An article from the symposium issue of the Indiana Law Journal on War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. The symposium was convened by the American Constitution Society for Law and Policy and the Indiana University School of Law–Bloomington on October 7, 2005.

As the title suggests, the authors undertake the effort of framing the legal debate on the NSA’s domestic surveillance program, also providing, as they say, “four documents that, taken together, set forth the basic arguments concerning the lawfulness of the secret NSA surveillance program. The debate outlined by the four documents raises important issues about statutory interpretation in the face of claims of constitutional conflict, executive power during times of war, fundamental privacy rights of Americans, and ultimately, the rule of law in the war on terror.” They conclude: “The question that these documents raise is not whether suspected al Qaeda members’ phone calls should be monitored, but whether wiretapping of Americans in pursuit of that objective should be done pursuant to law, or pursuant to secret orders issued by the President in contravention of law. Our view is that if the President finds federal law inadequate in some measure, the proper course is to ask Congress to change it. What the President cannot do in our democracy is order that the law be violated in secret.”

An article from the symposium issue of the Indiana Law Journal on "War, Terrorism and Torture: Limits on Presidential Power in the 21st Century." The symposium was convened by the American Constitution Society for Law and Policy and the Indiana University School of Law–Bloomington on October 7, 2005.

“Fordham Law School dean William Treanor closes the [symposium] issue with his own good analysis of a variant of [Louis] Fisher’s question: when is congressional authorization of the use of military force unnecessary and what constitutes authorization? Treanor proceeds to identify deficiencies and gaps in the existing scholarship. To all who would join the debate, he provides helpful counsel regarding not only who may make war and how, but also the entire range of questions that involve the relative war powers of Congress and the President and the role of the courts in policing transgressions. Foremost, he argues, “there is little connection between the issues that scholars debate and the constitutional issues involving war that government officials and political leaders confront,” and he makes a strong plea for consideration of “how political actors should engage in constitutional interpretation.” Treanor’s suggested reorientation of the scholarly debate provides a fitting close to a symposium in which the contributors—leading constitutional scholars, government lawyers, and human rights advocates—together have created an impressive volume that significantly advances debate on precisely such questions of enormous practical consequence.” From Foreword by Prof. Dawn Johnsen

An article from the symposium issue of the Indiana Law Journal on "War, Terrorism and Torture: Limits on Presidential Power in the 21st Century." The symposium was convened by the American Constitution Society for Law and Policy and the Indiana University School of Law–Bloomington on October 7, 2005.

“Saikrishna Prakash’s essay […] invites further scholarship. Indeed, that is Prakash’s essential aim. He views the current heated controversy over the legality of the Bush administration’s war and anti-terrorism policies as deficient on both sides because it relies too heavily on constitutional text that alone does not detail the scope of presidential and congressional war powers or how the powers interact. Desperately needed, Prakash argues, is difficult historical research into the original meaning of the text. Because he has not conducted the research he views as essential, Prakash does not offer his own legal conclusions (and he describes some commentators who do as seeming to leap to conclusions based on policy preferences). He does, however, sketch four “hypotheses” about the constitutional allocation of presidential and congressional war powers. With care again to caution of the need to measure the hypotheses against the original understanding of the constitutional Framers, Prakash identifies what he describes as the “shared authority thesis” as the most plausible. He observes that both the Bush administration and its critics can be seen as adhering to versions of this “shared authority” approach, and he suggests that the two sides might be less far apart—at least at the level of constitutional theory—than they believe.” From Foreword by Prof. Dawn Johnsen