Posted by Kenneth Anderson: What in the War on Terror Will the Obama Bring to Congress? http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1244993676
The Washington Post ran a news story on Friday (June 12, 2009, A1), titled [1]"Obama Bows on Settling Detainees: Administration Gives Up on Bringing Cleared Inmates to U.S., Officials Say." The article goes on to describe the situation of the Uighurs and how the administration, faced with revolt by his own party in Congress, and what amounts to a legislative rejection of bringing them or any other Guantanamo detainees to any place in particular actually in a Congressional district in the United States in which voters might reside, is trying to devise Plan B. Plan B in the case of the Uighurs involves buying off Palau with $200 million. But most particularly, Plan B, whatever it is, at least for now does not seem to involve going to Congress to get authority to do anything regarding Guantanamo. This runs contrary to what Obama said in his [2]much-noticed security speech at the National Archive on May 21, 2009. The title of the speech, after all, sounded like a [3]book by Benjamin Wittes, or the loosely unifying theme of the [4]Hoover Institution Task Force on National Security and Law: "Protecting Our Security and Our Values." It teed up Congress to work with the Administration to provide a long term framework for counterterrorism. Certainly that was how Ronald Brownstein heard the speech, in an article in the National Journal, "[5]Can Congress Step Up on Security?" Is any of that happening, and/or does it appear that it actually will happen? Is the administration going to Congress, does it really plan to do so, and if so, on what issues? I am going to skip over the usual listing of ways in which it would appear the new guard is the same as the old guard, etc., etc. - not that it's not important, but it's worth a whole post on its own. What I want to ask here is much more specific than that, so please confine comments to this particular question: Is there anything so far in the War on Terror in which the Administration has gone to Congress for legislation and authority? Is there anything in the War on Terror for which the Administration plans to go to Congress for authority? Really, truly will go to Congress? Is pretty darn likely to go to Congress? Or, notwithstanding the speech, did the administration learn a very different lesson from the Guanantamo rejection by Congress? I'm prepared to be corrected, because I haven't been following this minutely, and I might have missed some things, but offhand I can't think of anything so far it has sought and obtained from Congress in revamping the War on Terror. Am I wrong on that specific issue of seeking, and obtaining, legislation? Have I missed something? Granted, the Obama administration is not necessarily proceeding on the basis of pure assertion of executive authority. It is able to proceed, at least in part, on the basis of legislation sought (finally) by the Bush administration - the Military Commissions Act, for example. Nonetheless, I am trying to understand the extent to which the Obama administration is (a) seeking, and obtaining or not, Congressional legislation to regularize the War on Terror, or whatever name we are now calling it, (b) proceeding on the basis of Bush-era legislation, such as the MCA, or (c) proceeding by the exercise of executive authority, apart from specific Bush-era legislation. The speech suggested (a); I am not sure I see evidence of that, now or looking to the future, except for the assertions in the speech itself. On the contrary, the brief but unhappy experience of getting slammed by Congress on bringing detainees to US territory seems, unsurprisingly, to have raised the bar for going to Congress again on any of these issues. To the extent that (c) is the case. For people like me, who have written that a primary problem - indeed, perhaps the signal systemtic domestic problem of the Bush administration War on Terror - was the administration's adamant refusal to go to Congress in order to get both political branches on the same page through legislation, this raises many, many questions. My position since 2002 has been that the Bush administration should have gone to Congress - partly for the political solidarity; partly because in taking actions so drastic it was the democratically proper thing to do; and partly to have the legal shield of the most powerful of the Youngstown categories, the two political branches acting on a question of vital national security and foreign policy in concert, so to forestall Justice Kennedy becoming Proconsul Kennedy - rather than asserting executive power as the sole basis by which to act. As I put it in a piece a couple of years ago in the [6]New York Times Magazine (you can kind of tell from the title - "It's Congress's War, Too"), and again in [7]Policy Review, if policy lives by executive discretion, it also dies by executive discretion. Even if (b) is the case - the administration doesn't need to go to Congress for very much, because it has the specific legislative authority via the MCA and other, earlier enactments - rather than the pure exercise of executive power, I can't say I'm very happy. I had thought - hoped, indeed - that either an Obama or McCain administration would use the prestige that either one of them would bring to the political table to put the deep tradeoffs of national security and civil liberties in a considered long term legislative arrangement proposed and negotiated by the administration with Congress. When the election produced both Obama and a heavily Democratic Congress, I thought this was a done deal, even if I doubted I would be especially happy with particular substantive parts of the deal. To that end, I've been participating in various projects, such as Benjamin Wittes's forthcoming edited volume titled, funnily enough, [8]Legislating the War on Terror: An Agenda for Reform. So I am looking around and trying to figure out whether there will be new legislation, whether comprehensive or piecemeal, to address such things as trials, detention, interrogation, Guantanamo, state secrets, surveillance, national security courts, and other things. Apart from the national security speech, what is the evidence for or against the proposition? Additional thought: (There is, by the way, another angle on this that is different from either the "meet the new boss, same as the old boss," or the "will they legislate anything?" memes. It is also worth an additional post, so I will only mention it here in passing. Back in the pieces I mentioned above, but particularly and forcefully in Jack Goldsmith's The Terror Presidency (a Brilliant and Remarkable review of which you can read [9]here in the Times LIterary Supplement, by the way), it was noted that the Bush administration's policies were extraordinarily lawyer-driven, very protective - excessively protective of the executive's litigation positions, as it were, even where those legal positions were light-years away from what the realistic policies might turn out to be. One might or might not agree with that; I'll post on it another day. The question now raised under the Obama administration is whether it actually has the same syndrome - and, if anything, more of it, because it has still more and more skilled lawyers with all the benefits of hindsight and, in many cases, having the been the Bush administration tormentors during those earlier years. Now, finding themselves in power, "they" now being "them," they are even more mindful of the need to protect the adminstration's litigation positions, and do so even at, as The Terror Presidency notes, the expense of actual, conceivable policy. When the lawyers are in charge of policy in the name of protecting the maximum position in litigation, zealous advocacy can become a disaster for crafting the sensible, non-maximalist policies that were all the non-lawyers wanted all along. But this I will leave for another post. Despite my having raised this here, I would be very grateful if comments would go to the main part of the post, and tell me what, if anything, is or is going to get legislated, and to what extent this is an exercise in pure executive discretion, and to what extent it is simply operationalizing the already passed legislation such as the MCA. Thanks.) References 1. http://www.washingtonpost.com/wp-dyn/content/article/2009/06/11/AR2009061101210.html?hpid=topnews 2. http://www.realclearpolitics.com/articles/2009/05/21/obama_guantanamo_speech_transcript_96610.html 3. http://www.amazon.com/Law-Long-War-Future-Justice/dp/159420179X 4. http://www.hoover.org/taskforces/taskforces/nationalsecurity 5. http://www.nationaljournal.com/njmagazine/nj_20090530_6572.php 6. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=928083 7. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=935394 8. http://www.brookings.edu/press/Books/2009/legislatingthewaronterror.aspx 9. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1078624 _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
