Topic: Law and Civil Liberties

Should We Fear Sea-Smurfs?

On October 1, active duty US Army troops for the first time began an assignment under control of Northern Command, the Combatant Command created in 2002 for homeland defense. This deployment, and particularly the revelation that the troops were training for law enforcement missions like crowd control, caused an outbreak of consternation on liberal and libertarian blogs. There is great uncertainty about why the Pentagon assigned active duty troops for homeland security and what purpose they serve. The main fear is that the mission will contravene Posse Comitatus, the 19th century law that restricts the use of the military domestically. The ACLU even filed a Freedom of Information Act request to compel the release of plans for the troops’ use. This post is an effort both to answer some of these questions and to raise others.

Here’s the bottom line: The trouble is less this particular assignment, which probably does not upend Posse Comitatus, than the gradual militarization of various governmental tasks in the United States. The creation of the Sea Smurfs is just the latest step in that process.

The troops are the 1st Brigade Combat Team of the 3rd Infantry division. In this year-long assignment they will be a CBRNE Consequence Management Response Force, or CCMRF (pronounced Sea-Smurf). CBRNE stands for chemical, biological, radiological, nuclear or high-yield explosive. The 1st BCT is the first of three CCMRF teams, who will comprise 15,000 soldiers in total. The other two will come from the Army National Guard. The Pentagon assigned these troops to Northern Command – probably over the objections of the Army, which likes to train its troops for war – because there was concern in Congress and elsewhere that Northcom could not ensure a proficient response to large scale disasters unless it controlled forces. For an example of this thinking, see this GAO report from April.

The assignment essentially amounts to extra training and equipment for responding to unconventional weapons attacks.  The training will occur at Fort Stewart in Georgia where the troops are based. It does not change rotation schedules to Iraq of Afghanistan.

Why is this not an obvious violation of Posse Comitatus? Because it is shot full of holes already. It is a statute, and other statutes create exceptions. Today, the military can provide equipment and expertise to police, fly fighter aircraft to protect airspace, respond to storms and do a host of other things in the United States. What Posse Comitatus now prevents the military from doing is law enforcement: arrests, crowd-control, detention, search and seizure activities, and so on. That does not apply to the National Guard when they are under state command.  And of course, there is an insurrection exception to Posse Comitatus. If the President declares an insurrection, troops can engage in law enforcement.

The 2006 Defense Authorization bill appeared to create new exceptions to Posse Comitatus. Those exceptions were undone, the status quo restored, via legislation passed by Senator Pat Leahy in early 2008. However, the administration’s theory of executive power says that they can use the troops as they see fit to deal with terrorism, whatever the law. There is probably a secret Office of Legal Counsel memo from 2001 that asserts that Posse Comitatus does not apply in the event of terrorist attacks. (That memo should be near the top of pyre when Obama takes office.)

Sea-smurfs can then do tasks short of law enforcement, including cleaning up after attacks. If terrorist attacks qualify as an insurrection, troops could perform law enforcement tasks in their aftermath. That might explain why the Sea-Smurfs received law enforcement training, but the Army denies that the training was related to domestic duties. It is good that the ACLU is trying to figure what exactly is intended.

Even if this mission is legal, however, it does not make it wise. Homeland defense activities like storms and terrorist attacks are the job of local and state authorities, and in extreme cases, the National Guard. Historically, these forces have been sufficient. Failures like Hurricane Katrina resulted more from poor decision making than the lack of capacity.

It’s true that a biological or nuclear attack is another can of worms.  (One reason to avoid man-power intensive occupational wars is that they prevent the National Guard from performing homeland missions.) It is also true that regular Army troops have more capacity. But the standard cannot be perfect preparation for all contingencies, especially when they are extremely low-probability events.

The real trouble with the Sea-Smurfs is the logic that justifies Northern Command: that Americans face a host of dangers at home that only military forces can protect them against. These dangers are grossly exaggerated, but even if they aren’t, someone beyond bloggers ought to be asking why it is the job of the military, let alone the federal government, to interdict drugs and refugees, clean up after storms, protect computers and hunt bad actors at home. Doesn’t this sap the military’s readiness for war? And doesn’t this militarization of government have some detrimental effect on liberal values?

‘After’ the Imperial Presidency?

Jonathan Mahler has a smart, informative feature on executive power in this week’s New York Times Magazine. I object only to the title, “After the Imperial Presidency.” As Mahler’s piece makes clear, the title could have used a question mark, at the very least.

Mahler writes:

Come January, the current administration will pass on to its successor a vast infrastructure for electronic surveillance, secret sites for detention and interrogation and a sheaf of legal opinions empowering the executive to do whatever he feels necessary to protect the country. The new administration will also be the beneficiary of Congress’s recent history of complacency, which amounts to a tacit acceptance of the Bush administration’s expansive views of executive authority. For that matter, thanks to the recent economic bailout, Bush’s successor will inherit control over much of the banking industry. “The next president will enter office as the most powerful president who has ever sat in the White House,” Jack Balkin, a constitutional law professor at Yale and an influential legal blogger, told me a few weeks ago.

Some prominent commentators — Jack Goldsmith and Jeffrey Rosen among them — have noted the “irony” that an administration monomaniacally committed to the growth of presidential power has allegedly weakened the presidency with its unilateralism and contempt of Congress. Given the powers the office retains and continues to accrue, that’s an irony that’s hard to savor. As Mahler notes, “it’s worth keeping in mind that in the final year of Bush’s presidency — while facing a Democratic Congress and historically low approval ratings — he was able to push through a federal bailout bill that vested almost complete control over the economy in the Treasury secretary (who reports to the president), not to mention a major rewriting of the 1978 Foreign Intelligence Surveillance Act that will make it easier for the White House to spy on American citizens.”

Indeed, Mahler documents how political realities— and in Obama’s case, perhaps, the prospect of actually taking power — led both candidates to move away from their early criticisms of Bush-style “deciderism,” and flip flop on torture (McCain) and wiretapping (McCain and Obama).

In explaining the post-9/11 growth of executive power, Mahler properly focuses on the twin problems of congressional cowardice and poisonous partisanship. In the Bush years, all too many congressional Republicans put party unity over institutional responsibility. That’s a common vice under unified government, which may be why Mahler hardly sounds optimistic when he quotes Senator Levin: “When I asked Levin what needs to happen for Congress to take back the rest of the ground that it ceded to the executive branch during the Bush years, he replied predictably, ‘We need a Democrat in the White House.’”

For further reasons to doubt that the Imperial Presidency is behind us, check here and here.

Whither Fusionism?

One of the victims of the Bush presidency, along with limited government and the Republican Party, has been “fusionism,” the idea that conservatives and libertarians ought to come together to oppose the forces of socialism (and The Left generally).  Indeed, this Tuesday’s election probably saw the highest-ever percentage of libertarians – depending on how you count them – vote for the Democratic presidential candidate (at least in the modern era, with the possible exception of the Nixon years).  This despite that Democratic candidate being commonly seen as the most statist major-party candidate in history.

Cato adjunct scholar Ilya Somin who blogs at the Volokh Conspiracy and in his day job is a law professor at George Mason (currently visiting at Penn) – Ilya being a popular name among libertarian legal community – today puts up a smart post on the state of the erstwhile libertarian-conservative.  Here’s a snippet:

Obviously, a lot depends on what conservatives decide to do. If they choose the pro-limited government position advocated by Representative Jeff Flake and some other younger House Republicans, there will be lots of room for cooperation with libertarians. I am happy to see that Flake has denounced “the ill-fitting and unworkable big-government conservatism that defined the Bush administration.” Conservatives could, however, adopt the combination of economic populism and social conservatism advocated by Mike Huckabee and others. It is even possible that the latter path will be more politically advantageous, at least in the short term. 

Indeed, if conservatives choose some version of the Huckabee-Palin route, fusionism is dead – and so, might I add presumptuously, is the Republican Party.  That just ain’t where the majority of the nation is, or where it’s heading (though, as Ilya says, that direction may be politically advantageous in certain parts of the country under certain circumstances).

But this type of discussion may be beside the point; libertarian-conservative (in the sense of socially conservative, economically squishy) fusionism may have run its course, a relic of the Cold War.  The new fusionism may well be fiscally conservative and socially tolerant (not necessarily liberal, just not wanting government to do anything about the way people live their private lives), including folks who might call themselves conservative cosmopolitans, crunchy cons, South Park conservatives, or indeed libertarians.  Or they might eschew labels altogether but are sick of the rot coming from (or to) Washington.  In other words: Purple America,

DEA in Afghanistan

As Ted Galen Carpenter has noted, the War on Drugs is active in Afghanistan. Below is a photo from the DEA website of Special Agents burning a bunker of hashish in Afghanistan. Repeat: These guys are DEA agents, not U.S. soldiers.

There is an undeniable connection between the narcotics trade and Taliban funding. However, any drug eradication should be pursued as a means of resource denial to insurgents, not as a goal in and of itself. We have to be smart about this. A major portion of Afghanistan’s GDP comes from the opium poppy trade – half in 2007, though down significantly this year. The quickest way to create an insurgent is to destroy a man’s livelihood. Opium eradication for its own sake will make the central government and Coalition forces increasingly unpopular and feed the insurgency.

The addition of the DEA into the equation makes this continued loss of rapport more likely. Some might make the case for having a good cop/bad cop strategy when dealing with local farmers – “tell us where the Taliban are or we’ll let the DEA torch your crops” – which would be persuasive if NATO troops weren’t already engaged in drug eradication. The addition of an agency with narcotics prohibition as its sole reason for existence guarantees that a focus on opium will continue with greater intensity and long after outliving its limited military utility.

For additional background, read this.

SCOTUS Hearts Obama?

Will the Supreme Court be more, or less, of a check on the president during an Obama administration?

My guess:  Less.

First, as Gene Healy notes, Barack Obama has every incentive to preserve and enhance the power of the president.  His “Yes we can!” Justice Department will not be filing briefs with the Court telling it to take the president’s power away.

Second, the judges rumored to be on Obama’s short list for the Supreme Court, like Harvard Law Dean Elena Kagan, are hardly unfriendly to the presidency.  As a scholar, Kagan is perhaps best known for her smart, nuanced 2001 law review article, Presidential Administration, which – while differing in many nuanced respects from Bush era legal framework for thinking about executive power – celebrates the president’s power to “jolt” bureaucrats “into action … [for] a distinctly activist and pro-regulatory governing agenda.”  She argues that federal courts should interpret the president’s statutory authority in ways that facilitate and enhance, rather than limit, the president’s powers.  Look for judicial appointments with similar views.

Third, my guess is that the Supreme Court as a whole, no matter who is on it, is likely to prove more congenial to Obama than it was to Bush.  As Neal Katyal argued in the Cato Supreme Court Review, Jody Freeman and Adrian Vermeule expand in the non-Cato Supreme Court Review, and Jack Goldsmith suggests in The Terror Presidency, the Supreme Court’s pushback against the Bush administration is at least partly a response to the Bush administration’s tin-eared and sweeping claims in favor of “inherent” executive power.  Even Bush’s Solicitor General, Ted Olson, is rumored to have advised this legal strategy would backfire by alienating the Court.

The Obama administration is likely to be smarter, by inviting the court to uphold various exercises of executive power on a case-by-case basis, rather than based on sweeping claims that the court must cede vasts swaths of decision making to the executive.  The court likes the former kind of argument for obvious reasons – it requires the president to check back with the court on an ongoing basis. But don’t fall into the Bush administration’s mindset.  A president who presents the court with smart, modest legal arguments for upholding his power don’t have less power.  He probably will have more.  As Katyal and others argue, the court may be more willing to give the President what he wants when the request is presented in a more modest fashion.

Fourth, remember that Justice Kennedy, the swing vote on the current court, famously votes his politics.  My guess is he is likely to side more often with an administration he likes and trusts – and that he will have an affinity for fellow cosmopolitan Obama’s, at least on the foreign affairs and national security front.

I’m guessing, for all these reasons, that those expecting the Supreme Court to continue to act as a drag on the centralization of power in the presidency, as it generally has in the Bush years, are likely to be disappointed in the Age of Obama.

A Rebirth of Freedom?

Back in July Sen. Barack Obama promised to repeal any executive orders that “trample on liberty”:

Barack Obama told House Democrats on Tuesday that as president he would order his attorney general to scour White House executive orders and expunge any that “trample on liberty,” several lawmakers said… .

The Illinois senator “talked about how his attorney general is to review every executive order and immediately eliminate those that trample on liberty,” said Rep. Jerrold Nadler, D-N.Y.

Good stuff! Perhaps that could include reviewing whether the federal government had any authority to partially nationalize banks, a sweeping intervention not authorized by Congress in the $700 billion bailout bill. Under what authority did the president and the secretary of the treasury start purchasing equity in major corporations?

Cato’s legal scholars would be happy to work with the new administration to review and rescind executive orders, signing statements, memos, and other documents that grant excessive power to the executive branch or otherwise “trample on liberty.” Some of the Bush administration’s excesses in this regard were reviewed by Gene Healy and Tim Lynch in Power Surge: The Constitutional Record of George W. Bush.

But I hope the new president realizes that Bush isn’t the first president to issue executive orders that “trample on liberty.” It was President Bill Clinton’s aide, Paul Begala, who drooled at the notion of using executive orders to do what Congress wouldn’t go along with: “Stroke of the pen. Law of the land. Kinda cool.” For a look at some pre-Bush executive orders that might warrant elimination, Obama’s attorney general might consult “Executive Orders and National Emergencies: How Presidents Have Come to ‘Run the Country’ by Usurping Legislative Power,” published by Cato in 1999. There he can find information about Clinton orders that nationalized land, sought to reverse Supreme Court rulings, rewrote the rules of federalism, and waged war in Yugoslavia.

As Obama himself has said in recent days, channeling Frederick Douglass, “Power concedes nothing without a fight.” Many people are skeptical that a new president will make good on his pledge to constrain executive power. But if he’s committed to the rule of law and the separation of powers, we’re ready to help.