by John Yoo
Roosevelt had long been concerned with the potential threat of a "fifth column" inside the United States. The spectacular 1916 sabotage of an American munitions plant remained vivid in his memory. As early as 1936, Roosevelt authorized the FBI to investigate "subversive activities in this country, including communism and fascism."172When World War II broke out, Roosevelt ordered the Bureau to "take charge of investigative work in matters relating to espionage, sabotage, and violations of neutrality regulations," and commanded state and local law enforcement officers to "promptly turn over" to the FBI any information "relating to espionage, counterespionage, sabotage, subversive activities and violations of the neutrality laws." FDR did not define what "subversive activities" meant.
France's collapse in May 1940 had a profound effect. At the time, Germany's smashing victory seemed inexplicable as a feat of arms alone, so the idea grew that collaborators and spies were also responsible. Roosevelt increasingly spoke of his concern that the United States, too, might suffer from Axis sympathizers or covert agents intent on undermining its war preparations. Even before Hoover came to make his request, FDR had already encouraged amateurish surveillance efforts. His friend, publisher and real estate developer Vincent Astor, had set up a private group he had called "the Room," which included leading figures in New York City. As a director of the Western Union Telegraph Company, Astor ordered the covert interception of telegrams. He and his friends also arranged for the monitoring of radio transmissions in New York. Using its connections, the group gathered the private banking records of companies connected to foreign nations to determine whether they were supporting espionage within the United States. While there is no direct record of a presidential order authorizing this surveillance, historical evidence suggests that the group was acting in response to a request by Roosevelt.173
Given his suspicions, Roosevelt quickly agreed with Morgenthau and Hoover that the wiretapping of suspected Axis agents or collaborators was necessary to protect national security. The next day, he issued a memorandum to Jackson to allow the FBI to wiretap individuals who posed a potential threat to the national security.174 And after Pearl Harbor, FDR authorized the interception of all international communications. Even though some Justices had criticized wiretapping, the Court had held in 1928, in Olmstead v. United States, that the Fourth Amendment did not require a warrant to intercept electronic communications.175 It would not be until 1967, in Katz v. United States, that the Supreme Court would hold that electronic communications were entitled to Fourth Amendment privacy protections. 176
Congress, however, appeared to have prohibited the interception of electronic communications in the Federal Communications Act of 1934. It declared that "no person" who receives or transmits "any interstate or foreign communication by wire or radio" can "divulge or publish" its contents except through "authorized channels of transmission" or to the recipient. In United States v. Nardone, decided in 1937, the Supreme Court interpreted this language to prohibit wiretapping by the government as well as by private individuals.177 In a second Nardone case, the Court made clear that the government could not introduce in court any evidence gathered from wiretapping.178
FDR recognized that his wiretapping order of May 1940 violated the text of the statute, or at least the Supreme Court's reading of it, but the President claimed that the Supreme Court could not have intended "any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation."179Administration supporters in Congress introduced legislation to legalize wiretapping, but the House rejected the bill 156-147. FDR continued the interception program throughout the war despite the Federal Communications Act and Nardone. FDR's pre-war interception order applied to anyone "suspected of subversive activities" against the U.S. government, which included individuals who might be sympathetic to, or even working for, Germany and Japan.180 At that time, however, the United States was not yet at war. While FDR wanted the FBI to limit the interceptions to the calls of aliens, his order did not exclude citizens. Most importantly, it was not limited only to international calls or telegrams, but included communications that took place wholly within the United States.
CONCLUSIONS
WAR AND EMERGENCY demand that Presidents exercise their constitutional powers far more broadly than in peacetime. That was nowhere more true than under President Franklin Roosevelt. FDR tackled the Great Depression by treating it as a domestic emergency that called for the centralization of power in the federal government and the Presidency. But he could not act alone, because the Constitution gives Congress the authority to regulate the economy and create the federal agencies. Under Roosevelt's direction, Congress enacted sweeping legislation vesting almost complete power over industry and agriculture in the executive branch, which repeatedly sought to centralize power over the plethora of New Deal agencies in the Presidency.
Roosevelt responded to the looming threat of fascism by bringing the United States into World War II, and he made all the significant decisions of foreign and domestic policy once the war began. Histories rarely, if ever, mention any role for Congress in the prosecution of the war against Germany and Japan, aside from the provision of money and arms. It was the President, for example, who decided that the United States would allocate its resources to seek victory in Europe first, and Roosevelt alone declared that the Allies would demand unconditional surrender as the only way to end the war.
FDR, not Congress, made the critical decisions about the shape of the postwar world. He wanted a world policed by four major countries, the United States, Great Britain, China, and the Soviet Union. He agreed with Great Britain and the Soviet Union to divide Germany -- the "German question" was the fundamental strategic problem at the root of both World Wars. At Yalta, FDR agreed that the Soviet Union would control a sphere of influence extending over Eastern Europe, and in return, those nations would be allowed to hold democratic elections.
While some believe that Stalin had hoodwinked him, FDR may have recognized the reality of the balance of power in Europe after the war. He may have hoped that his reasonableness in agreeing to Stalin's demands would win, in exchange, Soviet support of the United Nations. Roosevelt also demanded that Britain and France give up their colonies. FDR wanted to forestall a return to both the isolationism and the international disorder of the interwar period. Historians argue today whether Roosevelt truly believed in collective security, or whether he was a realist who accepted the balance of power at the end of World War II. Either way, it was the President who took the initiative to set the policy, although it was one where he could not act alone. Without the Senate's approval, the United Nations would have gone the way of the League of Nations.
Too often, we focus on mistakes of commission -- a decision to go to war gone bad, or a law that has unintended consequences -- known as Type I errors. FDR showed that the Presidency may be far more effective than the other branches in preventing a failure to take action -- errors of omission, or Type II errors. Left to its own devices, Congress would have blocked aid to the Allies and delayed American entry into World War II by several months, if not years. This may be a result of the internal structure of Congress, which suffers from serious collective action problems. The passage of legislation through both Houses with many members is so difficult that the Constitution can be understood to favor inaction and, therefore, the status quo. The status quo may be best for a nation when it enjoys peace and prosperity, and threats come more often from ill-advised efforts at reform or revolutionary change, but maintaining the status quo may harm the nation when long-term threats are approaching, or unanticipated chances to benefit present themselves during a small window of opportunity.
In the area of domestic affairs, whether the New Deal or internal security programs, Roosevelt worked with Congress. He had to: the Great Depression's economic nature brought it squarely within the enumerated powers of Congress. Nevertheless, the emergency of the Depression brought home the advantages of presidential leadership in
the legislative process. A complex economy beset by a mysterious, but dangerous, ailment required administrative expertise for a cure, and Congress willingly cooperated by transferring massive legislative authority to the agencies.
FDR ought to be praised for trying every reasonable idea, including this transformation of executive-legislative relations, to reverse the sickening drop in economic activity, but no one knew how to end the Depression. Only now do we know that the New Deal, combined with the Federal Reserve's tight monetary policy and the government's restrictive fiscal policies, made the Great Depression worse. World War II, not the New Deal, ended the persistent unemployment levels of the 1930s, which left behind bloated, independent bureaucracies that future Presidents would struggle to control. The mistakes in these areas show that presidential cooperation with Congress provides no guarantee of success, and in fact, can produce quite the opposite.
Throughout FDR's astounding Presidency, a theme unites both his success in foreign policy and his appearance of progress in domestic policy. FDR believed deeply in the independence of the Presidency and a vigorous use of its constitutional authorities. He did not shrink from constitutional confrontations with the other branches in order to pursue policies he believed to be in the national interest. He openly disagreed with the Supreme Court's limitations on the New Deal and publicly sought to manipulate its membership. He pushed his powers as Commander-in-Chief to the fullest, refusing to abide by the spirit, and sometimes the letter, of the Neutrality Acts in order to involve the United States in a war that neither Congress nor a clear majority of Americans favored. FDR correctly judged the threat to the nation's existence posed by the rise of fascism, and the nation and the world are better off today because he led a reluctant nation into war. His broad understanding of his executive powers created the foundation for policies that secured freedom in the twentieth century.
CHAPTER 8
The Cold War Presidents
PRESIDENTS FROM Harry Truman to Ronald Reagan inherited the world that FDR made. Conservative Republicans and liberal Democrats alike accepted the permanence of the administrative state. Even Reagan, whose First Inaugural Address declared that "in this present crisis, government is not the solution to our problem, government is the problem," did not shrink the bureaucracy or roll back the New Deal. FDR's apparent success in addressing the Great Depression made Presidents responsible in the public mind for economic growth. Demands on the Presidency rose in tandem with the people's expectations of the national government, and Chief Executives responded by continuing the centralization of their authority over the government. If they were going to rise or fall for everything from unemployment to pollution, Presidents wanted control over the administrative state that made the real policy decisions.
FDR's second challenge became another constant of the postwar world. The Soviet Union replaced Germany and Japan as the central national security threat -- its nuclear weapons could have destroyed the United States in minutes, it enjoyed superiority in conventional forces, and it could project its influence globally. FDR's successors did not have to worry about isolationism. Truman convinced Congress to cooperate in placing the United States in a permanent state of mobilization, unprecedented in American history, to counter the Soviet threat. His successors kept the United States committed to the strategy of containment over a period far longer -- 45 years -- than any "hot" war. While they sometimes turned to Congress for support, Presidents continued to dispatch the military into hostilities abroad on their authority, a prospect with even more dangerous consequences in the nuclear age. During the Cold War, the United States transformed its role from the arsenal of democracy to the guardian of the free world. Without recognizing broad constitutional powers in the Presidency, the United States could not have prevailed, and without Congress's consistent provision of resources for the military and security agencies, the Presidents could not have succeeded.
For guiding the nation safely through an existential threat unlike any the United States had ever faced, Presidents Truman, Eisenhower, and Reagan rank among our ten greatest Presidents. This pattern has mistakenly led some to believe that war produces great Presidents. Not all Presidents, however, were up to the challenge of the Cold War. President Kennedy found his moment in the Cuban Missile Crisis but led the nation into Vietnam, where Lyndon Johnson's ambitions foundered.
But it was Richard Nixon who showed that a broad exercise of presidential power could produce disaster. His efforts to cover up Watergate made heavy use of executive privilege, control of law enforcement, and authority over the agencies. Watergate spurred a series of "reforms" that sought to constrain executive power, but they aimed at the wrong target -- the Presidency, rather than Nixon. Subsequent Presidents defied the post-Watergate limits, and without their restoration of executive powers it is doubtful that they could have brought the Cold War to a successful and unexpected conclusion.
PRESIDENTS AND NATIONAL SECURITY
AFTER EARLIER CONFLICTS, the United States had usually demobilized its armed forces and brought defense spending down to minimal levels, but the Cold War changed that. Defeat of Germany gave birth to a powerful totalitarian empire that would threaten American national security for a half-century. The Soviets had a large and well-educated population, ample natural resources, and an ideology that presented an alternative to democracy and capitalism. They ended the war with their troops in possession of Eastern Europe and half of Germany, and would soon gain allies in China and parts of Africa, Asia, and Latin America. The possibility of war was the gravest challenge to the United States in its history -- by the end of the 1940s, Moscow had developed nuclear weapons; in the 1950s, it could reach the United States with bombers and missiles; by the end of the 1960s, it achieved nuclear parity; in the 1970s, its conventional and nuclear forces arguably outmatched those of the West.
Presidents of different parties and personalities kept to a strategy of containment. Defeating the Soviet Union required the patience to act in multiple dimensions, including military alliances, limited wars, foreign aid, covert action, and economic coercion. It called for a permanent, standing military to project power abroad, and intelligence agencies to secretly gather and analyze information. It demanded the ability to act swiftly and decisively as in the Cuban Missile Crisis. It required long-term guarantees for the security of other nations, as with the North Atlantic Treaty Organization (NATO), a permanent alliance unprecedented in American history. As the United States entered a semipermanent state of national emergency, marked by multiple wars and boosts in defense spending, power naturally flowed to the Presidency. It was not the extent of the President's powers that was extraordinary; rather, it was the duration and magnitude of the Soviet threat that was remarkable.
The Cold War demanded significant changes in the size and shape of the military. In peacetime, the United States had been content to maintain a small army and navy and keep its overseas commitments to a minimum. Between the end of Reconstruction and the Spanish-American War, American force levels stayed within a narrow range of 34,000 to 43,000 troops. This was small given the large size of the nation, but unsurprising given the absence of any natural enemies on the northern and southern borders and the protection provided by the oceans. Between the end of the Spanish-American War and World War I, the armed forces numbered between 100,000 and 175,000 troops; in the interwar years, 243,000 and 380,000. In 1932, at the start of FDR's Presidency, the armed forces numbered only 244,902 officers and enlisted men. The armed forces dropped from 12 million at the end of World War II to 1.4 million in 1948, but moved upward to 3.2 million during the Korean War. The military fluctuated between two and three million soldiers for the rest of the Cold War, about the same size as the World War I military.1 The Cold War brought forth one of the Framers' great fears, a large, standing army in peacetime far more powerful than the citizenry or its militia.
One cannot argue that this growth was a function of population or economic growth; America's military simply exp
anded to carry out the nation's new international strategy. To be sure, the United States had never been as "isolationist" as commonly thought. As historians John Lewis Gaddis and Walter McDougall separately observe, the United States has engaged in numerous wars to expand its territories and neutralize competitors on its borders.2 But World War II proved that direct threats to American national security could now come from across the oceans. Intervention overseas could prevent these threats from maturing. Containment assumed that a certain international order, maintained by a large permanent military, would prevent foreign threats from reaching the point of open conflict. It was thought that preventing the Soviets from expanding their territory and power, and defending the critical industrial and population centers of the Free World, would eventually force the communist bloc to collapse.3
Under containment, the United States implicitly accepted spheres of influence for the West and the Soviet bloc. While the United States would protect the Free World by limiting communist expansion of its sphere, different Presidents played variations on the theme. The Truman, Kennedy, and Johnson administrations followed a strategy of "Flexible Response" that treated Soviet threats throughout the world as equally dangerous and relied on all available conventional and nuclear options to match them. While this "symmetric" approach had the virtue of meeting Communist expansion at all points and giving the President more options, it required a larger military, placed greater demands on the economy, and gave the opponent the initiative.