The 2024 Executive Power Survey – Commander-in-Chief Power

The transfer of detainees from Guantánamo was an exchange of prisoners in a conflict, and therefore a valid exercise of the commander-in-chief power. The other actions by President Bush cited in the question were not lawful.

The question harkens, in part, to the N.Y.T.’s exposé of President Bush’s Executive Order 13228, which established the Terrorist Surveillance Program, which gave the N.S.A. broad authority to gather information on U.S. citizens without a judicial warrant. Of course, these actions by President Bush and the N.S.A. were unconstitutional, violations of the First, Fourth and Fifth Amendments at the least.

The C.I.A.’s use of torture was an unmitigated human rights disaster, an absolute abomination committed in the name of the United States of America, and must never happen again. It is the essential role of Congress, as a co-equal branch of government, to check executive power and the abuses of that power. Where the U.S. Constitution or the laws of the United States are explicit, the president is required to faithfully execute those laws, and cannot pick and choose at the whim and caprice of his legal advisers.

All of these actions were unlawful. According to the Constitution, the president must abide by laws and statutes. There are no circumstances in which the commander-in-chief clause crowns the president to disregard a congressional statute. Alexander Hamilton, the most vocal proponent of a muscular presidency, characterized the clause in “Federalist 69” as no more than a governor’s authority of a state militia. There can be no question that the Constitution would never have been ratified if the delegates at the state ratifying conventions believed the commander-in-chief clause was omnipotent.

It has become evident that post-9/11 surveillance measures have, at times, infringed on the rights of Americans. That’s why I put forward policies to rein in surveillance programs, increase transparency and enhance accountability as part of my federal law enforcement reform platform. It is crucial to strike a careful balance, ensuring our efforts to safeguard the nation do not compromise the privacy and rights of law-abiding citizens. As president, I will prioritize reviewing and refining surveillance practices, ensuring their compliance with the Constitution and subjecting them to proper oversight, to achieve a balance between security and civil liberties. The president’s commander-in-chief power should not be unconstitutionally constrained by Congress, but the use of that power to override federal statutes should be limited to the most exceptional and constitutionally justified circumstances.

In regard to the use of torture, you should note that I was a member of the Task Force on Detainee Treatment. The United States should not engage in torture of prisoners because it is against the values of the American spirit and torture was not proven to be the most effective means of gaining necessary intelligence.

FISA authorities are essential to our national security, but FISA has been grossly abused in recent years, and the legal guardrails that protect our liberties as Americans ignored. Presidents must follow the Constitution and the law, and as president, I will clean house at the Department of Justice and issue clear directives preventing such abuses. Anyone abusing those authorities and corruptly violating the liberties of Americans to achieve political ends should be terminated and prosecuted.

I will similarly end the Biden Department of Justice’s abusive investigations into parents who voice legitimate concerns about the woke indoctrination of our children at school board meetings, or trampling on religious freedoms by using the F.B.I. to spy on a group of people based on their religious beliefs as they did in Richmond, Va.

In some prior instances in which presidents relied on their inherent power to keep Americans safe, the statutes governing the exercise of that power were unclear. For that reason, I believe that the time has come for a careful codification of unclear areas of federal law governing national security powers, the legal rights of U.S. citizens, and the status of enemy combatants.

The main constraint is not a separation of powers issue but the Fourth Amendment. The Supreme Court has declined to rule on whether the Fourth Amendment covers foreign surveillance, so Congress enacted FISA to impose restrictions on presidential exercise of surveillance authority. However, I believe the Fourth Amendment covers foreign surveillance of Americans.