Tag: executive power

Harold Koh and the Temptations of Power

So for three months now, we’ve been at war in a country that the president’s own secretary of defense admits is “not a vital interest for the United States.” Turns out, it’s also a war that the president’s own attorney general believes to be illegal.

That’s what I get from Charlie Savage’s recent reporting on how the White House “forum-shopped” its way to its current position on the War Powers Resolution, to wit, you’re not engaged in “hostilities” if you’re hitting someone but they can’t hit you back.

As the WPR’s 60-day deadline approached, the Pentagon’s general counsel and, more importantly, the head of the president’s Office of Legal Counsel, Caroline D. Krass, advised Obama that bombing Tripoli—even if done remotely, with little risk of immediate retaliation—counted as engaging in “hostilities” under the WPR, which meant that the president would have to terminate U.S. involvement or radically scale it back after the 60-day limit. As Savage reports, “Attorney General Eric H. Holder Jr. supported Ms. Krass’s view, officials said”—in other words, that if the president continued bombing Libya, he’d be violating the WPR.

Ordinarily OLC’s opinion would have the greatest weight here, but President Obama went with the advice given by White House Counsel Robert Bauer and State Department Legal adviser Harold Koh—who told him what he wanted to hear.

My Washington Examiner column today focuses on Harold Koh as an object lesson in the corrupting potential of power:

Harvard’s Jack Goldsmith notes that “for a quarter century before heading up State-Legal, Koh was the leading and most vocal academic critic of presidential unilateralism in war.” On the strength of that reputation, Koh rose to the deanship of Yale Law School in 2004.

And Koh seemed to take the War Powers Resolution pretty seriously. In 1994, for example, he wrote to the Clinton Justice Department to protest the planned deployment to Haiti, which was carried out without a single shot being fired:

“Nothing in the War Powers Resolution authorizes the President to commit armed forces overseas into actual or imminent hostilities in a situation where he could have gotten advance authorization.”

Who could have predicted that his legacy at State would be reading the WPR practically out of existence?

On Thursday, Koh took point at a press conference selling the administration line. The next day, he went before the American Constitution Society, the progressive alternative to the Federalist Society, to give a strikingly self-congratulatory speech about maintaining one’s integrity in “public service.” The relevant part starts at around 33:00 in. Highlights: “I’ve lived the life I wanted to live; I’ve said the things I wanted to say”…”I still believe in my principles”…”I never say anything I don’t believe”…”if you hear me say something, you can be absolutely sure that I believe it [including “the administration’s position on war powers in Libya”]”…”if I say it, I believe it, and I intend to stand by it”…”For what is a man?/what has he got? If not himself/then he has not…” (OK, not the last bit).

As I note in the column:

John Dean, who served prison time for his role in the Watergate cover-up as a young White House counsel to Richard Nixon, once said that young people should be kept away from top executive posts.

They lacked the life experience and independence needed to resist falling under the spell of presidents who want them to bend or break the law.

Koh was in his mid-50s when he joined the administration, coming off a distinguished career built on opposition to the Imperial Presidency. Yet the lure of being “in the room” when the big decisions are made seems to have turned him into the Gollum of Foggy Bottom.

Oh, and by the way, Charlie Savage reports today that piloted strikes continued past the 60-day time limit, so even if Koh’s legal rationalization could pass the laugh test, it wouldn’t fit the facts we have.

June 2011 Cato Unbound: Targeted Killing and the Rule of Law

When can the executive lawfully kill?

The rule of law itself depends on getting the answer right. Clearly that answer can’t be “never,” because then even defensive wars would be impossible. And it can’t be “whenever,” because that would be the very antithesis of lawful government. As F. A. Hayek wrote, “if a law gave the government unlimited power to act as it pleased, all its actions would be legal, but it would certainly not be under the rule of law” (p. 205).

The answer must be “sometimes”—but which times are those? In wartime? In peacetime? Against aliens? What about citizens? What role do the courts play? And what about the legislature?

In answer to these questions, Cato Unbound lead essayist Ryan Alford draws on the Anglo-American constitutional tradition, arguing that the killing of a citizen or subject without judicial authorization was so far opposed to our traditional legal safeguards that the American Founders didn’t even bother to prohibit it in the Constitution. And yet, he argues, the case of Anwar al-Awlaqi shows that our government now claims this power anyway. The themes of his essay are explored in much more detail in his forthcoming article in the Utah Law Review.

To discuss with him this month, we’ve lined up a panel of legal and historical experts: John C. Dehn of the U.S. Military Academy at West Point, Gregory McNeal of Pepperdine University, and Carlton Larson of the University of California at Davis. Each will offer a commentary on Alford’s essay, followed by a discussion among the four on this timely and important subject. Be sure to stop by often, or just subscribe to Cato Unbound’s RSS feed.

As always, Cato Unbound readers are encouraged to take up our themes, and enter into the conversation on their own websites and blogs, or at other venues. Trackbacks are enabled. We also welcome your letters and may publish them at our option. Send them to jkuznicki at cato.org

Thursday Links

“But He’s Our Imperial President”

My Washington Examiner column today closes out a three-part series this week on “Obama’s Imperial Presidency” (also running at Reason.com). Tuesday’s column covered Obama’s expansion of executive power abroad, and Wednesday’s looked at the ways in which Obama has turned the Imperial Presidency inward against the private sector.

Today’s column begins with a recap of the powers 44 holds:

Abroad, Obama claims the power to start wars at will; scoop up your email and phone records without answering to a judge; assassinate you via drone strike far from any battlefield, and – should your relatives complain – keep the whole thing secret in the name of national security.

At home, Obama has summarily fired the CEO of General Motors, America’s largest automaker; flouted bankruptcy law to shaft Chrysler’s creditors and pay off his union allies; pressured half-nationalized car companies to produce pokey little electric cars, had his National Labor Relations Board assert veto power over a private company’s decision to move a factory to a “right to work” state; and, via imperial edict, began restructuring the industrial economy by imposing restrictions on carbon dioxide emissions despite Congress’ refusal to pass cap-and-trade legislation.

Left or Right, Red or Blue, no American should be comfortable with any one man wielding that much power. Yet too many Americans embrace a philosophy of “situational constitutionalism”: they only get disturbed about the menacing concentration of power in the executive branch when they don’t care for the guy who has the scepter and the crown:

Conservatives who defended every excess of the Bush administration now rail against Obama’s Imperial Presidency, and liberals who considered the Bush era one long descent into the dark night of fascism seem blithely indifferent to the present Oval Office occupant’s multiplying executive power grabs.

Apparently, phrases like “he killed his own people” only grate when pronounced in a clipped, West Texas accent – otherwise, “wars of choice” against third-rate dictators go down smoothly.

But “situational constitutionalism” is the constitutionalism of fools: there’s something absurd–or at least insincere–about people who decide to worry about the Imperial Presidency only every four to eight years, and only when the “other team” holds the office.

Blame power-hungry presidents and feckless Congresses all you want.  We’ll never solve the problem of the Imperial Presidency until more Americans manage to pry their eyes away from the Red-Team/Blue Team sideshow and recognize that who holds the office is less important than the powers the office holds.

Law Professors against “Tyrannophobia”

Over at the American Conservative, I have a review of Eric Posner and Adrian Vermuele’s new book Executive Unbound: After the Madisonian Republic. Funny enough, the working title for my book on presidential power was “Executive Unbound,” but P&V have a very different take on the dangers of concentrating power in the executive (they coin the term “tyrannophobia,” for irrational fear of executive abuse).

From the review’s intro:

The New York Times book editors assigned their review to the Straussian political philosopher Harvey Mansfield, the self-styled expert on “manliness” who’s as rabid a supporter of the imperial presidency as you’re likely to find. In the late Bush era, Mansfield wrote a 3,000-word Wall Street Journal op-ed, “The Case for the Strong Executive,” arguing that defects in the rule of law ‘‘suggest the need for one-man rule.”

Yet even Mansfield blanched at Executive Unbound’s case for unbridled presidential power. He began his review by noting indignantly, “Eric A. Posner and Adrian Vermeule, law professors at Chicago and Harvard, respectively, offer with somewhat alarming confidence the ‘Weimar and Nazi jurist’ Carl Schmitt as their candidate to succeed James Madison for the honor of theorist of the Constitution.”

Gott im Himmel! A book that embraces a leading “Nazi jurist,” applauds the American presidency’s liberation from law, and is apparently hardcore enough to scare manly Harvey Mansfield? What sort of work is Executive Unbound? A Satanic Bible for worshippers of the strong presidency? The black-metal version of John Yoo?

As I dug into the book—while Tomahawk missiles rained down on Libya in yet another unauthorized presidential war—that’s what I was expecting. But Posner and Vermuele have produced something very different and, quite to my surprise, I liked it.

You can read the rest here.

The Folly of Succeeding in Libya

Tonight, to sell the illusion of America’s “limited military action” in Libya’s civil war, President Barack Obama insisted that America had a moral imperative to intervene militarily, implying he will do so wherever foreign leaders commit atrocities against their people. This latest mission in the name of “humanitarian imperialism” is extremely dangerous. In fact, if all goes well in Libya, it might be just as bad as if we fail.

Consider, for instance, if I walked through a wall of fire and came out the other side unharmed. Although I came out safe and sound, my decision to walk through the wall of fire was still misinformed. My good outcome was simply one among a host of potentially terrible outcomes. After all, if I were to walk through that wall of fire again and again, given the danger and level of risk, I would end up with many more bad outcomes than good outcomes.

In this respect, and in terms of our external security commitment to Libya, what matters is not necessarily a good outcome, but making a good decision in the face of various options. Thus, even a narrow and limited military engagement does not mean an absence of risk; one need only reference our “narrow and limited” military engagement in Vietnam to understand the danger of foreign gambles. If indeed our military can be ordered by the president to any corner of the globe, for the advance of human rights and in the absence of vital American interests, then the repercussions of our latest intervention could reverberate well beyond Libya.

President Obama Must Outline an Exit Strategy in Libya

There is ample recent evidence that the president has some difficulty with entrances and exits.  The linked video is a humorous example; the building conundrum in Libya is not.

President Obama’s decision to launch a series of military strikes against Libya raises a host of questions, many more than can be answered in his much-belated address to the American people tonight. At a minimum, the President must clarify the purpose and scope of the mission. He has declared that the sole object is to protect civilians from harm. Others in his administration, however, suggest that military operations will continue until Muammar Qaddafi leaves office.

In fact, the two goals might be contradictory, as the need to protect civilians from violence could well extend long after Qaddafi’s regime is toppled. If the rebels seize power and then turn their guns on former regime supporters, the U.S. military may find itself in the middle of a bloody civil war, as it did in Iraq. President Obama must provide assurances to the American people that he has not committed American blood, treasure, and prestige to a mission that does nothing to preserve U.S. national security, and might ultimately harm it.

Even if the President can clarify the mission, articulate an exit strategy, and give ironclad assurances that the U.S. military is not involved in yet another open-ended nation-building mission, the President’s speech this evening cannot explain away his blatant abuse of executive power. In 2007, Senator Obama declared “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” And yet no one has claimed that Qaddafi’s threats against the Libyan rebels posed a threat to the United States. Nor can anyone show that Qaddafi’s ouster would advance U.S. security. If the rebels prove more tolerant of al Qaeda or other violent extremists, the net effect of this intervention might be to increase the threat of attack against the United States.

Obama’s instincts in 2007 were correct. His ascendancy to the presidency appears to have prompted a change of heart, but no one should be encouraged by this Oval Office conversion. That his predecessors have similarly abused their power is no excuse. The United States is governed by laws, not by men. To allow a single person to wage war without the expressed consent of the people, as stipulated by the Constitution, merely compounds the serious harm done to our institutions of government over the past several decades.