Benjamin Wittes Quotes
How exactly the obstruction-of-justice statutes interact with the president's broad powers to supervise the executive branch under Article II of the Constitution is a genuinely difficult question.
Wittes, Benjamin. "Obstruction of Justice and the Presidency." Lawfare, The Lawfare Institute, 2017.
President George W. Bush had ignored a federal law and tapped the phones of Americans without probable cause and a warrant issued by a court. The President’s defenders argued that the President, as Commander in Chief, has the Constitutional responsibility to lead the military and protect the nation. Intelligence gathering is part of military activity. Therefore the intelligence gathering is a Constitutional duty and the Congress, under the separation of powers doctrine, may not interfere with the President’s Constitutional Duty to conduct intelligence. Under this doctrine, the President need not obey laws that he believes impinge on his management of the war effort and the defense of the nation. Most legal scholars believe that this argument is nonsense, but the George W. Bush administration has stated the doctrine and it was the subject of much litigation.
Alberto Gonzalez, White House Counsel and later Attorney General who was forced to resign and David S. Addington, Counsel to the Vice President, had come up with a novel view of the powers of the presidency. They argued that since the President is the Commander in Chief, in a war situation or intelligence gathering thereto, has the Constitutional responsibility for that function, he need not obey any laws of Congress as in the conduct of the war Congress would be impinging on the Constitutional separation of powers which itself was prohibited by the Constitution. The argument did not find any significant legal support but for a while the George W. Bush White House behaved as if this were the law, despite the fact that even in the American Revolution and the War of 1812 Congress passed laws regulating the conduct of the armed forces as is provided for in other parts of the Constitution. Yet even Goldsmith would allow the President some powers that many think are unconstitutional and/or belong to Congress. See {32436}.
The President had authorized the NSA to spy Americans who might have been suspected of being themselves or being in contact with terrorists without obtaining permission of a court including the Foreign Intelligence Surveillance Act (FISA) special court that had been established for these cases. Instead the administration argues that it was inherent in the powers of the Presidency in time of war.
Hatch was the chairman of the Senate Judiciary Committee at the time.
Benjamin Wittes is an American legal journalist and Senior Fellow in Governance Studies at the Brookings Institution, where he is the Research Director in Public Law, and Co-Director of the Harvard Law School–Brookings Project on Law and Security. He works principally on issues related to American law and national security. Along with Robert M. Chesney and Jack Goldsmith, Wittes cofounded the Lawfare Blog. Wittes is also a member of the Hoover Institution's Task Force on National Security and Law. Wittes is a frequent speaker on topics of detention, interrogation, and national security, before academic, government, policy, and military audiences. He also co-hosts the Rational Security podcast.
