Joseph Biden Q&A

By Charlie Savage
Globe Staff / December 20, 2007
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1. Does the president have inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes?

No. The President is not above the law, he is bound by valid acts of Congress. Our laws state clearly that no one can wiretap Americans without a warrant. By willfully authorizing warrantless wiretaps of Americans, the President violated the law, and he should be held accountable.
2. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites -- a situation that does not involve stopping an IMMINENT threat?)

Let’s not kid ourselves: any military conflict with Iran is likely to become major.

A so-called “surgical” strike on Iran’s nuclear facilities would probably require thousands of sorties by our air force, over two to three weeks. It would mean bombing Iran’s radar sites and air force, repeatedly striking multiple targets across the country, securing the Straits of Hormuz and oil facilities throughout the Persian Gulf, and preparing for attacks against our troops, citizens, allies, and interests across the region and beyond.

What looks “limited” to us almost certainly would be seen as something much bigger by the Iranians and could spark an all-out war.

There’s only thing worse than a poorly planned, intentional war: an unplanned, unintentional war.

It is precisely because the consequences of war – intended or otherwise – can be so profound and complicated that our Founding Fathers vested in Congress, not the President, the power to initiate war, except to repel an imminent attack on the United States or its citizens.

They reasoned that requiring the President to come to Congress first would slow things down and allow for more careful decision making before sending Americans to fight and die – and ensure broader public support.

The Founding Fathers were, as in most things, profoundly right. Thus, the President has no authority to use force in Iran unless Iran attacks the United States, or there is an imminent threat of such an attack. The Constitution is clear: except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.

3. Does the Constitution empower the president to disregard a congressional statute limiting the deployment of troops -- either by capping the number of troops that may be deployed to a particular country or by setting minimum home-stays between deployments? In other words, is that level of deployment management beyond the constitutional power of Congress to regulate?

No. Congress has the power to raise and support Armies, and to provide and maintain a Navy, and to make rules for the government and regulation of the land and naval forces (Article I, Section 8, clauses 12-14). Pursuant to these powers, the Congress may limit and regulate the deployment of forces.

4. Under what circumstances, if any, would you sign a bill into law but also issue a signing statement reserving a constitutional right to bypass the law?

I would not. The American people are best served when the branches of government work together, respecting and observing the separation of powers envisioned by our Founding Fathers. As President I will develop a relationship of trust and cooperation with the legislature. I will work hard to ensure that the laws they pass respect and take into account the powers of the Presidency, but I will not use a signing statement to attempt to override a valid act of Congress.

5. Does the Constitution permit a president to detain US citizens without charges as unlawful enemy combatants?

No. The Supreme Court resolved this issue in a case called "Hamdi" in 2004. An American citizen held as an enemy combatant has a constitutional right to due process to determine whether his detention is legal and is adequately based on fact.

6. Does executive privilege cover testimony or documents about decision-making within the executive branch not involving confidential advice communicated to the president himself?

No. The Executive Privilege only covers communications between the President and his advisors. Even when the privilege does apply, it is not absolute; it may be outweighed by the public’s interest in the fair administration of justice.

7. If Congress defines a specific interrogation technique as prohibited under all circumstances, does the president's authority as commander in chief ever permit him to instruct his subordinates to employ that technique despite the statute?

No. The President must comply with all valid acts of Congress. That’s why I’ve introduced the National Security with Justice Act, unequivocally banning waterboarding and other forms of torture.

8. Under what circumstances, if any, is the president, when operating overseas as commander-in-chief, free to disregard international human rights treaties that the US Senate has ratified?

Treaties are the supreme law of the land under Article VI of the Constitution. The President must faithfully execute them, just as he must faithfully execute laws approved by Congress. He has no power to disregard treaties.

9. Do you agree or disagree with the statement made by former Attorney General Gonzales in January 2007 that nothing in the Constitution confers an affirmative right to habeas corpus, separate from any statutory habeas rights Congress might grant or take away?

I disagree categorically with Mr. Gonzales. The Constitution guarantees the right of habeas corpus unless in the case of rebellion or invasion it is suspended. My National Security with Justice Act reinforces this Constitutional right by extending by statute meaningful habeas review for all Guantanamo detainees.

10. Is there any executive power the Bush administration has claimed or exercised that you think is unconstitutional? Anything you think is simply a bad idea?

The Bush Administration has consistently violated the separation of powers and many parts of its national security policy are a bad idea. Warrantless wiretapping, the extraordinary rendition program, the CIA black site program, the “enhanced interrogation” technique program are just several examples of the President overstepping the bounds of Executive Power, and all of them were bad ideas.

11. Who are your campaign's advisers for legal issues?

(From staff) Sen. Biden relies a great deal on his own experience as a Constitutional law professor and the Chairman or Ranking member of the Judiciary Committee, but he discusses legal issues frequently with Larry Tribe of Harvard Law School; Walter Dellinger, acting Solicitor General for Bill Clinton; and Erwin Chermerinsky and Chris Schroeder, both of Duke Law School.

12. Do you think it is important for all would-be presidents to answer questions like these before voters decide which one to entrust with the powers of the presidency? What would you say about any rival candidate who refuses to answer such questions?

Yes, they should answer these questions. Sharing the vision of my presidency with voters is what campaigning is all about. As part of the primary process, candidates are able to explain their policy positions and beliefs regarding governance in real detail.

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