Posted by Jonathan Adler:
Why Obama Should Seek Legislative Support for Anti-Terror Policies:
http://volokh.com/archives/archive_2009_06_28-2009_07_04.shtml#1246569713
On Monday, Benjamin Wittes and Jack Goldsmith had an [1]op-ed in the
Washington Post arguing that the Obama Administration should not
replicate the Bush Administration's executive unilateralism in
national security policy.
Obama, to put it bluntly, seems poised for a nearly wholesale
adoption of the Bush administration's unilateral approach to
detention. The attraction is simple, seductive and familiar. The
legal arguments for unilateralism are strong in theory; past
presidents in shorter, traditional wars did not seek specific
congressional input on detention. Securing such input for our
current war, it turns out, is still hard. The unilateral approach,
by contrast, lets the president define the rules in ways that are
convenient for him and then dares the courts to say no.
This seductive logic, however, failed disastrously for Bush -- and
it will not serve Obama any better. Bush's approach avoided
congressional meddling but paradoxically sloughed off
counterterrorism policy on the courts. Over time, the judiciary
grew impatient with ad hoc detention procedures that lacked clear
and specific legislative authorization, and judges began imposing
novel and increasingly demanding rules on the commander in chief's
traditionally broad powers to detain enemy soldiers during war.
The result has been nearly eight years of unstable policy with no
safe harbor for executive conduct and no settled rules for
detainees. Ironically, one of the biggest casualties of this
misadventure was the executive authority the Bush administration
held so dear. At least in detention policy, Bush left a weaker
presidency than he inherited, one encumbered by unprecedented
restrictions imposed by judges.
I think this is correct. Had the Bush Administration sought
Congressional approval of their policies earlier, Congress have given
the Administration most everything it asked for, and the Supreme Court
would have been less likely to repudiate their policies.
One area where the Administration appears likely to take the
unilateral route is with regard to detention. The Post and others
[2]reported last weekend that the Administration was considering a new
Executive Order justifying indefinite detention. If the Administration
believes such detention is necessary, it should seek legislation from
Congress. Along these lines, Wittes and Colleen Peppard have
[3]proposed model legislation on preventative detention. Their aim:
not "to argue for a preventative detention regime but, rather, to
design one�to pose one set of answers to these questions with
sufficient precision to produce actual legislative language." Whether
or not this specific legislative proposal strikes the proper balance
between liberty and security, the overall undertaking -- seeking
legislative approval of controversial counter-terror measures -- is
the proper course.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/06/28/AR2009062802288.html?hpid=opinionsbox1
2.
http://www.washingtonpost.com/wp-dyn/content/article/2009/06/26/AR2009062603361.html?hpid=topnews
3. http://www.brookings.edu/papers/2009/0626_detention_wittes.aspx
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