Tag: checks and balances

Drones, Special Operations, and Whimsical Wars

Asked the last week on 60 Minutes how many shooting wars the United States is in, Secretary of Defense Leon Panetta took a moment to answer. He eventually said we are going after al Qaeda in Pakistan and its “nodes” in Somalia, Yemen, and North Africa. Somehow, he left out the indefinite war we have going in Afghanistan.

It’s no wonder that Panetta can’t keep track of the wars he’s supposed to manage. On top of Afghanistan and the drone campaigns, 12,000 U.S. special operations forces are distributed around dozens of countries, increasingly outside declared war zones, where they train foreign militaries, collect intelligence, and occasionally launch lethal raids. As just reported in the Washington Post, some of these forces are now operating a dozen bases across Northern Africa, where their activities include overseeing contractors flying surveillance aircraft. Despite the Obama administration’s claims of great progress in fighting al Qaeda, the global shadow war shows no signs of abating.

The official rationale for using force across the world is that al Qaeda is global. But that’s true only thanks to a capacious definition of al Qaeda that imposes a sense of false unity of disparate groups. The always-overrated remnant of the organization that sponsored the 9/11 attacks barely exists anymore, even in Pakistan. Our counterterrorism efforts are directed mostly against others: terrorists that take up al Qaeda’s name and desire to kill westerners but have limited links to the real McCoy, as in Yemen and North Africa, and insurgents friendly to jihadists but mostly consumed by local disputes, like the Taliban in Afghanistanal Shabaab in Somalia, and al Qaeda’s Islamist allies in southern Yemen. Like the phony Communist monolith in the Cold War, the myth of a unified, global “al Qaeda” makes actions against vaguely-linked entities—many with no obvious interest in the United States—seem like a coherent campaign against globe trotting menace bent on our destruction.

The real reason we are fighting so much these days is that war is too easy. International and domestic restraints on the use of U.S. military power are few. And unrestrained power tends to be exercised. Presidents can use it whimsically, at least until they do something costly that creates a backlash and wakes up public opposition. Drones and special operations forces made this problem worse.

Most of the world is what the military calls a permissive environment, especially since the end of the Cold War. Most places lack forces capable of keeping our military out. Many potential allies invite it. The risks traditionally associated with war—invasion, mass death, etc.—are now alien to Americans. Since the draft ended, the consequences of even bad wars for most of us are minor: unsettling media stories and mildly higher taxes deferred by deficits. That’s why, as Nuno Monteiro argues, the U.S. military was already quite busy in the 1990s despite the absence of real enemies.

Because war is so cheap, the public has little reason to worry much about it. That leaves elected representatives without any electoral incentive to restrain presidential war powers. No surprise then that the imperial presidency grew as American power did. Technology gains and secrecy exacerbate the problem. Even more than strategic bombing from high altitude, which already prevented U.S. casualties, drones cheapen warfare. Covert raids are riskier, of course, but secrecy limits public appreciation of those risks.

The president and his advisors assure us that they use these forces only after solemn debate and nights spent (badly) reading just war theory. But a White House that debates the use of force only with itself short-circuits the democratic process. That is not just a constitutional problem but a practical one. Broad debate among competing powers generally produces better decisions than narrower, unilateral ones. That is why is it is naïve to suggest, as John Fabian Witt did last week in a New York Times op-ed, that the executive branch is developing sensible legal institutions to manage the gray area between war and peace occupied by drone strikes. What’s needed are checks and balances. That means Congress needs to use its war powers.

First, Congress should rewrite the 2001 Authorization of Military Force, which has morphed into a legal rationale for doing whatever presidents want in the name of counterterrorism. That bill authorized force against the organizers of the September 11 attacks and those who aided them, which seemed to mean al Qaeda and the Taliban in Afghanistan and maybe Pakistan. The new law should state that acts of war, including drone strikes, in other places require a new authorization of force. If Congress is for bombing stuff in Yemen and Somalia, it should debate those missions. Second, Congress should reform the convoluted laws governing the deployment of special operations forces, making their use more onerous and transparent. Those forces should engage in covert action only after a presidential finding, as with the CIA. Third, Congress should require that taxes or offsets fund wars. That would increase debate about their worth.

The trouble, as already noted, is that Congress has no interest in doing these things. Congressional leaders are today more interested in policing leaks about the president’s unilateral exercise of war powers than in restraining them. Short of a military disaster involving special operations forces or drones, this seems unlikely to change in the short term. In the longer term, we need a restoration of Congress’ institutional identity. Even without an electoral reason, politicians should want to exercise war powers simply because they can—because people like power. That’s the assumption behind Edward Corwin’s notion that the constitution’s is an “invitation to struggle” over foreign policy. Something has obstructed Congress’ desire to struggle. Those concerned by the president’s promiscuous use of force should try to identify and remove the obstruction.

Cross-posted from the Skeptics at the National Interest.

Health Care Ruling a Victory for Federalism and Individual Liberty

Today’s ruling vindicates the constitutional first principle that ours is a government of delegated, enumerated, and thus limited powers. Like Judge Hudson in the Virginia case, Judge Vinson recognized that the individual mandate represents an unprecedented and improper incursion beyond those powers: the federal government, under the guise of regulating commerce, cannot require that people engage in economic activity.

And this is as it should be: if the only limit on congressional power were Congress’ own assessment of the wisdom of each assertion of such power, the Constitution would be obsolete – as would any conception of checks and balances. James Madison, the author of the Federalist Paper (51) explaining how man’s non-angelic nature requires explicit limits on those who govern, would spin in his grave. As even would Alexander Hamilton – perhaps the Framer most favorably disposed to strong central power – who cautioned that courts should not be in the business of evaluating the “more or less necessity” of a piece of legislation but rather define judicially administrable rules to guide (but also limit) Congress’s actions.

And so today’s ruling, in a lawsuit that now has 26 states as plaintiffs – with two others challenging the health care “reform” separately – represents the latest and most significant victory for federalism and individual liberty. This will not end until the Supreme Court has its say, but the tide is clearly running in freedom’s favor.

I will comment further once I’ve had a chance to read through the ruling.

Is It ‘Weird’ for Congress to Consider the Constitutionality of Legislation Before Voting on It?

Slate columnist Dahlia Lithwick seems to think so (h/t David Bernstein).  So I’m not accused of taking Lithwick’s words out of context, here’s the relevant passage, discussing Senate nominee Christine O’Donnell (R-DE):

O’Donnell explained that “when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.” How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution? In 2003, O’Donnell said of the Supreme Court that “it’s kind of like we have the nine people sitting there in Washington who have a constitutional monarchy and that is an abuse of the system.” So I do wonder a little whether she’s claiming that her view of what’s constitutional trumps theirs. Not a lot of space for checks and balances in that reading.

Apparently Lithwick doesn’t know that senators and congressmen (and a whole host of other officials – including federal law clerks of the kind both she and I were at some point) swear an oath to uphold the Constitution.  It seems that it would be hard to fulfill that oath if you don’t in good faith and to the best of your ability consider the constitutional dimension of whatever you’re voting on.  Yes of course not all congressmen are lawyers – though it’s unclear whether being one and even chairing the judiciary committee helps one think through constitutional issues – but you shouldn’t have to be a constitutional scholar to see that, for example, Congress cannot force everyone to eat three servings of fruits and vegetables daily.  (Though now-Justice Elena Kagan refused to say that.)

Indeed, the Constitution is silent as to which branch of government is to review the constitutionality of legislation.  Moreover, as we know from the foundational case of Marbury v. Madison, the judiciary’s role in doing so is merely (but rightly) implied, not explicit, in constitutional text.  There is no “weirdness” in courts exercising their constitutional powers by ruling on constitutional issues brought before them in lawsuits even as the other branches make constitutionality determinations in carrying out their own duties.  After all, isn’t a president who does something he consciously knows is beyond his lawfully vested Article II authority violating his own oath of office and potentially subjecting himself to impeachment for that very reason?

Yes, long gone, unfortunately, are the days when congressional debates focused on the constitutionality of proposed bills rather than their desirability, but shouldn’t Congress at least pay lip service to the idea that it needs a constitutional warrant for everything it does?

In any event, I’ll be on a panel with Dahlia this Thursday at the Missouri Bar Association’s annual meeting and will raise this issue to her.  (May also take on her bizarre accusation that Iowa Senator Chuck Grassley was appealing sub rosa to “Christian Reconstructionists” in asking at Kagan’s confirmation hearings whether the right to keep and bear arms pre-existed the Constitution – see David Bernstein’s simple rebuttal at the Volokh Conspiracy.)

Wednesday Links

  • “Checks and balances” be damned: “In a democratic country, you’d think that before the executive branch could regulate CO2–a ubiquitous substance essential to life–the legislature would have to vote on the issue. But you’d be wrong.” Somewhere, Thomas Friedman is smiling.

A Chance to Fix the PATRIOT Act?

As Tim Lynch noted earlier this week, Barack Obama’s justice department has come out in favor of renewing three controversial PATRIOT Act provisions—on face another in a train of disappointments for anyone who’d hoped some of those broad executive branch surveillance powers might depart with the Bush administration.

But there is a potential silver lining: In the letter to Sen. Patrick Leahy (D-VT) making the case for renewal, the Justice Department also declares its openness to “modifications” of those provisions designed to provide checks and balances, provided they don’t undermine investigations. While the popular press has always framed the fight as being “supporters” and “opponents” of the PATRIOT Act, the problem with many of the law’s provisions is not that the powers they grant are inherently awful, but that they lack necessary constraints and oversight mechanisms.

Consider the much-contested “roving wiretap” provision allowing warrants under the Foreign Intelligence Surveillance Act to cover all the communications devices a target might use without specifying the facilities to be monitored in advance—at least in cases where there are specific facts supporting the belief that a target is likely to take measures to thwart traditional surveillance. The objection to this provision is not that intelligence officers should never be allowed to obtain roving warrants, which also exist in the law governing ordinary law enforcement wiretaps. The issue is that FISA is fairly loosey-goosey about the specification of “targets”—they can be described rather than identified. That flexibility may make some sense in the foreign intel context, but when you combine it with similar flexibility in the specification of the facility to be monitored, you get something that looks a heck of a lot like a general warrant. It’s one thing to say “we have evidence this particular phone line and e-mail account are being used by terrorists, though we don’t know who they are” or “we have evidence this person is a terrorist, but he keeps changing phones.” It’s another—and should not be possible—to mock traditional particularity requirements by obtaining a warrant to tap someone on some line, to be determined. FISA warrants should “rove” over persons or facilities, but never both.

The DOJ letter describes the so-called “Lone Wolf” amendment to FISA as simply allowing surveillance of targets who are agents of foreign powers without having identified which foreign power (i.e. which particular terrorist group) they’re working for. They say they’ve never invoked this ability, but want to keep it in reserve. If that description were accurate, I’d say let them. But as currently written, the “lone wolf” language potentially covers people who are really conventional domestic threats with only the most tenuous international ties—the DOJ letter alludes to people who “self-radicalize” by reading online propaganda, but are not actually agents of a foreign group at all.

Finally, there’s the “business records” provision, which actually covers the seizure of any “tangible thing.”  The problems with this one probably deserve their own post, and ideally you’d just go through the ordinary warrant procedure for this. But at the very, very least there should be some more specific nexus to a particular foreign target than “relevance” to a ongoing investigation before an order issues. The gag orders that automatically accompany these document requests also require more robust judicial scrutiny.

Some of these fixes—and quite a few other salutary reforms besides—appear to be part of the JUSTICE Act which I see that Sen. Russ Feingold (D-WI) introduced earlier this afternoon.  I’ll take a closer look at the provisions of that bill in a post tomorrow.

Should Judges ‘Have the Back’ of Police Officers?

Vice-president Joe Biden says we should rally behind the Supreme Court nomination of Sotomayor because she will “have the back” of the police.  Biden is a lawyer, a senator, and former chairman of the Senate’s Judiciary Committee, so he should know better than to pull a political stunt like that to curry favor with law enforcement groups.  The Constitution places limits on the power of the police to search, detain, wiretap, imprison, and interrogate.   The separation of powers principle means that judges must maintain their impartiality and “check” the police whenever they overstep their authority.  To abdicate that responsibility and to “go along with the police” is to do away with our system of checks and balances.

As it happens, The New York Times has a story today about one Jeffrey Deskovic.  He got caught up in a police investigation because he was “too distraught” over the rape and murder of his classmate.  When there was no DNA match, prosecutors told the jury it didn’t really matter.  Does Biden really want Supreme Court justices to come to the support of the state when habeas corpus petitions arrive on their desks and the police work is sloppy, weak, or worse?

On a related note, Cato adjunct scholar Harvey Silverglate fights another miscarriage of justice in Massachusetts.