Shorter Verbatim John Yoo and John Bolton: “Constitutional principles seem to be mere inconveniences to Mr. Obama, however.”
They, however, have a very principled argument. Admittedly, in this case Obama is doing something plainly within the power of the executive branch — directing military and intelligence agencies how to act in ways that contravene no act of Congress — while Yoo and Bolton believed that the president could actually ignore legislation passed by Congress. However, Obama is doing this to advance policy goals that John Yoo and John Bolton don’t support. See the crucial difference?
I conclude with an obligatory link to Stephen Holmes on Yoo.
Bazelon’s piece gets right to the heart of the issue:
If you want to believe that the government does its grim best to fight terrorists, and you’re inclined to think that their dirty tactics justify some ruthlessness on our part, then maybe a few killings of bad guys in faraway lands doesn’t bother you much. But there are a couple of unsettling implications here that are so obvious that it’s amazing Holder thinks he need not address them. The first is that if the Obama administration claims this kind of extra-judicial power for a few cases, what’s to stop the next president from expanding upon it—and citing this step as precedent for taking others that Obama wouldn’t countenance? And the second is that when the executive branch won’t release the legal memos that underlie its decision-making, we’re blocked from evaluating how strong or weak the arguments are. When the federal government takes a bold and new step like this, testing the boundaries of the Constitution, it’s crucial for Holder and his lawyers to explain how and why. Instead, we’re being asked to take the wisdom of the president and his national security apparatus for granted.
The key related issue is that the conflict with Al-Qaeda is more than just police work, but it doesn’t represent a traditional battlefield either. In implicitly leading hard on the AUMF, the administration seems to be argue that it’s both impractical and unnecessary for their to be judicial oversight for actions against Al-Qaeda, but (to put it mildly) this is far from obvious.
I recommend both Kevin and Adam.
The standards laid out for when a targeted killing can be justified are not, in themselves, unreasonable:
First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.
But the problem, as Adam says, is that a great deal of the work is done by the term “imminent threat,” and Holder’s follow-up already indicates slippage:
But don’t assume that when Holder says “imminent threat of violent attack,” he means that you’re actually part of a specific plot threatening American lives. “The Constitution does not require the president to delay action until some theoretical end stage of planning when the precise time, place, and manner of an attack become clear,” Holder said. That would introduce an “unacceptably high risk of failure.” When he refers to “failure,” Holder presumably means failing to kill the target before the attack or plan for an attack materializes, not the possibility that the government might accidentally kill an innocent person.
And it’s precisely this potential for defining “imminent threat” down that makes the lack of oversight unacceptable. If the executive branch can’t demonstrate evidence that there is an “imminent threat” to some sort of independent body, there’s no reason to believe that those being targeted for killing in fact pose imminent threats, and the potential for abusing the gravest power the executive branch possesses remains. Without meaningful oversight, these standards are only as good as the administration applying them. And that’s just not nearly good enough.
Clearly, anyone who is more concerned with arbitrary executive authority than Ben Wittes must be lying.
As Charlie Savage and Adam Serwer point out, the Senate yesterday decided to punt on the question of whether the executive can arbitrarily and indefinitely detain American citizens simply by declaring them terrorists. While dismaying, this is part of an ongoing pattern many political scientists (including yours truly) have identified: legislators deliberately putting contested issues into the courts. Issues like the constitutionality of arbitrary detention end up in the courts not because the judiciary is “usurping” legislative power but because that’s how legislative majorities want it.
As for how the Supreme Court will rule should they decide to take a case on the matter, their general pattern on such issues is deference to the executive branch. It’s worth noting, however, that the Hamdi v. Rumsfeld dissent written by noted Trotskyite Antonin Scalia make clear that he doesn’t believe that the arbitrary detention of American citizens absent a suspension of habeas corpus is constitutional. On the other hand, the only other justice to join Scalia’s opinion — Justice Stevens — is no longer on the bench, so I wouldn’t be terribly optimistic.
However, the bill passed by Senate did actually do some things to make the expansion of arbitrary executive power worse, as Adam notes:
The compromise amendment however, does nothing to address the Obama administration’s concerns about the bill. The Directors of the FBI and CIA, the secretary of defense, and the director of national intelligence have all said that the bill’s provision mandating military detention of non-citizen terror suspects apprehended on American soil would interfere with terrorism investigations and harm national security. That hasn’t changed. The question is whether or not the administration is willing to make good on its threat to veto the bill, or whether it was just bluffing.
I’m afraid I’m going to have to go with “just bluffing.”
…Obama is reiterating his opposition, which makes a mere bluff less likely; let’s hope I was wrong.
If there is an isolated terrorist attack, then there needs to be an expansion of the national security state. If a terrorist leader is killed, then there needs to be an expansion of the national security state.
Related, obviously, is the hand-waving about torture being essential to the Bin Laden operation despite a complete absence of evidence. Among other things, this reveals that the ticking-time-bomb justification isn’t just bad on its face — apparently, the fuse lasts for a decade.
…noted radical civil libertarian Don Rumsfeld didn’t get the memo about torture being crucial to the OBL operation.
Ben Wittes believes that the new leaks about Gitmo are embarrassing because the government couldn’t keep important secrets, and are inconsistent with the civil liberties of the persons who are, er, being arbitrarily detained without charges because they contain unsubstantiated speculation. Personally, I think the bigger embarrassment is what the leaks reveal about our arbitrary detention regime and how many of the arbitrary detentions are apparently justified with inherently unreliable evidence obtained from torture. Different priorities, I guess.
I generally agree with Mark Tushnet that Robert Jackson is overrated. But I also agree that he did have a talent for good lines, and this bit from his famous-if-overrated Steel Seizures concurrence was prescient indeed:
But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that “The tools belong to the man who can use them.” We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.
I have a new article up at the Prospect on this general theme. While I agree with Paul and Bruce Ackerman that it’s hard to square the current presidential dominance over military and security policy with the constitutional framework established by the framework, on some level the argument becomes like debating the fine points of constitutional grand theory: presidential dominance is the de facto constitutional order. I draw the line at suggestions that the president can just ignore congressional statutes, but if accepted practice means anything (and I’m not going to selectively pretend to be an originalist) the president’s ability to initiate military force with congressional delegation or acquiescence is part of our constitutional order, and certainly Obama isn’t breaking any new ground. The only thing that can change things is for Congress to assert the formal powers it still possesses, but there’s little reason to believe it will do so.
Whether the current balance of power is constitutional a different question from whether it’s desirable, and on the latter question I remain highly dubious:
But it’s also true that recent American foreign-policy blunders would suggest it’s not entirely desirable for the president to have so much power. As Stephen Holmes argued at length in his brilliant 2006 book, The Matador’s Cape, an executive branch unconstrained in its military power is dangerous. “It turns out,” Holmes says, “that an executive branch that never has to give reasons for its actions soon stops having plausible reasons for its actions.” The Vietnam and second Iraq wars, in particular, suggest that there was real wisdom in the power-sharing over military policy Madison envisioned. Both wars provide classic examples of the pathologies one would expect from unilateral executive power: wars fought under largely false pretenses, with increasingly blurry aims and essentially no cost-benefit analysis. And the theories of unilateral executive power advanced by John Yoo and others in the executive branch under George W. Bush also led to arbitrary torture and other appalling civil-liberties abuses.
At any rate, my combination of outrage and fatalism is expressed in full at TAP. I’ll have more on Posner and Vermeule later today…
More on Connick v. Thompson. I would excerpt, except that it might provide a disincentive to Read the Whole Thing.
I’m glad that Lithwick highlights the remarkable Scalia concurrence, which of course was joined by the most reactionary Supreme Court justice since James McReynolds. Scalia and Alito actually take a more authoritarian position than the defendants themselves, arguing that 4 of the 5 prosecutors who conspired in the suppression of evidence that nearly got an innocent man executed didn’t act illegally despite their own admission:
By now the reader has doubtless guessed the best-kept secret of this case: There was probably no Brady violation at all—except for Deegan’s (which, since it was a bad-faith, knowing violation, could not possibly be attributed to lack of training). The dissent surely knows this, which is why it leans heavily on the fact that Connick conceded that Brady was violated.
Yes, one explanation for why the dissent relies on the admission of Brady violations is that the dissenters secretly believe that conspiring to withhold evidence that proved to be exculpatory doesn’t violate Brady. The infinitely more plausible explanation is that Ginsburg didn’t think it required elaborate argument to establish a proposition that was admitted against interest by the defendants. Jeebus. As is so often the case, Scalia’s sneering is used to prop up arguments that collapse on the slightest inspection.
More from Healy.
I’ll have a bigger piece about the subject next week, but as I’ve said before, to assert that presidential initiations of military force — whether wise or unwise — violate the Constitution strikes me as being as pointless and anachronistic as claiming that the federal government lacks the power to regulate the national economy. I’m not crazy about the consequences of the de facto constitutional order with respect to presidential war powers, but in Congress continues to delegate warmaking authority to the president I think the issues raised should properly be viewed as policy rather than constitutional questions.
But when it comes to Clinton’s claim that Obama could proceed with attacks on Libya in the face of congressional opposition, though, I get off the bus. The Constitution shares warmaking powers between the president and Congress. If Congress wants to delegate its powers to the president — whether actively or even through acquiescence — that’s one thing. But to claim that that the president can simply defy valid statutory restrictions is, as Adam says, lawless. Unfortunately, the Obama administration’s endorsement of Yoovian conceptions of executive power can no longer be considered surprising, but it’s still dismaying.
I can’t add much to Greenwald, but it’s appalling that the only person losing their job over the arbitrary torture of Bradley Manning is someone who opposed it.