War

Neocon Support for Libya Bespeaks Caution: Clarifying War Powers

It’s charming to see ultra-conservative Mark Levin rush to Obama’s defense, against charges that the war in Libya was started illegally. And equally satisfying to see him get the justification so very wrong. Says Mark Levin, declarations of war are mere formalities, which can be dispensed with unless (and until) you need money to run the war:

When members of Congress vote to fund [non-defensive military action], they are giving their formal, official consent to the operations.  More than voting to declare war, they are actually voting to fund war — all kinds of war.  [. . .]  The declarations were not used as constitutional requisites for war, but to rally the nation and assert our resolve.  But once Congress has funded a military operation, and it funds virtually all of them, it is undoubtedly helping to make war for without the funds there can be no war.

This is a bridge too far, and makes a nullity of the textual requirement that Congress, and only Congress, can “declare” war. We’re presented with two textual commands on the subject of war. First, the President is the Commander in Chief of the armed forces. This is a dead letter unless the President can turn on a dime without congressional say-so, to protect the United States or seize an important military opportunity. Second, we’re told that Congress alone can declare war. This affirmative grant of exclusive authority cannot reduce to nothing more than a restatement of Congress’ power to allocate funds. Neither courts nor commentators ever adopt a view of the Constitution that renders important language redundant.

Any meaningful analysis of the President’s war powers must be a synthesis of the two. I (and most reasonable persons) combine the two provisions to conclude that the President can engage in short-term military action, or deploy forces without starting a shooting war, but the President needs Congress’ permission to bring the nation into an extended actual conflict.  History supports this view: World War II was declared (Levin’s handwaving notwithstanding), and so was the “war on terror.” But the Cold War was not. Nor was Jefferson’s Tripoli action.

The Obama Administration has adopted the sensible middle ground on war powers, nothing more. We shouldn’t flip out; our enemies shouldn’t rejoice; and we should note that, yet again, the President has proved to the American people that he is neither the ideologue nor the weakling his opponents believe him to be.

Presidential Character Arcs: Executive Power

The National Review joins publications on both sides of the aisle nailing President Obama for breaking his promise to avoid undeclared, unilateral wars.

Two problems. First, on the indicated text, candidate Obama made no such promise. Nor would it have been responsible for him to do so. Second, query whether a promise to avoid undeclared, unilateral war is broken by engaging in an undeclared, multilateral enforcement action undertaken with the United Nations’ blessing, and essentially at its request. We liberals should be happy for the following: Obama’s decision to wait for an international consensus partially ratifies our response to the Iraq War. If you make a good faith effort to secure that consensus, sometimes you get it. If you don’t make the effort, well, maybe it’s because you know you don’t deserve it.

Separately, to the extent that the President’s opinions on the use of force have changed, well, shouldn’t we expect them to? It’s a general theme of this presidency, and most presidencies, that the job differs from even your reasonable expectations. Obama walked into the Office to close Guantanamo; but on finding himself bound by Bush’s blood-soaked handcuffs, stayed his hand. He walked into the Office to give Americans the option of a government-run healthcare plan; but a staggering and coordinated overreaction, backed by misinformation the likes of which I’ve never seen, prevented the same. He walked into the Office to avoid committing American arms without Congress’ informed say-so; but, well, it’s more complicated than that, isn’t it?

We should expect our Presidents to learn. Because when they don’t, and walk out of the Office again without having learned a damn thing and without believing themselves to have made a single mistake, we will have suffered for that lack of critical thought. I was under the impression we elected a man we could trust to make informed judgment calls (with some mild preference for “liberal” outcomes), rather than a partisan hack, like the man he replaced. Didn’t we?

As usual, The West Wing handles the problem elegantly. No-one expects war to be what it is.

War Powers

I’m baffled by a conservatism that proudly proclaims the righteousness of Bush’s war of impulse, yet denounces the current Libya adventure as “illegal.” Granted, the Iraq War was duly authorized — albeit on knowingly incomplete information, recklessly relied on — but this is the conservative movement that trumpeted Congress’ 9/11 authorization of the use of military force (AUMF) as sufficient to cover (1) torture, (2) indefinite detention, (3) domestic wiretapping, (4) congressional blacksites, and even (5) the Iraq War itself, making the separate congressional vote essentially a box-checking exercise. Truly, if you’re not disgusted by the empty and ad hoc nature of modern Republicans — to wit, “we’re for what they’re against, and nothing else” — you’re not paying attention.

It is a separate question altogether of whether Obama should have sought broader consultation before committing American firepower, if not American troops, to depose a dictator; and whether he’s broken a campaign promise. Regardless of the same, left and right ought to be able to agree on the following, and apply it equally to a conflict entered into by either “side”:

This sort of exercise, committing American arms but not American lives, is exactly the sort of thing the Constitution’s drafters had in mind when they crafted the Presidency. The President can and must respond with “energy” to protect American interests. Democracy in an otherwise hostile region is one such interest, as our honourable friends opposite would surely tell you, were the man behind the Resolute Desk not a Democrat.

Neither established law, nor history are to the contrary. The War Powers Act specifically authorizes the executive to conduct limited war without Congress’ involvement. Granted, the Act’s constitutionality is not entirely clear. I for one rather expect that we meant what we said, when we committed the power to declare war specifically to the Congress. But nor is this a war as Jefferson would’ve understood it. There are no boots on the ground, nor will there be any. Instead, missiles and planes represent precisely the kind of quick-strike force that the President has always had at his disposal, except here, the risk of lost American lives is even smaller than the one that Jefferson unilaterally undertook when attacking Tripoli. And although the President has greatly increased the chance of a shooting war, this is a risk that we entrust to him and his cabinet on a daily basis. What else is foreign policy?

Reactions on left and right demonstrate two things, respectively: the right will never trust this President, and the left will never fully trust presidential power (even when exercised pursuant to a United Nations resolution, diplomacy’s get-out-of-jail-free card). Both need to get over it.

Update: the National Review, per knee-jerk Ramesh Ponnuru, joins the Washington Times in calling the firing of some missiles unconstitutional.

The Illusory Status of the Enemy Combatant

Over the course of the past week, we focused on the media’s dominant line of discussion about the January 8th shooting in Tucson, Arizona — namely, whether the chance of violence, made manifest by this particular madman, necessitates a nationwide reevaluation of political discourse. We answered in the affirmative and, for the sake of completeness, now acknowledge, as well, our disappointment in the rarer and smaller madmen on our side. Ear necklaces? Really? This guy’s read a little too much Cormac McCarthy.

This analysis, though, to the detriment of other lessons we can take. Here’s another. Jared Loughner, the suspect in the rampage, will stand trial for his crimes. This despite the fact that he attempted to assassinate a sitting congresswoman, and in the process, killed a federal judge. The planned murder of an elected official fits most definitions of domestic terrorism; and yet no less of a voice than Richard Epstein, writing for no less of an august publication than the National Review Online, notes that the trial, to be conducted by one of the best criminal lawyers around, will inspire “greater confidence” in the eventual guilty verdict, and prove that the system works.

We agree entirely. The system does work and will work again. But why aren’t we so sure of our convictions in other cases?

Jared will face American justice for a crime committed against the American people. And yet, but for the absence of an allegation (not proof) that Jared shot Congresswoman Giffords in furtherance of a political agenda, and the absence of an allegation (not proof) of his affiliation with a foreign power, the entirety of NRO, and every conservative politician anywhere, would be yelling, at the top of their lungs, for Jared to rot in a Charleston military brig, or in another prison cut off from civilian justice, and calling the President a coward for not making it so. Remember, the Bush administration defined “enemy combatants” based not on verifiable evidence, but on the ipse dixit of low-level State Department bureaucrats, themselves often acting only on the basis of information received from our foreign enemies themselves. Take the case of Hozaifa Parhat, held in Guantanamo Bay for three years because China found it easy and convenient to dupe the Bush administration into thinking an anti-China partisan was an anti-American partisan.

In our minds, we build up a wall between the terms “criminal” and “terrorist”; but the real world keeps knocking it down. Surely some distinction exists, and maybe even should compel restricted procedural rights for true terrorists. But we haven’t yet hit on that definition, in theory or in practice.

Nuclear Realism*: The Red Herring of “Missile Shields”

Before I’m called to account by someone else with political training, I mean realism, as in, life lived in a reality-based world, not realism, the school of foreign policy. There.

Now. If you’ve read Sarah Palin’s position on the New START treaty, such as it is, you’re probably wondering, huh? The half-term governor manages to obscure her argument so well, that one wonders whether her utter disconnect from the facts of the treaty owes more to mendacity, or simple incompetence. As it turns out, first the latter, then the former.

Current Republican opposition to New START stems from a position first articulated, in its most cogent form, by John Yoo, the architect of America’s abusive detention policies, who famously justified torture by misquoting a passage from Medicare law; and John Bolton, the diplomat who views diplomacy as something approximating an inconvenience. Why we should trust such persons to resolve matters of state is beyond me, but here we are. In an op-ed in last month’s New York Times, the two Johns build their case against the treaty by emphasizing the danger of ineffectual precatory language, and blasting President Obama’s attempt to mitigate the nonexistent danger through, well, nonexistent precatory language.

Stated more clearly, the conservative case against New START points to language in the preamble acknowledging a simple reality, that deterrence depends upon both missiles, and missile shields:

New Start also reflects the Obama administration’s lack of seriousness about national missile defense. Its preamble accepts an unspecified “interrelationship” between nuclear weapons and defensive systems. Politically, even if not in treaty language, the Russians get what they want: no significant United States efforts on missile defense.

Of course, it is the “black letter law” of national defense policy that missile defense shields undermine nuclear policy, by upsetting the current paradigm of mutual deterrence. Bolton & Yoo correctly indicate that acknowledging this relationship could be construed as a concession to Russia, whose leadership hopes that America will remember this point, and abstain from building a missile shield accordingly. But it is a pointless concession. Preambulatory language places America under no legal obligation to do or not do anything. You might as well argue that legislative “findings” about the “sanctity of life” somehow ban the death penalty. This is not how laws or treaties work, and the Johns know it. God help us if they don’t.

But more to the point, if the treaty did prevent construction of a missile shield… so what? Nota bene to the Republican base, but “missile shields” don’t work, and there is no “missile shield” to “reinstate.” America has never had an active, functional, effective missile defense program. The technology actually does not exist. One might as well “reinstate” Starfleet. It’d be nice if we had a missile defense program, but it would also be nice if we had a fleet of faster-than-light starships. As it stands, the two are equally plausible.

Even modest missile defense schema have proven spectacular, and recent, failures, whose existence proves only that, despite the program’s hitherto quixotic nature, the President actually has no intent of abandoning missile defense plans, as the Johns assume without evidence. In fact, Obama’s focus on boost-phase interception has taken missile defense the closest to reality that it has ever been, with no end in sight. Should this fear keep you up at night, rest assured: contrary to the suggestions of a war criminal and an ideologue, this President will not abandon America’s commitment to ineffective, ludicrously expensive missile defense technology, and has not pledged to do so.

Missile treaties are serious matters that may be met with serious criticism. A treaty that took America’s probable second-strike capability below 300 megatons — the tonnage required to, under conservative estimates, wipe Russia’s population from the planet after a first-strike — would seriously compromise our deterrent capability. No-one has alleged that New START would so cripple our defense, because they cannot. This is the irreducible bottom line of nuclear missile reduction. All other figures are beside the point. The failure of conservative politicians to engage on this simple issue tells you all you need to know about New START. Ignore distractions; pass the damn treaty.

NRO Botches the Law, Again: Ghailani Decision Attributable to Torture

For the National Review, Andy McCarthy strains to avoid the conclusion that Bush-era torture and coerced interrogation resulted in Mr. Ghailani’s acquittal on all but one count:

Judge Kaplan assumed that the alien terrorist had a Fifth Amendment privilege, and the Obama administration does not seem to have contested that assumption. This led the judge to conclude that the “fruit of the poisonous tree” doctrine applied. To permit the witness’s testimony, Kaplan reasoned, would violate Ghailani’s purported Fifth Amendment rights – i.e., evidence traceable to the CIA’s interrogation would be introduced against him. But there was nothing “poisonous” about what the CIA did – they were not rogue cops kicking down an American citizen’s door without a warrant; they were gathering life-saving intelligence from a foreign enemy during wartime. And, again, a witness’s testimony is not really the “fruit” of that tree; it is related but independent in a way the substance of the confession is not.

I think the administration should have appealed and should not have conceded Ghailani full Fifth Amendment protection.

McCarthy conflates the Fourth and Fifth Amendments (and also misstates the rule on the required nexus between coercion and exclusion… but that’s another story). The “fruit of the poisonous tree” rule applies in Fourth Amendment exclusionary proceedings: but in the Ghailani case, the Fourth Amendment was at work in the background, but Fifth Amendment concerns independently supported the exclusion of key testimony. Not only was Ghailani coerced into a confession, rendering the confession both unreliable and inadmissible under the Fourth Amendment, but the Fifth Amendment separately protects against self-incrimination. From Human Rights Watch:

A controversial issue at the trial, which could be raised in the 9/11 trial, was the use of evidence obtained from the defendant while he was in CIA custody.  In pretrial proceedings in September, Judge Lewis A. Kaplan excluded testimony from a witness whose identity was obtained during Ghailani’s coercive interrogation in CIA custody. The judge ruled that its admission was barred by the Fifth Amendment to the United States Constitution, which prohibits self-incrimination. Despite the exclusion of the evidence from trial, the prosecution was able to prove its case using other witnesses and documentary evidence.

The New York Law Journal saw the full (and hitherto unpublished) exclusionary ruling, and concurs. Critically, the Fifth Amendment unmistakably applies abroad. Reid v. Covert, 354 U.S. 1 (1957). McCarthy’s insistence that the Obama Department of Justice should have appealed against settled law illustrates the general conservative disinterest in and distrust of the law as anything other than a partisan tool. But, thankfully for the rest of us, constitutional rules don’t drop just because they’re unpopular when applied to minorities.

Oh, and interlocutory appeals are tough, especially because (assuming the court could acquire appellate jurisdiction) Fourth and Fifth Amendment exclusionary decisions are fact-based; an appellate court would’ve been bound to accept the facts; and could therefore only have dispensed with the lower court’s ruling if it decided that the Fifth Amendment wasn’t a thing.

If the only way to exclude torture as a causative factor here is to suggest that Obama should’ve taken a long-shot interlocutory appeal on frozen facts against a rule of law that’s been on the books for fifty years, and tried to hoodwink the appellate court by blurring the distinction between two separate and fully developed constitutional amendments, well, no. The law doesn’t work that way. Thank God.

The Responsible Alternative to “Truth Commissions”

…and prosecutions of high-level Bush administration officials:

The British government planned to give details on Tuesday of highly unusual compensation payments to former detainees at Guantánamo Bay who have complained that the British intelligence agencies colluded in their torture, news reports said. [. . . .]

The Transparent Cowardice of Giving Up on Civilian Trials

Greenwald and the Washington Post break the bad news that the White House, sub silentio, may have finally given up on civilian trials for Khalid Sheikh Mohammed and other high level accused terrorists:

Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters. . . .

We say “accused” because absent a conviction, that’s what they are. Guilt is a legal construct, and although logic and evidence support the conclusion that KSM will one day bear that label, absent a court’s order, “accused” is all that we can call him.

The highlighting is Greenwald’s. To be clear, political opposition should not weigh into an administration’s decision about whether and how to comply with constitutional law, but here, especially, politics should play no part. The trial of executive detainees is an executive decision. No legislator can stop the President from trying KSM in a federal court, and no executive appointee can stand in the President’s way. Legislators and state officials can (and should) make noise if it will help them keep their jobs. I’m disappointed in Cuomo for opposing a trial in New York, but ultimately, this signal is costless, because the decision is not his in any meaningful way.

Because other politicians can distance themselves from Obama, the President’s role as party leader, responsible for crafting a moderate and appealing message, should not weigh on him. His only obligation is to faithfully execute the laws. The failure to promptly try detainees (where possible) in American courts will represent a dereliction of that first duty.

The Balanced Budget, and Why It Won’t Happen (Reason One of Many)

It’s come to this: Esquire, a men’s magazine (although a reputable one), has put together a plan for slashing the federal deficit more comprehensive than anything put on the table by the Republican Party. Or the Democratic Party, for that matter, but let’s focus on the Republicans, because they’re the ones who’ve put themselves in the ludicrous position of (1) campaigning on this issue, while simultaneously (2) campaigning on issues that render the goal impossible.

Anyways, Esquire’s plan is both aggressive and feasible, but ultimately impossible. As made plain by the plan, the clearest chance for savings comes in cuts to military budgets to accomodate and respond to the new defense paradigm: as surely as Napoleonic line-warfare ended with World War I, the era of pitched battles between nation-states is long-gone. America’s goal must not be to field a large force at home or in Europe — because we will likely never need to, ever again — but to project power strategically. Carrier groups and small strike forces become more important than tanks and infantry divisions. Retooling the American military to meet new challenges and maintain global hegemony, efficiently, is a necessary and worthwhile goal, but not one that the current political climate will tolerate. Our oversized military (and nuclear arsenal, too) have become the American equivalent of the British monarchy: something expensive we keep around as a matter of irrational national pride, rather than out of any need.

If American military power can be retained and enhanced by emphasizing effectiveness rather than size, and while cutting the budget, it should go without saying that this is worth exploring.  But as it stands, it will go without ever being said.

The Third Branch Takes on Torture; Why They’ll Fail

Oops, forgot to publish.

As an alternative to the possiblity of reparations, or truth & reconciliation for victims of torture or unnecessary detention, lawyers from my own favorite law school, with the ACLU, have sued John Ashcroft in the name of one man, Abdullah Al-Kidd, seeking damages for his illegal and inexplicable detention. They’ve met with a measure of success, winning at the Ninth Circuit in a particularly ringing opinion (pdf), but the Supreme Court just took certiorari, and that’s bad. Here’s why.

 Al-Kidd’s case is premised on the ancient Bivens doctrine. Under basic constitutional law, the theory goes, grants of particular rights confer a right, but not (of their own force) a remedy. The Fourth Amendment says what the police can’t do, e.g., and while you can win the suppression of evidence on that basis alone as a matter of equity, `you can’t obtain legal relief. That is, money. To gain some form of relief not directly tailored to the enforcement of the right, you would need a private right of action, something that courts won’t presume, and Congress hasn’t authored.

(I do not address 42 U.S.C. § 1983. )

Bivens modifies this rule by finding particular constitutional rights “self-executing.” In other words, if someone violates your constitutional right, the document itself implies a remedy to make you whole, not just by letting you raise the right against some illegal act, but by permitting you to penalize the party that violated it in the first place. In the original Bivens case, the plaintiff was illegally searched. He won suppression of the evidence, and money.

This is essentially what Al-Kidd has requested, and what the Ninth Circuit gave him. As a matter of policy, it’s also a fairly elegant solution to the problem of illegal detention. The recourse for such crimes, since the Magna Carta, has always been the courts; it avoids the messy political process; and vindicates a vital right that the majority is, for whatever reason, disinclined to grant. Simply put, this is why we have courts.

Nonetheless, Mr. Al-Kidd should brace for a loss. Because a rigorously textual reading of the Constitution will necessarily fail to find an implied right of action, implied rights whether constitutional or statutory (with the exception of Rule 10b-5 and associated securities law remedies) have more or less died a silent death under the ascendancy of Justice Scalia.

Of course, this problem cries out for an answer. An honest Congress, though certainly not the one we’ll be left with after January 2010, would draft a statue explicitly permitting wronged parties to claim against government agents, and waive all immunities, whether sovereign or qualified, to ensure that America takes a first step to restoring her image as a nation that respects human rights, or at least makes up for them given time. In years to come, we will profoundly regret this error. But there’s no need to wait for then to start making up for it.