Categories
Barack Obama Financial Crisis Law Politics The Opinionsphere

Obama and the Rule of Law


[digg-reddit-me]Right-wingers and some conservatives are trying out a new approach in their attacks on Obama – as you can see from the growing meme on the right that Obama has no respect for the Rule of Law. I’ve come across this meme in a George Will column, a Wall Street Journal editorial, and in a blog post by Jim Manzi for the National Review / The American Scene all last week. All three authors have focused on one particular event – Obama’s role in the Chrysler sale/bankruptcy/bailout. I for one am glad to see the National Review and Wall Street Journal finally coming around to accepting the importance of the Rule of Law after eight years of promoting George W. Bush’s blatant disregard for the law – but I digress.

The past eight years have demonstrated to many Democrats and liberals the vital importance of the respect for the Rule of Law to a well-functioning state – as President Bush concentrated more and more power in the White House and asserted authorities both beyond and over the law – which is why an accusation that President Obama is not respecting the Rule of Law must be taken seriously.

It is hard though to take the example all three authors use seriously – Obama’s intervention in the Chrysler mess. I can understand why people might object to what Obama did – if you consider unions to be a malevolent force, you certainly don’t want them helped out – and it is unseemly that they donated so much to Obama only to be rewarded now (of course, the creditors also gave Obama a great deal of support.) But neither of these objections is based on Obama disrespecting the Rule of Law.

Certainly, even these authors are not accusing Obama of disrespecting the Rule of Law in the same manner as George W. Bush – who did not believe he was bound by law when acting to protect Americans. The unitary executive theory he accepted and Cheney, Addington, and others used, is a direct assault on the idea that the president is bound by the law. Obama does not take this position.

These authors make a big point of the fact that Obama is abrogating contracts – but this objection is a bit silly. Obama is not a party to these contracts – and thus has no obligation to honor them personally. The Contracts clause of the Constitution – the Law which it is being alleged Obama has broken – was meant to constrain the individual states rather than the President or even the Congress. Congress was in fact given the power to abrogate contracts through bankruptcy proceedings in the Constitution. Obama – in intervening in the case of Chrysler – helped to negotiate an out-of-court settlement of the matter. Out-of-court settlements happen all the time – and are welcomed by overburdened judges who see it as better to allow all sides to come to an agreement rather than having to order them to agree.

To call this a violation of the Rule of Law is disingenuous at best.

What these authors are right to be concerned about is the concentration of power that undermines the system of the Rule of Law – as the government’s role in backstopping the finance and auto industries leaves it with enormous leverage. But their fears should be allayed by the fact that most of these interventions are temporary. (Of course, George Will is on the record disbelieving this based on the old adage – as are all of Will’s beliefs – that once government has taken a power, it will not give it up.)

Liberals have continued to voice a different set of concerns about Obama’s respect for the Rule of Law – pointing to the many Bush administration positions Obama has accepted. But they key difference between Bush and Obama is that even as Obama may be putting forward positions on these issues which are controversial, Obama has given the sense he will concede if his legal means of asserting these claims are defeated. Bush in at least one instance refused to end a clearly illegal program despite the fact that his own Justice Department had declared it illegal. 

I do find a few areas of concern. The power of the executive branch has grown enormously in the financial crisis – between the Stimulus Bill and the bank bailout. While in the short-term this may be necessary, if steps are not taken, this would undermine the balance of power between the federal government and the states. While this in itself is not a violation of the Rule of Law – it does weaken the system which together helps maintain the Rule of Law. And it is this that conservatives and right-wingers seem to be ojecting to – but their rhetoric about the Rule of Law being disregarded is hyperventilationist – and for those who did not likewise say the same of our previous president, hypocritical.

But by far the most disturbing manner in which Obama is undermining the Rule of Law is in how his administration is keeping Bush’s policies on the matter of Bagram. The Supreme Court’s ruling on the rights of detainees to certain basic rights at Guantanamo was in a large part based on the idea that our government should not be able to deprive an individual of rights merely by moving them to a particular location. But this is exactly what the Obama administration is claiming with regards to the detainees brought to Bagram from around the world. Our nation’s freedoms are grounded in our traditions. This includes a respect for contracts, a balance of various powers, and an energetic chief executive – but at it’s base, our traditions are grounded in a single, fundamental restriction on the state. To quote Winston Churchill:

The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious, and the foundation of all totalitarian government whether Nazi or Communist.

Categories
Barack Obama Liberalism Political Philosophy Politics

Ten Principles of Liberalism

[digg-reddit-me]Barack Obama’s incipient presidency has set off a furious debate over what his administration’s principles are. George Will described Obama’s administration on this past Sunday morning as the Third Wave of government intervention and expansion (with FDR’s New Deal and LBJ’s Great Society being the first two. Will, for some reason, declined to mention TR’s introduction of the regulatory state, as does almost everyone.) Right-wingers from Rush Limbaugh to Sarah Palin have described Barack Obama as a “socialist.” Meaghan McCain and Niall Ferguson deride what they characterize as a leftist agenda. On the other hand, supporters of Barack Obama’s candidacy have criticized him for betraying his progressive vision and defending the status quo. Others have defended him against charges of socialism and suggested he stands for good old-fashioned liberalism.

At this moment in history, as capitalism seems to have failed, as American international power is at an ebb, as globalization seems destined to continue, as the threat of terrorism continues to grow – evident both in our vulnerability and in the number of our enemies, as the nation-state which derives its legitimacy from providing for the needs of its citizens seems to be evolving into a market-state which is legitimated by the opportunities it offers its citizens – at this moment in history, Barack Obama has become president. The liberalism I am attempting to describe in this post is merely a sketch – but it is a sketch of what I see to be the right approach in this world – which as I have commented before, seems to have much in common with what I identified in the summer of 2007 as the Obama approach. As liberalism tends to be pragmatic rather than theoretical, many of these principles have regained prominence most specifically in response to recent problems in the world and with the Bush administration. I am focusing here on those aspects of principles which distinguish liberalism from other political philosophies – specifically, progressivism, various leftist movements, conservatives, libertarians, and extreme right-wingers. 

Here are the 10 principles of liberalism – whose three goals are to allow individuals liberty, opportunity, and community.

  1. Doubt v. Action. These two competing impulses are at the heart of all the rest of these principles. A Hayekian doubt about the efficacy of centralized planning coupled with a Rooseveltian (TR or FDR) need to act – to conduct “bold, persistent experimentation” while acknowledging that our “grasp on the truth is always provisional.” This balance was best articulated by Reinhold Niebuhr who wrote that while “We must exercise our power,” we must be remain aware that power corrupts even ourselves. Hayek similarly explained that “we needed to think of the world more as gardeners tending a garden and less as architects trying to build some system.” Liberalism was never utopian, but today’s liberalism has been tempered by the failures of big-state liberalism – as well as the failures of anti-regulatory “free” market fetishism. Only conservatism, properly defined historically, attempts a similar balance.
  2. The Market & the Government. Contemporary liberals reject the doctrinaire distinction between the “market” and the government that animated so much of the conflict in the 20th century. The free market should not be treated as some theoretical utopian ideal or as a perpetually lost state of innocence. And the government is not some evil force which must be reduced until it is of a size that it “could be drowned in a bathtub.” Rather the government and the free market exist together – and in a capitalist republic such as ours, each is dependent on the other. The free market does not exist in a state of nature but must be created by and maintained by the society and the state which provide the values and the rules and other conditions without which a market cannot be free. In other words, a free market is a product of a just government.
  3. Empower individuals. One of the key roles of government then – in creating a free market – is to empower individuals to participate in market freely, as individuals. A market is less than free if employees can be held hostage by large corporations and health care burdens1. To empower individuals then, the government must ensure that there is sufficient technological and transportational infrastructure; the government must ensure that basic needs can be met by individuals – for example access to health care; and the government must ensure that every individual has the opportunity to get an education. At the same time, individuals must be empowered to shape and control government more directly. Liberalism in a market-state must exhibit a preference for the individual over the corporation and government and must empower individuals against bullying and coercive measures of these large institutions.
  4. Predictability & stability. Government in a market-state must be predictable and the economy and society must be stable. Neither of these is an absolute good – both are contingent goods – as without predictability and stability, economic growth is impeded and liberty is impossible. Related concepts are sustainability and resilience.
  5. Reform. (Not revolution.) Liberalism has embraced a policy of reform – presuming that the status quo is not perfect yet acknowledging that rapid change could lead to worse. Reform is the balance liberalism strikes between stability and progress. This distinguishes them from conservatives who embrace the status quo over any change (standing athwart history yelling stop!) and leftists and right-wingers who embrace revolutions of various types to overthrow the current order as fundamentally wrong. The focus on reform is informed by the balance between doubt and action. Perhaps the best understanding of what reform means for a liberal can be found in Nassim Nicholas Taleb’s advocation of the word “tinkering.”
  6. Preventing destabilizing concentrations of power and encouraging fair processes of distribution. Liberalism acknowledges that power tends to become concentrated – sometimes in particular branches of the government (for example, in the presidency in the unitary executive theory); sometimes in corporations (as they become too big to fail); sometimes in a particular class of individuals (as they control more and more wealth.) Liberalism sees that such concentrations of power are incompatible with democracy and liberty – and that while such concentrations of power will empower certain individuals – they do so at the expense of most people. While socialists and communists and other utopians believe equality must be created – liberals merely seek to prevent extreme concentrations of power in the hands of any minority. At the same time, as Confucius said, “In a country well governed poverty is something to be ashamed of. In a country badly governed wealth is something to be ashamed of.” Which is why liberals must ensure that power is distributed through a fair process. Political power has been distributed by a constitutional order that needs to be tweaked now and then – and sometimes shaken up, as with the abolition of slavery. Economic power similarly is distributed in a market that sometimes is entirely unjust – as pollution imposes costs on some that are paid by others; and of course with the issue of slavery again. Government must step in to ensure that such unfair practices are not allowed. The goal is not to prevent someone like Bill Gates from having so much wealth, as his wealth is small enough to pose little threat to stability no matter what he does (almost) – it is to prevent 75% of the power from being controlled by 5% of the population – which does pose such a threat.
  7. The Rule of Law. Liberals embrace the fact that our nation was founded “as a nation of laws, not men” and that laws, while sometimes inconvenient are the foundation of our social bargain. Our leaders swear to uphold the law and to remain subject to it. That means if say, a President authorizing wiretapping in direct contravention of federal law, then he must be prosecuted.
  8. Aid to the disadvantaged. Liberals believe in the moral principle that a society and a government cannot be judged without taking into account how it deals with the disadvantaged – especially those who are disadvantaged as a result of the inevitable flaws in the system we choose to embrace. Liberals subscribe to the idea that “A nation’s greatness is measured by how it treats its weakest members.”
  9. First among equals. Liberals acknowledge that America has often been and remains a force for good in the world – but they believe that it detracts from this when it considers itself unrestrained by any law or treaty and unilaterally imposes its will. This creates instability and unpredictability – as well as encouraging other nations to form collectives against us and to obtain weapons of mass destruction to prevent an invasion and provoke a standoff. Instead, liberals see that America has been most effective and done the most good when it acted as “first among equals” in the community of nations. As technologicaland macro-economic forces have been rapidly decentralizing power, America remains the single most potent force in a non-polar world – but it detracts from it’s power when it acts alone and delegitimizes the trust the world has given it to act responsibly.
  10. Diversity and federalism. Liberals – embracing their fallibility as human beings, and acknowledging that their grasp of the truth is always provisional – embrace diversity and federalism. Diverse viewpoints, diverse cultural, cultural, economic, etc. backgrounds all should be welcome and protected so long as they do not attempt to impose their specific view on those not willing. This is why liberals must embrace federalism – which has traditionally been a conservative principle. Liberals seem to be embracing the idea of federalism – at least with regards to the issues of gay marriage and medical marijuana.
  1. As Daniel Gross explained in Slate, “An affordable national health care policy, which could allow people to quit their jobs and launch businesses without worrying about the crippling costs of premiums or medical costs, might be a better spur to risk-taking than targeted small-business loans.” []
Categories
National Security The War on Terrorism War on Drugs

The Rule of Law

I’m written quite a bit about the Rule of Law on this blog. I’ve come to see it as the cornerstone of my political views – this belief that, as Thomas Paine famously asserted in his Common Sense:

For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.

This distinction – between the holder of power and the law – is one of the fundamental insights of our Founding Fathers – and one that the Bush administration treated with contempt – a contempt I am loathe to attribute to conservatives in general, but one which far too many for my comfort seem to share.

Protecting the Rule of Law is what I (along with Philip Bobbitt) propose that the Wars Against Terrorism must focus primarily on.

One of the primary reasons I believe the War on Drugs must end is to protect the Rule of Law.

My criticisms of the Bush administration’s War on Terror arise largely from their abuse of the Rule of Law – from asserting unchecked presidential authority to attempting to evade any laws by creating a prison in Guantanamo to flagrantly committing felonies even after being advised as such by the attorney general and FBI director.

I believe Bush’s War on Terror evolved all too quickly into a war on the Rule of Law itself, as one of the few remaining checks on presidential power. 

It is why I believe that men and women who knowingly attempted to undermine the Rule of Law, should be prosecuted to the fullest extent allowed by the law. 

Perhaps the reason I have been so attracted to this concept as a fundamental principle is that it is not an absolute one – but instead requires a balancing test. Rather than focusing on liberty or equality – both of which are important principles that must be balanced against other principles to avoid becoming the justification for great evils, the concept of the Rule of Law itself is a balancing test between anarchy and authoritarianism, between justice and legality, between what is needed and what can be done.

Categories
Barack Obama Law Politics The Bush Legacy The Opinionsphere

The Games Obama Plays

[digg-reddit-me]Thesis: Obama is a systematic thinker – and given some of his clearly expressed views on the presidency – he may be setting up a situation where the other branches of government will be able to definitively limit the powers of the presidency. This is preferable to the president voluntarily renouncing powers – as it places the responsibility for checking the executive branch on the system rather than on the chief executive himself.

The Rest: In his inaugural address, Barack Obama seemed to clearly repudiate the Bush administration’s lawless approach to the War on Terror with this oft-quoted line:

As for our common defense, we reject as false the choice between our safety and our ideals.

In this, and in many other instances, Obama made clear that he would restore the Rule of Law – and that he considered himself, as president, to be subject to the law. This may seem to be a fundamental and basic understanding for any chief executive in a liberal democracy, but for the last eight years, the Bush administration advanced arguments and pursued policies as if it were not subject to the law.

Every time the Supreme Court ruled against the Bush administration, Congress passed a law to restrain the executive branch in some way,some quasi-independent parts of the executive branch opposed him –  it was always uncertain what Bush would do – whether he would simply ignore the attempts to check his power; whether he would declare the checks unconstitutional and then ignore them; whether he would secretly ignore them and prosecute anyone who informed authorities that he was breaking the law; or whether he would attempt to force Congress to pass a legislative justification for his actions. In fact, Bush at one time of another did all three of these. Obama has made clear that he not only respects the Rule of Law but considers checks and balances on the presidency to be part of the democratic process set out by the Constitution. Obama is mindful of the chief executive’s role is in this system – and that, as Gregory Craig, White House Counsel explained:

[Obama] is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency.

Combine this statement with Obama’s decisions regarding rendition, the state secrets privilege, and investigating abuses of the Bush administration – and many civil libertarians and critical observers of the Bush administration from Glenn Greenwald to Andrew Sullivan to Charlie Savage are preparing to be disappointed.

Let’s take a step back for a moment and postulate that Obama holds these three relatively uncontroversial and related positions that he has articulated on numerous occasions:

  1. He believes the president is subject to the law and is committed to upholding the Rule of Law.
  2. He believes that correct processes should be followed and that, “Each branch of government is balanced by powers in the other two coequal branches.”
  3. At the same time, he has little desire to use his political capital and energy prosecuting Bush administration officials.

Obama articulated these three sentiments in a response to a question by Sam Stein of the Huffington Post at his February 9, 2009 press conference:

My view is also that nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen; but that generally speaking, I’m more interested in looking forward than I am in looking backwards.

Dahlia Lithwick, another chronicler and critic of the Bush administration’s legal abuses, interpreted Obama’s statements and actions this way:

…by keeping the worst of the Bush administration’s secrets hidden, the Obama Justice Department can defer awkward questions about prosecuting the wrongdoers. In his press conference Monday night, Obama repeated his mantra that “nobody is above the law and if there are clear instances of wrongdoing, people should be prosecuted just like ordinary citizens. But generally speaking, I’m more interested in looking forward than I am in looking backwards.” The principle once again is that Obama is for prosecuting Bush administration lawbreaking only when proof of such lawbreaking bonks him on the head. All the more reason to keep it out of sight, then.

But to me, this sounds like an invitation to push him to do what is right – as FDR said to numerous audiences who came to ask him to pay attention to their issue (and here I paraphrase):

I agree with you, I want to do it, now make me do it

Supporting this, aside from Obama’s many statements on these matters, are the public opinions of many of those he appointed to key positions in the Justice Department, including the attorney general:

Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution…. We owe the American people a reckoning. [my emhpasis]

Here is where the speculation really starts though – and only time will determine if these guesses are correct. Obama, as president, does not believe it is his role to give up executive power. For one, by doing so, he is antagonizing certain elements of the executive branch that he needs to bring to his side – in the state secrets case, for example, the CIA.

Secondly, by voluntarily renouncing a power, he is in some sense affirming the inherence of this power. Bush believed he had the power to say an entire subject matter was a state secret and thus have an entire lawsuit revoked; if Obama claimed he didn’t have this power, and the Courts then ruled he didn’t, the Court would not be “checking” the president so much as deferring to the new president’s view of his own powers. However, if Obama maintains he has this power – and the Court rules that he does not – it does provide a check. If Congress passes a law restraining the president’s use of this power, it will again provide a check. Each of these scenarios provides a firmer check on presidential power than does Obama’s giving up of these powers. It places the responsibility for checking executive powers not on the President, but within the system, where it should be.

Third, Obama has a number of crises to deal with right now and realizes that there are significant elements who feel strongly about these balance-of-powers issues. What he wants then – is for those groups that are passionate about these issues to prepare the public and to force him to act on them. This way, he can preserve his political capital – and by merely responding to issues forced upon him can avoid charges of looking like he is merely out for retribution.

If this is Obama’s thinking, then we can expect him to not oppose efforts to reign in his powers too strongly – and to accept those limits once they have been legitimated by the Courts or the Congress. If this isn’t Obama’s thinking, we can still attempt to force him to act but the outcome will be less certain.

Categories
Law National Security Politics The Opinionsphere

A Double Standard (cont.)

Glenn Greenwald, as always, over-the-top and on point:

That’s America’s justice system in a nutshell:  the President who deliberately and knowingly violated our 30-year-old law making it a felony offense to eavesdrop on Americans without warrants has the entire political and media class eagerly defend him against prosecution.  Those who enabled him – in both parties – block investigations into what was done.  Ruth Marcus and Cass Sunstein and friends offer one excuse after the next to justify this immunity.  But the powerless and defenseless – though definitively courageous – public servant who blew the whistle on this lawbreaking is harassed, investigated, and pursued by the DOJ’s Criminal Division to the point of bankruptcy and depression, while the lawbreakers and their enablers stand by mute and satisfied.

Categories
National Security Politics The Opinionsphere The War on Terrorism

A Double Standard

[digg-reddit-me]From Michael Isikoff’s profile of Thomas Tamm in Newsweek:

Tamm’s story is in part a cautionary tale about the perils that can face all whistleblowers, especially those involved in national-security programs. Some Americans will view him as a hero who (like Daniel Ellsberg and perhaps Mark Felt, the FBI official since identified as Deep Throat) risked his career and livelihood to expose wrongdoing at the highest levels of government. Others—including some of his former colleagues—will deride Tamm as a renegade who took the law into his own hands and violated solemn obligations to protect the nation’s secrets. “You can’t have runoffs deciding they’re going to be the white knight and running to the press,” says Frances Fragos Townsend, who once headed the unit where Tamm worked and later served as President Bush’s chief counterterrorism adviser. Townsend made clear that she had no knowledge of Tamm’s particular case, but added: “There are legal processes in place [for whistle-blowers’ complaints]. This is one where I’m a hawk. It offends me, and I find it incredibly dangerous.”

As Hilzoy points out, Townsend was one of the people responsible for making sure that the whistle-blower process worked for Tamm:

Saying that whistleblowers ought to work within the system without adding “if the system is in fact functional” is odd in itself. But saying that when you are one of the people who could have helped to make it functional amounts to saying: well, I and my colleagues have failed to do our jobs, but never mind that: we should expect whistle-blowers to work within the system, even if our own failure means that they have no reason to believe that doing so will actually accomplish anything other than the destruction of their careers.

In a CNN appearance attacking Scott McClellan when he released his book, Townsend seemed to make the exact opposite point of Hilzoy – suggesting that career destruction is the price you must pay:

You know, if there’s policy issue that you think violates your personal values or your integrity and ethics, you do have an option. You can voice it and if you lose, you leave.

Which is probably why Townsend was relieved to have been deliberately marginalized on sensitive national security issues by Vice President Cheney and his staff while she served as a counter-terrorism adviser. (Her very appointment was also opposed by Scooter Libby and was apparently somehow tied in to the Valerie Plame leaking.)

The great irony is the clear double standard applied by people like Frances Fragos Townsend to condemn only those who politically opposed them for acting as renegades who take the law into their own hands thereby violating solemn obligations to protect the nation and its values while giving other a free pass. Yes – Thomas Tamm, a lone individual with few powers, unable to affect what he believed to be flagrant law-breaking (and what later events have proved to be at minimum felony crimes), took it upon himself to protect the Rule of Law, thus breaking one law to uphold the many. And yes – George W. Bush, the most powerful man in the world, unwilling to concede that his powers had limits when he feared bad things would happen, broke many laws and ordered many more laws to be broken, to such a degree that he challenged the very concept of limits on the executive itself, corrupting the entire system that was designed to check his powers. Both men broke the law to protect America.

One man corrupted the system designed to check him; the other took on that corrupted system. Yet Townsend – and many like her – argue that the petty criminal who broke the law (for the common good) should be prosecuted while the master criminals who broke many laws (for the common good) should not be. This demonstrably creates two classes under the law – those above it and those subject to it.

John Adams described the definition of a republic as “a government of laws and not of men.” Thomas Paine declared in Common Sense that “in absolute governments the king is law, [while] in free countries the law ought to be king; and there ought to be no other.” It is this fundamental American principle which Frances Fragos Townsend and other Bush administration apologists attack when they insist that only the dissenters and the powerless be punished for breaking the law.

Categories
Criticism Law Politics The Opinionsphere

Yes, the Senate Can Refuse to Seat Roland Burris

[digg-reddit-me]Ever since Governor Blagojevich announced his appointment of Roland Burris to take Obama’s Senate seat, the Conventional Wisdom has been that while Blagojevich’s actions are unseemly they are within the law – and more importantly, that Harry Reid and the rest of the Senate can’t do anything to stop Burris from being seated. The LA Times opined:

Exasperated as they are at being outfoxed by Blagojevich, his colleagues and critics must face the fact that he is still the governor of Illinois and empowered to appoint an interim U.S. senator. It’s not a pretty situation, but it’s the law.

The Wall Street Journal suddenly discovered the Constitution and the Rule of Law after eight years of amnesia1 and declared that this was a matter of “Harry Reid v. the Constitution,” claiming without equivocation that Blagojevich had “every legal right” to appoint Burris, that the “Beltway Democrats can’t inject themselves into what is clearly a matter of Illinois law,” and finally that:

Nowhere in the Constitution is there a “qualification” saying that a Senator must not have been appointed by an embarrassing Illinois Governor…now that Mr. Burris has been appointed, Mr. Reid can’t legally deny him his seat. If this is the way Democrats are going to use their new monopoly on Beltway power even against a member of their own party, we’re in for an ugly couple of years.

David Gregory, temporarily sans smirk, parroted the same Conventional Wisdom on this morning’s Meet the Press.

This Conventional Wisdom holds that the 1969 Supreme Court case of Powell v. McCormack limits the Senate’s power to take action pursuant to Article I, Section 5 of the Constitition. The Article states:

Each House shall be the judge of the elections, returns and qualifications of its own members…

Powell limited this power by holding that:

In judging the qualifications of its members under Art. I, § 5, Congress is limited to the standing qualifications expressly prescribed by the Constitution.

What the LA Times and Wall Street Journal and David Gregory fail to take into account – whether deliberately or not is unclear – is that the Powell case revolved around the question of whether the Congress could judge the qualifications of a member and exclude him or her for bad conduct while Reid is making his case under the Senate’s power to judge the process by which it’s members are selected or elected. On Meet the Press, Reid said that he didn’t know of anything Burris had done wrong or any qualification he lacked. Rather Reid pointed to the tainted process which lead to Burris’s appointment as the problem. This is an entirely separate issue from the one decided in Powell – in which a duly elected Congressman was denied his seat for misconduct during the previous session of Congress:

Our examination of the relevant historical materials leads us to the conclusion that …the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.

The key phrase being “duly elected.” The Senate still has the power to judge the returns and the elections – and this power was not limited by Powell. The corruption of the process leading to Burris’s appointment is also what Reid & co. keep harping on – rather than Burris’s qualifications. An election of a Senator marred by corruption, like a corrupt appointment, is to be judged by the Senate. Akhil Reed Amar and Josh Chafetz explain the history of this power and it’s previous invocations.

If Reid chooses to push this claim of Constitutional authority and refuses to seat Burris, he may well prevail, proving once again John Kenneth Galbraith’s prescience:

The enemy of the conventional wisdom is not ideas but the march of events.

  1. That’s unfair. The Journal always remembers to invoke the Constitution when slamming Democrats. It only ignores it when Republicans are acting unconstitutionally. []
Categories
Law Politics The Opinionsphere

The Source of Authority

I have my opinion of this statement, but it is somewhat more subtle than most who read this blog might guess – but here’s Dick Cheney being interviewed by Chris Wallace on Fox News Sunday:

The president of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States.

He could launch a kind of devastating attack the world’s never seen. He doesn’t have to check with anybody. He doesn’t have to call the Congress. He doesn’t have to check with the courts. He has that authority because of the nature of the world we live in. [my emphasis]

It’s interesting that though Cheney continually refers to the powers of the Constitution throughout his remarks, grounding his justifications of various extraordinary actions in his unique interpretations of the Constitution, his final source of authority is “the nature of the world we live in.” I don’t think this is the worst possible justification – but it is a hypocritical one for someone who opposed a judiciary that saw the Constitution as changing as the nature of the world we live in changed.

Categories
National Security Politics The Opinionsphere The War on Terrorism

The Judgment of History

Patrick Radden Keefe mentioned, in an offhand manner, one of the great questions about the transition:

Even the legal opinions governing the program are still squirreled away in a safe in Vice President Dick Cheney’s office. In recent months, the Senate Judiciary Committee and a Washington district judge have ordered them turned over, and the next attorney general should do so immediately.

He was referring here to the wiretapping program specifically – but it applies to many of the legal rationales in the War on Terror. Dick Cheney and his lieutenants David Addington and Scooter Libby perfected the art of bureaucratic warfare during the first years of the Bush administration. According to Jack Goldsmith as quoted by Barton Gellman:

They were geniuses at this. They could divide up all these problems in the bureaucracy, ask different people to decide things in their lanes, control the facts they gave them, and then put the answers together to get the result they want.

In addition – as Keefe mentioned – and as Gellman reported in his book The Angler – Addington kept certain legal documents exclusively in the safe in his office. Not just copies – but the originals, with no copying permitted, and with access to the documents severely limited. (For example, even the attorneys in the National Security Agency responsible for making sure the NSA was following legal guidelines were not permitted to see the legal rationale for their wiretapping program.) As members of the incoming administration attempt to decide what is the best means to deal with the abuses of power during the Bush administration – Nuremberg-style trials? a truth commission offering clemency? the normal legal system? – you have to wonder what steps Cheney and Addington will take. There has been much discussion of whether or not George W. Bush will offer a preemptive pardon to anyone involved in the War on Terror – but less discussed is what Cheney and Addington might be able to do to entirely obfuscate attempts to find out what happened.

Based on my understanding of Cheney’s personality as described by Barton Gellman – and on his recent interview with ABC News – I think Cheney might want to just get it all out there. He virtually admitted – though not necessarily to the point of taking legal responsibility – that he authorized war crimes:

He was also asked whether he authorized the tactics used against Khalid Sheikh Mohammed.

“I was aware of the program, certainly, and involved in helping get the process cleared, as the agency in effect came in and wanted to know what they could and couldn’t do,” Cheney said. “And they talked to me, as well as others, to explain what they wanted to do. And I supported it.

It seems that Cheney – at least on some issues – is now, and finally, willing to come forward and admit his role. He isn’t willing to admit fault – but seems proud of what he did, and willing to accept the judgment of history.

Still given the extreme secrecy surrounding even the legal rationale of many aspects of the War on Terror, we may never know if documents are destroyed.

Categories
Barack Obama Law National Security The War on Terrorism

Law as a Guide Rather than an Obstacle in National Security

Philip Bobbitt in the New York Times:

Preventing any attacks on the United States since 9/11 is something for which the Bush administration must be given credit, but credit must also go to the American public, which decisively rejected offshore penal colonies, spurious rationalizations for warfare, secret torture chambers and contempt for the constitutional and international laws that would forbid such practices. Indeed, by selecting a former law professor as its new president, the country has thoroughly dismissed the notion that law is an obstacle rather than a guide to achieving security.