making by the executive alone and joint executivelegislative decision making is also illustrated in the current controversy over the NSA surveillance program. That program was devised in secret within the executive branch and for years was operated with no effective knowledge or oversight by, let alone meaningful input from, Congress. 148 As a result, the public had no input as to the program. It is sometimes said that in the context of the array of threats to national security that are referred to as the War on Terror, there is a trade-off to be made between liberty and security. That may be so, but the Constitution counsels that this is precisely the sort of fundamental decision that is to be made through deliberation by accountable governmental process. The specific statutory question raised by the NSA surveillance program is whether the surveillance must comply with the warrant procedures of FISA, or whether the AUMF creates an exception to FISA. The rights/structure dichotomy might come out either way. 149 The NSA surveillance program implicates individual rights, yet the AUMF does not contain anything like a clear statement authorizing the executive branch to engage in warrantless wiretapping even of international communications. On the other hand, deference to the President’s interpretation of his own power supports the validity of the program—or at least counsels interpretive restraint against declaring the program to be illegal. The rights/structure dichotomy’s war with itself ought to serve as a strong caution against it. But there is a deeper problem. Whether one comes down on the side of individual rights or on the side of presidential power, an approach that focuses only on individual rights and presidential power simply overlooks the role of Congress and all the important values that role supports. Thus, it may be that the public supports warrantless surveillance as a reasonable liberty trade-off, but that is beside the point. 150 Reading a statute to allow the President to make the decision alone and in secret, without the participation of Congress, conflicts with the fundamental commitments of our constitutional structure. These commitments are missing from the rights/structure dichotomy. 148. A small group of congressional leaders was personally briefed about the highly classified program, but they were not allowed to discuss it with anyone, including their own staffs. Senator Jay Rockefeller was left to handwrite a note to the President expressing his concerns, for want of the benefit of staff research or even secretarial assistance. 149. As, in fact, have its proponents. Professor Curtis Bradley signed a letter by prominent scholars and former executive officials challenging the validity of the NSA surveillance program. See Beth Nolan et al., On NSA Spying: A Letter to Congress, N.Y. REV. BOOKS (Feb. 9, 2006), available at http://www.nybooks.com/articles/18650. Professor Sunstein, on the other hand, has defended the program. See Postings of Cass Sunstein, Presidential Wiretapping, to The Faculty Blog, http://uchicagolaw.typepad.com/faculty/2005/12/presidential_wi.html#more (Dec. 19, 2005, 14:52 EST). 150. Current data on this issue presents a mixed picture. See Adam Nagourney & Janet Elder, New Poll Finds Mixed Support for Wiretaps, N.Y. TIMES, Jan. 27, 2006, at A1, available at http://www.nytimes.com/2006/01/27/politics/27poll.html?hp&ex=1138338000&en=34b 99413dcd9a25e&ei=5094&partner=homepage. 2006] THE STATUTORY COMMANDER IN CHIEF 1197