Democracy

Wartime Process

Please excuse the interrupted posting schedule — it’s like this, but probably in a good way ;). Basically, wish me luck for some things that have to happen today.

With apologies to Glenn Greenwald, I think it’s time for Democrats (and Americans, writ large) to become comfortable with targeted killing, even of a U.S. citizen. We’ve covered targeted killings here before. The power derives from the sovereign national right of self-defense, and trumps executive orders and international law “forbidding” assassinations — though to be sure, most authorities on the subject forcefully disapprove of the assassination of U.S. citizens. But, a string of Supreme Court decisions takes the legs out of Greenwald’s larger argument, that federal due process is actually violated when a citizen-belligerent is killed abroad. Although the Fifth Amendment does apply overseas, its force depends at least partially on the practicalities of the situation. Reid v. Covert, 354 U.S. 1 (1957); U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990). So under current law, whether it’s right or wrong, nothing Obama’s done is clear, black-and-white illegal, and none of it comes close to the Bush administration’s grave transgression of the effective suspension of the writ of habeas corpus over federal lands, accomplished (but ultimately halted by the Supreme Court) during the Bush years.

What we should do is set aside histrionics and ask ourselves first whether the targeted killing of men like Anwar al-Awlaki is ultimately illegal, as an improper compromise of the mediated foreign Fifth Amendment, and second, whether it should be. These are harder questions, both requiring a debate that can’t be started and ended so quickly.

Greenwald gets his quick answer by assuming al-Awlaki was killed “far from any battlefield.” But one of the things Bush got right — even if he applied it in a fundamentally flawed manner — was that the old definition of a “battlefield” doesn’t work anymore. No matter how we decide to define the term, the absence of a European line-of-battle formation, spent shell casings, or entrenchment is no longer dispositive. The enemy chose a nontraditional battlefield for us, and we cannot deny the battle.

On that basis, I would permit assassination only outside of American borders — we cannot permit the complete disintegration of the pomerium — and of American citizens only in those isolated situations where (1) the citizen’s connections to terrorism, apart from First Amendment activity, are not true subjects of debate, (2) where the citizen presents a clear and present danger to American security at home or abroad, and (3) where neutralization by other means continues to be, after reasonable investigation, impossible. If we want to consider truly routinizing this type of assassination, we might consider a warrant system, where citizens are given reasonable notice and opportunity to present themselves peaceably for trial to American authorities. There is, after all, no debate that al-Awlaki knew he was a target, but remained at large both to avoid justice and continue his fight against America.

But I suspect we don’t want to go down that road. Greenwald’s right about one thing — as a country, we’re far too good at avoiding serious moral debates. But he’s as guilty of that particular sin as the rest of us. Staking out an untenable, extreme position, one with no possibility of ever attracting serious support, hardly qualifies as constructive political participation. We need to be prepared for compromise, even ugly compromise, if we’re ever to deal appropriately with the fundamentally American questions posed by global terrorism.

All Roads Lead to Peace

Indulge for a moment a pet theory of mine — that the easy availability of the rapid transportation of people and ideas contributes most significantly to defining a civilization.

The rise of stable democracies coincides, at least to some extent, with the invention of the telephone, fiber-optic cables, and the unitary, hegemonic western culture that results from the combination of the two. This I have to state without support, but there’s adequate anecdotal evidence to support the theory — for both Rome and America, internal transportation bound together the imperial homeland. Eisenhower’s interstate system defined American postwar prosperity, and for the first time freed the middle class to travel cross-country at leisure. And Rome’s roads meant safe, easy trade.

On the flip side, the lack of steady informational infrastructure risks crisis. Andrew Jackson’s Battle of New Orleans — fought “after” the end of the War of 1812, but before the end of the war reached him — risked reigniting hostilities. And President Lincoln, at the outset of the Civil War, was forced into a game of constitutional brinksmanship with the Supreme Court simply because he couldn’t recall or consult Congress inside of a week’s time.

Similarly, every science fiction or fantasy series that posits a unitary society must (and does) explain the medium of communication responsible for consistent culture. Orson Scott Card’s “ansible,” though burdened by weird Mormon space-philosophy in the later books of the Ender series, is a precondition for interstellar human culture, and allows him to preserve the family structure. For Banks in The Algebraist, the discovery of an innate bridge between the stars ushers in a new era of humanity. And Simmons’ Hyperion portrays a decadent society bound by the promise of instantaneous transportation between worlds while also threatened by the crushing uniformity it creates, and how its collapse into provincialism risks tyranny. Stability only comes when unity between worlds accommodates diversity of worlds.

At the risk of overreach, this suggests a solution to our national predicament. Our current fractured, hyper-polarized politics seems to descend from a simple lack of understanding. The cities don’t understand the suburbs don’t understand the farms; the north doesn’t understand the south; and none of us are working from the same information. We live with an unprecedented volume of knowledge at our fingertips, but we use it to reinforce rather than expand our beliefs. Laws to force the diversity of viewpoints that we selectively avoid either don’t work, or violate the Constitution. But what if we could create enough shared experience, so that we want to and have to talk to each other again?

The proposal, then, is a successor to the interstate system, something to contract the space between our lives by as significant of a factor as that first project did. What form this project would take — high-speed rail, more extensive commuter lines, something new altogether — I don’t know. But proximity to difference breeds understanding of difference, and underlies the united, egalitarian sentiment that we will need, to make a few vital changes in our lives.

Holy Hell, Elizabeth Warren

How cool is she? And how much more effective at putting out our message than President Obama?

I hear all this, you know, ‘Well, this is class warfare, this is whatever. No. There is nobody in this country who got rich on his own — nobody.

You built a factory out there? Good for you. But I want to be clear. You moved your goods to market on the roads the rest of us paid for. You hired workers the rest of us paid to educate. You were safe in your factory because of police-forces and fire-forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything at your factory — and hire someone to protect against this — because of the work the rest of us did.

Now look, you built a factory and it turned into something terrific, or a great idea. God bless — keep a big hunk of it. But part of the underlying social contract is, you take a hunk of that and pay forward for the next kid who comes along.

My God. Send her to the Senate, now. Democracy gives us the government we deserve, but let’s shoot for better than we deserve. And that’s her. Video follows:

Helping Fellow Citizens Vote: Quintessentially Un-American

After three solid years of increasing right-wing radicalization, this is where we are. In an article titled, “Registering the Poor to Vote is Un-American,” the kicker:

Registering them to vote is like handing out burglary tools to criminals.  It is profoundly antisocial and un-American to empower the nonproductive segments of the population to destroy the country.

Salon‘s response says what needs to be said. Commentary from such an intellectual backwater as The American Thinker wouldn’t deserve a spotlight, but for the boldness of this particular attack on the basic democratic premise of universal suffrage. Note too the comment thread, which devolves into idyllic reminiscences about the days when only landed property-owners could vote. Those were the good-old-days, of course — when men were men (unless they were chattel property).

What can one do against such reckless hate?

The American Concept in Libya

A few months back, The New Yorker attempted to set out a synthesis explaining the President’s foreign policy strategy, as applied to Libya, the “Arab Spring,” and beyond. They concluded that the administration was attempting to “lead from behind” — which David Remnick corrects to “leading from behind the scenes” — by pushing for American interests without leaving American fingerprints on the matter. Notably, this strategy doesn’t spring from a lack of belief in American ideals, or even a hesitancy to apply direct power when needed. It follows from an acknowledgment that some sectors of the world may bristle at American involvement, even while embracing American values. So we act indirectly. Like Bender’s God (YouTube), “when you do things right, people won’t be sure you’ve done anything at all.”

This is good strategy — if it’s strategy at all — but it’s one for which we remain rhetorically unprepared. For the left’s part, we’re too ashamed of fighting this new war in the first place to take pride in the fact that it’s being done well. And for the right, any intervention conducted without military fanfare, celebrations on carrier hanger decks, and premature proclamations of victory approximates a betrayal “American exceptionalism,” a surrender to a post-American age, or a decision to vacate the world stage.

Let’s stop and recognize what’s being done, and why. The “war on terror” brings us into conflict with a sector of the world where, for whatever reason, we find ourselves less able to effect real change than we have been in previous conflicts. This phenomenon needn’t be explained by reference to overwrought hand-wringing and existential doubt about “American decline” — it’s just a different challenge, and one that can’t be addressed by the talents we’ve developed in waging (and winning) prior wars. We cannot, for example, rely on European allies to provide bases, intelligence, and support — and we’ve simply never tried to create an ally, much less from such foreign materials.

Considering the circumstances, we shouldn’t be ashamed of approaching a new problem with a new solution. The invention here is realizing that “American exceptionalism” — the American concept — isn’t a means, and so has nothing to do with warfare. It’s an end, and has everything to do with trading authoritarianism for self-determination. This strategy of “leading from behind the scenes,” and with modesty where the situation demands it, is leadership still, and a triumphant vindication of American exceptionalism from a President who cares more about results than swagger. It’s about time.

Stuxnet: a Hypothetical on the Changing Face of Unilateral War Power Problem

On this site, we’ve spent a fair bit of time arguing about whether the current military action in Libya was “authorized” (no), whether it therefore becomes unconstitutional (no), and whether it should be unconstitutional (maybe). Here’s a variant on the theme. Can the President order a cyber attack on a foreign power, despite the absence of a declared war, which results in property damage and could result in the loss of life, without consulting Congress? Does it matter if the attack must remain absolutely secret to succeed? And does it matter if, should the attack be traced to the United States, it could result in an all-out shooting war?

Admittedly, this doesn’t fall easily within the traditional definition of a “war.” But neither do targeted missile strikes. Some background first.

The facts

Really, you should read the linked article (and other takes on the same). But for your convenience, Stuxnet was an extremely sophisticated computer virus, released late in the last decade, indisputably designed to target centrifuges at Iranian nuclear facilities and to wear them out at an accelerated rate, thereby delaying Iran’s development of a nuclear warhead. The nature of the facilities targeted, and the virus’ method of transmission, mean that the virus must have been introduced by hand into the facility. And, further, it must have been designed based on extremely high-level information. The coders had to know, for example, the software used by the centrifuge control computers, the number of centrifuges, their operating frequency, and more. Suffice it to say, the developers required (and obtained) a level of information that could only have been gathered two means: (1) insider knowledge, or (2) concerted and successful espionage.

On this basis, and some other clues, we suspect (but nobody knows) that either the United States, Israel, or both developed Stuxnet, and deployed it with the goal of dealing an untraceable but severe tactical blow to Iran’s nuclear program. We also don’t know how well the program succeeded. So to get to an interesting hypothetical, we have to make some things up.

The assumptions

For the purposes of the below, let’s make four assumptions. First, assume that the United States deployed Stuxnet. Second, assume that the property damage was severe, even irreparable. Third, assume that, since we are talking about nuclear physics, the potential for loss of life was present, if not severe. Even if Stuxnet clearly doesn’t check that third box, it proves we’re not far from a world where a virus could do just that. Fourth, assume a nontrivial (but still small) risk of Iran tracing the virus back to the United States.

To summarize: on the assumed facts, for this hypothetical Stuxnet represents the targeted, state-sponsored neutralization of physical military assets under the control of a foreign power.

The morality

On these facts, I think using the virus to forestall the threat of a nuclear Iran, and the consequences that would entail, is not only a moral act, but an imperative. Even at the risk of explosions and possible death, neutralizing a real threat the national security of America and her allies, posed by an implacable foe, without any initial risk to American lives, is a net good by my conception of statesmanship.  Although it risks war, Iran would not (and could not) fight on just this provocation. So, it’s essentially a costless tactical strike.

The law

As I see it, such strikes, even without express or implied Congressional approval, are not just moral, but fall squarely within the President’s commander-in-chief power. Stuxnet’s deployment clearly doesn’t qualify as anything near to a “war,” and the need for both secrecy and immediacy implicates the Federalist concern for the Executive’s “Energy.” Like Libya, no American lives are immediately risked, so the War Powers Act does not plausibly apply. And, this is the type of project we’ve typically relegated to the role of espionage. Bullets have long been traded between American and foreign agents without a declaration of war, and only on the Executive Branch’s say-so. Because Stuxnet is closer to espionage than an actual war, it’s not the type of event that even raises a War Powers Resolution issue.

The problem

But why? Notice how outdated the significant criteria listed above start to sound. We’re coming close to the day when a full, all-out “war” could be started and won inside of a day, and all electronically. Presumably a series of Stuxnet-type viruses could, triggered at once, decimate an undeclared enemy nation’s power grid. On my analysis — unless scale or likely result somehow matter to the legal analysis — the President could take that action, which would actually commit us to a war, on his own. Shouldn’t that be problematic?

Notice, too, that the President’s power to deploy a Stuxnet-type weapon feels like an easier case than Libya, and an easier case, even, than deploying Predator drones. Again — why? How different from Libya is a theoretical state-sponsored Stuxnet attack, anyways? Is it the actual death of enemy combatants in Libya that changes the character of the conflict? Or is it that missile launches look more like a traditional “war” than computer attacks? Here, too, these distinctions are decreasingly meaningful in a world where we can theoretically cripple foreign military assets without ground invasion and, now, without ever even firing a shot.

The face of warfare has changed. To a lot of us, Libya feels like a real constitutional problem; but if Stuxnet-type viruses see widespread adoption as weapons of war, the problem is going to get much worse before it gets better. To head off the developing difficulty, we should start to design a model for limiting unilateral warfare based on those values that actually matter to us. For me, at least, that means focusing on two factors: (1) the loss of American lives and, (2) the risk of large-scale geopolitical commitment.

I don’t think we can read values like this into the constitution, unless we acknowledge the the constitutional commitment of the “war” power to the legislature works only so long as “war,” as it’s commonly known, is a perfect proxy for the kind of international conflicts we want to all agree upon before starting. But I don’t think that assumption holds water anymore. What can we do about that?

Some Thoughts on Being in Power

In a few weeks’ time, we’re going to be filing a complaint against the federal government for, well, a stereotypically liberal cause, arguing a stereotypically liberal claim. It goes without saying that we’re absolutely, 100% going to win — really! Or we should. But a reaction I’ve had while preparing is, didn’t we put our guy in the White House so we wouldn’t have to start these types of cases in the first place? Shouldn’t an ideal liberal — who, dammit, we deserve — do these things of his own accord?

Yes and no. Something I think we forgot in the long twilight of the Bush years is, there’s a difference between theory and practice, and when you ask someone to run a huge country, in the interest of both its diverse population and the world we often find ourselves leading, the ideas you asked him to implement, once in office, must yield to both the practical realities of governing, and the political realities of compromise. And, still more issues will get lost in the shuffle of day-to-day management. My generation will probably spend a good part of our professional lives unwinding the damage inflicted on this country by our last President; that bizarre, built-in ideological biases persist throughout the U.S. Code should be unsurprising, when they had 8 productive years to create them, and we’ve had 2-and-a-half years to solve full-blown crises, and unwind the various inequities Bush introduced into the country.

And, there’s a sense in which we don’t actually want total victory mandated by presidential/congressional fiat. One of the worst problems of the Bush years was how profoundly and thoroughly the party-in-charge ignored, or suppressed competing viewpoints. If we build (or simply allow) a more representative society, where ideological purity is no longer a moral imperative, we’ll have governed justly, and be more likely to be allowed to continue doing so. If you follow.

This isn’t to say that private actors, in the form of public interest groups and their pro bono corporate lawyers, shouldn’t force the government’s hand. Quite the opposite. There’s value in private advocacy, especially because nongovernment actors aren’t bound by the same representative duty. Think of it as the legal equivalent of privateering. But all of this is to say, we’re allowed to (and should expect to) disagree with the government, still. Each individual conflict just represents a need for new methods of advocacy, but needn’t mature into food for concern trolls.

Picking a Better Framework for Starting (and Maintaining) Wars

A while back, I argued that because the War Powers Resolution doesn’t treat anything less than a ground war as a war, Obama’s handling of Libya is, whatever else it may be, constitutional. I still think that’s true: the legislative history plainly contemplates restricting only the President’s right to start a ground war, and the text of the statute speaks in terms of American “forces.” A missile isn’t a “force”; so this isn’t legally a “war.”

This reading of the WPR doesn’t mean that Libya isn’t a “war” within the common parlance, or that a missile strike on American soil wouldn’t be the start of a “war.” It just means that, for the purposes of the statute, “war” becomes a term of art with a specific legal meaning.

Reading the WPR in this limited way might make it an artifact of its time. The kind of power-projection we undertake today, and the strategy implicated in Libya, is of a decidedly post-Cold War vintage. In the Cold War, we worried about limiting the use of nuclear weapons (which is provided for separately), and the unilateral commencement of a ground war (covered by the WPR). Missile- and drone-strikes on non-state actors, or for the purposes of disrupting the same, are new inventions, unique to the war on terror; plainly not something the drafters of the WPR would have considered important; and so, remain unregulated.

Maybe that’s not the way it should be. Unilateral missile- and drone-strikes are quite capable of starting an all-out war, ultimately requiring the commitment of ground forces, and endangering American lives. That fear isn’t present in Libya, so “as-applied,” this limitation to the WPR makes sense. But if Congress’ goal was to restrain the President’s ability to start, on his own say-so, an all-out shooting war, it doesn’t follow that the President can order strikes on any target, on his own authority. The WPR should, if it is to have any meaning, prevent the President from ordering missile strikes on France, say, or Russia, as both countries could (and would) retaliate, leading to an all-out war that couldn’t help but endanger American lives.

What the WPR should do, then, is to speak in terms of probabilities. It already does, to a certain extent. As written, the resolution asks the President to submit to report & review where “United States Armed Forces are introduced”  ”into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” 33 U.S.C. § 1543(a)(1). To close the enforcement gap, all that’s needed is a little more generality. The WPR should regulate situations where “United States military power is expended” in furtherance of “hostilities, or in situations where involvement in hostilities is a natural, intended, or probable result.”

But as of now, it doesn’t, meaning President Obama’s actions remain on the level. Technically.

The “Bush-Obama” View of Warfare

Joe Scarborough rightly tags a particularly absurd nascent media narrative: that the GOP’s opposition to President Obama’s Libya intervention constitutes “isolationism.” It doesn’t. First, to ascribe a particular ideological label to the Republican Party’s position here posits an actual, unitary, coherent worldview. Maybe that’s a reasonable assumption with other major political actors, but the Republican Party’s only worldview since 2008 has been opportunism. Functionaries perceive Obama as vulnerable on Libya, so they attack. There’s nothing more behind it, and certainly no principles in play.

Second, Joe is right that there’s substantial daylight between a principled opposition to the Libya intervention, and isolationism. But his description of a unitary “Bush-Obama style of warfare” demonstrates an unwillingness to apply that same scrutiny elsewhere. It should go without saying that beginning a small-scale intervention, without troop commitment and acting only with true international support, is distinct from the unilateral commencement of an all-out ground war (though we shouldn’t “forget Poland“). The two Presidents’ goals are similar: the reshaping of a region into something more favorable to American interests. But the difference between the means employed to that end speaks to a vast difference between the two men — one obvious anytime you look at the price tag of Bush’s adventure, both in lives and in dollars.

Libya proves that Obama shares with Bush a certain willingness to fight and, at an abstract level, comfort with deploying military force to protect American interests. But I don’t believe it speaks to any other similarity whatsoever. Not all military actions are created equal.

Non-Delegation and Perpetual War

Set aside for a minute bizarre tea party concerns with the administrative state (a.k.a, “socialism”): agencies are here to stay. They’re valuable things, subject-matter experts with both the time and knowledge to solve problems well. But they’re not little legislatures. The Constitution vests Congress with the legislative power, and only Congress; for an agency to take even a quasi-legislative act, its power must derive from Congress’, typically through the explicit, and limited, delegation of authority.

For a delegation to be effective, Congress must tell the agency precisely what task it may accomplish. That any delegation of power requires such an “intelligible principle” is a bedrock rule of administrative law, dating to the dawn of the administrative state. The rule exists to prevent Congress from (essentially) delegating itself out of existence, an incentive legislators would otherwise face, especially on hot-button issues. To the extent that the nondelegation doctrine survives, it requires legislators to tell the recipient of delegated power generally what it wants done, and how to accomplish it. For example, it will not do for Congress to simply instruct the SEC to stabilize the capital markets; it must tell the SEC how it is to accomplish this goal.

There’s a way to look at the declaration of war as a similar administrative action. As we highlighted last week, the modern “declaration” takes the form of an “authorization for the use of military force,” which both checks the War Powers Act box, and permits, essentially, all military action the President may deem necessary to accomplish Congress’ chosen objective, subject only to external limits. Acting under an AUMF, the President “personif[ies] the federal sovereign,” and necessary military acts will only rarely be gainsaid.

Functionally, Congress delegates its warmaking power for the duration of the conflict, but the scope of the President’s delegated authority is always confined by the specific limits of Congress’ authorization. The President’s war powers are limited, in other words, by what we would call in the administrative context an intelligible principle: “win this war,” not, “make the world safe for America.”

All AUMFs in recent memory contain such a principle. The September 2011 AUMF comes the closest to a general grant of war power, but even there, the President could only take all:

necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

This is a finite grant — it outlines an achievable goal, and one we’re closer to achieving than ever. But the closer we get to achieving this narrow goal, the more it looks like just one part of a larger mission, one that verges on the impossible: the eradication of global terror.

By definition, such a war may never end, and it also may be one we’re obligated to fight. But perpetual war comes with serious practical problems — and to that we add a legal problem. I don’t see, at least as it stands, how Congress can authorize war against an unnamed, faceless, amorphous foe, without completely delegating away its constitutional duty (and responsibility) to declare war. Without an intelligible and limited principle, this delegation would (and probably should) be unconstitutional.

That’s not the end of the inquiry: if we need to fight such a war, we’ll figure out how to do it. All of the above means only that when we do, we’ll probably have to reinvent a good deal of our war powers framework. And that’s a process we’ll want to undertake carefully, with our eyes open to the risks.