Tag: executive power

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.

The Non-Defense of DOMA

The Obama Administration’s decision to stop defending DOMA in the courts has provoked some widespread commentary. Jim Burroway hints that Obama’s strategy here is both deep and cynical. Obama’s locked in a losing fight with Republicans over the budget, because Americans really do want to cut federal spending. This remains true even if, notoriously, nearly the only specific program they want to cut is our negligible foreign aid.

The mood is anti-spending, and it’s just possible that a government shutdown scares Obama even more than it scares the Republicans. The remedy? Change the subject. Make Republicans in Congress defend their stance on gay marriage, which is so not the discussion they’d like to be having.

It could be one of the first instances in which gay marriage counts as a wedge issue against Republicans, rather than for them. Opposing same-sex marriage appeals strongly to a smallish base. To the center, the whole subject is distasteful either way, and they don’t mind if Obama drops it. Finally, more and more people just find the conservatives embarrassing here. Obama sees no need to do their dirty work for them, especially when the work really is that dirty.

Meanwhile, Orin Kerr is worried about executive power:

By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.

Liberals: If you think declining to defend DOMA is the right decision, how will you feel when a Republican administration declines to defend in a school prayer case? Or an abortion case? Or on Obamacare itself?

There are two very, very distinct issues here. One concerns gays and lesbians. The other concerns the proper relationship among the three branches of the federal government. One is about policy; the other is about procedure. Deciding a procedural question based on what it means for a one-time policy outcome is just bad governance. The questions we should be asking are – How much power would this really give the president? Is this a particularly new power? (Arguably it’s not.) And in any case, are we comfortable with the president having it, even if he or she has radically different views about policy?

When we look at it that way, there’s a near-perfect parallel to the perennial debate over the filibuster. Everyone hates it when they’re in the majority. Everyone loves it when they’re in the minority. Politics really is the mind-killer.

Targeted Killing of U.S. Citizen a State Secret?

That’s the claim the Obama administration made in court. As Glenn Greenwald puts it:

[W]hat’s most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is “state secrets”:  in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate their legality.

Italics in the original. My colleagues Gene Healy and Nat Hentoff have expressed concerns about targeted killings. Charlie Savage wrote a good piece on this that highlights how even the most ardent defenders of executive power may blush at this broad claim of power.

The government’s increasing use of the state secrets doctrine to shield its actions from judicial review has been contentious. Some officials have argued that invoking it in the Awlaki matter, about which so much is already public, would risk a backlash. David Rivkin, a lawyer in the White House of President George H. W. Bush, echoed that concern.

“I’m a huge fan of executive power, but if someone came up to you and said the government wants to target you and you can’t even talk about it in court to try to stop it, that’s too harsh even for me,” he said.

In fairness, Rivkin would defend the administration’s claim of power on other grounds – that targeting is a “political question” for the elected branches of government – but this approach seems to have lost out because it invites the judiciary to determine whether the U.S. is at war in Yemen.

Amending the Authorization for the Use of Military Force passed by Congress after 9/11 is long overdue. What groups are we truly at war with, where does the line between war and peace sit, who can we detain and kill, and what process is owed before a citizen may be targeted with lethal force? Questions of war are political in nature, and if we don’t know the answers, it is Congress’ role to step in and provide them.

Did Kagan Have a “Disparate Impact” on Military Recruiters?

Perhaps you remember the case of Ricci v. DiStefano, so much discussed during Sonia Sotomayor’s confirmation process?   To recap briefly: The city of New Haven had used a written test to determine which of its local firefighters would be considered for promotions. When the tests came back, it turned out that the high scorers were overwhelmingly Caucasian, and so the city—fearing a lawsuit from black and Latino firefighters who hadn’t made the cut—scrapped the results. Not, mind you, because the test was in any way discriminatory on its face, but because federal law frowns on any test that has a “disparate impact” on minority groups unless it can be shown to be both closely related to the requirements of the job and less uneven in its effects than comparable alternatives. A number of the white firefighters then sued, claiming that it was discriminatory to discard the test after the fact just because the high scorers were too pale.  Bracket the question of how Sotomayor, as a circuit court judge, should have ruled.  Clearly as a policy question, most conservatives seemed disposed to side with the firefighters, and in general conservatives have been highly skeptical of “disparate impact” standards.  If the standards are facially neutral, and were not chosen with any pernicious intent (the argument runs), we should let the chips fall where they may. Sounds fairly compelling to me.

So it’s a little odd to see folks like Weekly Standard editor Bill Kristol casually talk about Elena Kagan’s “discrimination against the military” during her tenure as dean of Harvard Law School. All Kagan did, after all, was enforce Harvard’s preexisting rule requiring firms wishing to recruit through the school’s Office of Career Services to certify that they did not discriminate by sexual orientation. (This is not the same, incidentally, as “banning recruiters from campus”—the military did continue to recruit on campus via a student group.) It was a neutral rule that applied to any company that wished to avail itself of the Office of Career Service’s assistance, from which the military would have required a special exemption.  Kristol clearly didn’t think much of the logic of “disparate impact” in the Ricci case, so why is he so quick to adopt it here? There are many good reasons to be worried about Kagan, not least her apparent fondness for an expansive conception of executive power, but a commitment to even-handed application of the rules is not among them.

State Secrets, Courts, and NSA’s Illegal Wiretapping

As Tim Lynch notes, Judge Vaughn Walker has ruled in favor of the now-defunct Al-Haramain Islamic Foundation—unique among the many litigants who have tried to challenge the Bush-era program of warrantless wiretapping by the National Security Agency because they actually had evidence, in the form of a document accidentally delivered to foundation lawyers by the government itself, that their personnel had been targeted for eavesdropping.

Other efforts to get a court to review the program’s legality had been caught in a kind of catch-22: Plaintiffs who merely feared that their calls might be subject to NSA filtering and interception lacked standing to sue, because they couldn’t show a specific, concrete injury resulting from the program.

But, of course, information about exactly who has been wiretapped is a closely guarded state secret. So closely guarded, in fact, that the Justice Department was able to force the return of the document that exposed the wiretapping of Al-Haramain, and then get it barred from the court’s consideration as a “secret” even after it had been disclosed. (Contrast, incidentally, the Supreme Court’s jurisprudence on individual privacy rights, which often denies any legitimate expectation of privacy in information once revealed to a third party.) Al-Haramain finally prevailed because they were ultimately able to assemble evidence from the public record showing they’d been wiretapped, and the government declined to produce anything resembling a warrant for that surveillance.

If you read over the actual opinion, however it may seem a little anticlimactic—as though something is missing. The ruling concludes that there’s prima facie evidence that Al-Haramain and their lawyers were wiretapped, that the government has failed to produce a warrant, and that this violates the Foreign Intelligence Surveillance Act. But of course, there was never any question about that. Not even the most strident apologists for the NSA program denied that it contravened FISA; rather, they offered a series of rationalizations for why the president was entitled to disregard a federal statute.

There was the John Yoo argument that the president essentially becomes omnipotent during wartime, and that if we can shoot Taliban on a foreign battlefield, surely we can wiretap Americans at home if they seem vaguely Taliban-ish. Even under Bush, the Office of Legal Counsel soon backed away from such… creative… lines of argument. Instead, they relied on the post-9/11 Authorization for the Use of Military Force (AUMF) against al-Qaeda, claiming it had implicitly created a loophole in the FISA law. It was David Kris, now head of DOJ’s National Security Division, who most decisively blew that one out of the water, concluding that it was “essentially impossible” to sustain the government’s reading of the AUMF.

Yet you’ll note that none of these issues arise in Walker’s opinion, because the DOJ, in effect, refused to play. They resisted the court at every step, insisting that a program discussed at length on the front pages of newspapers for years now was so very secret that no aspect of it could be discussed even in a closed setting. They continued to insist on this in the face of repeated court rulings to the contrary. So while Al-Haramain has prevailed, there’s no ruling on the validity of any of those arguments. That’s why I think Marcy Wheeler is probably correct when she predicts that the government will simply take its lumps and pay damages rather than risk an appeal. For one, while Obama administration has been happy to invoke state secrecy as vigorously as its predecessor, it would obviously be somewhat embarrassing for Obama’s DOJ to parrot Bush’s substantive claims of near-limitless executive power. Perhaps more to the point, though, some of those legal arguments may still be operative in secret OLC memos. The FISA Amendments Act aimed to put the unlawful Bush program under court supervision, and even reasserted FISA’s language establishing it as the “exclusive means” for electronic surveillance, which would seem to drive a final stake in the heart of any argument based on the AUMF. But we ultimately don’t know what legal rationales they still consider operative, and it would surely be awkward to have an appellate court knock the legs out from under some of these secret memoranda.

None of this is to deny that the ruling is a big deal—if nothing else because it suggests that the government does not enjoy total carte blanche to shield lawbreaking from review with broad, bald assertions of privilege. But I also know that civil libertarians had hoped that the courts might be the only path to a more full accounting of—and accountability for—the domestic spying program. If the upshot of this is simply that the government must pay a few tens, or even hundreds of thousands of dollars in damages, it’s hard not to see the victory as something of a disappointment.