Publication Date
2006
Abstract
Events since my Sibley Lecture in March 2005 have only underscored the importance of the general topic "Constitutional Norms and Permanent Emergencies"-whatever the adequacy of my own analysis. Probably the most prominent example is the controversy generated by disclosure of the National Security Agency (NSA) surveillance of phone calls of American citizens, undertaken without a scintilla of judicial approval, and by the Bush Administration's defense of the surveillance in spite of legislation, the Foreign Intelligence Surveillance Act (FISA), that seems quite clearly to make it illegal.' Also noteworthy, however, is the Bush Administration's continued assertions that it simply does not recognize any congressional capacity to control presidential decision making regarding methods of interrogation of ostensible enemies of the United States. This is revealed most clearly in the "signing statement" issued by President Bush after executing the so- called McCain Amendment, 2 which attempts to control such interrogation: The executive branch shall construe [the Amendment], relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief. . . , which will assist in achieving the shared objective of the Congress and the President . . . of protecting the American people from further terrorist attacks.3 As Georgetown Law Center Professor Martin Lederman puts it, "Translation: I reserve the constitutional right to waterboard [i.e., use a technique that causes the victim to feel that he is drowning] when it will 'assist' in protecting the American people from terrorist attacks."' Lederman, of course, is critical of the President.
Recommended Citation
Levinson, Sanford
(2006)
"The Deepening Crisis of American Constitutionalism,"
Georgia Law Review: Vol. 40:
No.
3, Article 9.
Available at:
https://digitalcommons.law.uga.edu/glr/vol40/iss3/9
