George W Bush’s presidency…was a pleasure for Beijing to deal with: it distracted itself with two unwinnable wars, leaving China to expand its influence, quietly contrasting Beijing’s peaceful international profile with the US’s embattled one. By playing the bad boy in international climate politics, the Bush administration eased the pressure on China to do more about its own soaring emissions. And in the most active and important aspect of Bush’s China policy, the strategic economic dialogue, set up in 2006 to strengthen ties, the US depended on China first to soak up US debt and then to help manage the consequences of the crisis.
I agree Andrew Sullivan and Glenn Greenwald on this:
Glenn is absolutely right to remind us that the whole point of our resistance to the war crimes of the last seven years was not to rely on our subjective beliefs about the moral integrity of a lone man in the Oval Office. It is to restore a maximally transparent, lawful and effective policy against Jihadist terrorism under the rule of law and the Constitution. Obama needs to be held to exactly the same standards as Bush. And if he thinks we will give him a pass, he needs to think again.
The point of my previous post is that Obama may agree that we must force him to be accountable as well. It is better for the coequal branches of government to check the president’s power than for these branches to defer to the president’s renunciation of certain powers.
[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:
- He believes the president is subject to the law and is committed to upholding the Rule of Law.
- He believes that correct processes should be followed and that, “Each branch of government is balanced by powers in the other two coequal branches.”
- 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.
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.
It’s interesting that former Republican turned Obamacon, Andrew Bacevich cites the classic work of conservatism by Richard Weaver while concluding his essay damnig the so-called conservatives of the neo variety:
Ideas have consequences. Post-cold war triumphalism produced consequences that are nothing less than disastrous. Historians will remember the past two decades not as a unipolar moment, but as an interval in which America succumbed to excessive self-regard. That moment is now ending with our economy in shambles and our country facing the prospect of permanent war.
Glenn Greenwald, yet again demonstrating his usefulness, holds Obama’s feet to the fire for the apparent decision of his Justice Department to maintain the Bush administration’s radical view on state secrets. Highlighting the ridiculousness of the Obama Justice Department’s legal position here, Greenwald points out that:
The entire claim of “state secrets” in this case is based on two sworn Declarations from CIA Director Michael Hayden – one public and one filed secretly with the court. In them, Hayden argues that courts cannot adjudicate this case because to do so would be to disclose and thus degrade key CIA programs of rendition and interrogation – the very policies which Obama, in his first week in office, ordered shall no longer exist. How, then, could continuation of this case possibly jeopardize national security when the rendition and interrogation practices which gave rise to these lawsuits are the very ones that the U.S. Government, under the new administration, claims to have banned?
Greenwald follows up today with a piece that gets to the core of the issue:
Nobody — not the ACLU or anyone else — argues that the State Secrets privilege is inherently invalid. Nobody contests that there is such a thing as a legitimate state secret. Nobody believes that Obama should declassify every last secret and never classify anything else ever again. Nor does anyone even assert that this particular lawsuit clearly involves no specific documents or portions of documents that might be legitimately subject to the privilege. Those are all transparent, moronic strawmen advanced by people who have no idea what they’re talking about.
What was abusive and dangerous about the Bush administration’s version of the States Secret privilege — just as the Obama/Biden campaign pointed out – was that it was used not (as originally intended) to argue that specific pieces of evidence or documents were secret and therefore shouldn’t be allowed in a court case, but instead, to compel dismissal of entire lawsuits in advance based on the claim that any judicial adjudication of even the most illegal secret government programs would harm national security. Thatis the theory that caused the bulk of the controversy when used by the Bush DOJ — because it shields entire government programs from any judicial scrutiny – and it is that exact version of the privilege that the Obama DOJ yesterday expressly advocated (and, by implication, sought to preserve for all Presidents, including Obama).
Greenwald ends his piece by misconstruing a remark made by Marc Ambinder – who in fairness to Greenwald probably misunderstands the essence of this issue – and turning it into a strawman he can take down. This is Greenwald at his worst – but the start of the article is Greenwald at his best, explaining succinctly and cleary why outrage is called for. I’m sure Greenwald mocks Ambinder only because his comments are illustrative of the wrong-headed Washington establishment thinking.
More important though is the question of, ‘What’s next?’ Greenwald clearly explains how this use of the state secrets privilege is abusive – and how Obama and Biden clearly opposed it when used by Bush. So, how do we begin to pressure Obama to change this position?
David J. Morris, a former Marine, attended the Survival, Evasion, Resistance, Escape (SERE) program whose purpose was to train US soldiers to withstand torture but whose techniques migrated to interrogation of prisoners after the Bush administration pushed for “enhanced interrogation.” Morris writes of his experience being subjected to these techniques:
I was incarcerated at SERE for only a few days, but my mind quickly disintegrated. I became convinced that I was being held in an actual prisoner of war camp. Training had stopped, from my point of view. We had crossed over into some murky shadow land where the regulations no longer applied.
[W]hy is it the GOP is so easily galvanized by sexual panic? Weird, if you ask me. This is the budget we’re talking about here. Even there, they reach, like the exhausted tacticians they are, for the culture war.
[digg-reddit-me]One of the big issues many kossacks had in responding to my post was that they objected to the term, “war” being used in describing efforts to combat terrorism.
Peter Feaver over at Foreign Policy nicely parries at least one of the points made – what he labels the “specious claims like the idea that calling it a war narrow options down to only military tools.” Feaver’s response:
On the contrary, of course, calling it a war actually has the opposite effect of expanding options: It admits the use of military and other war-like tools, but it also encompasses the rest of the non military tools in the toolbox, as I’ve argued here. Those who want to label it as something other than a war are the ones who want to limit the tools available.
What Feaver seems to support is what he calls a popular straddle that unites the semantic warriors:
Obama intends to say that we are really at war, but we will voluntarily not use all of the tools of war because we do not need to.
Although at the present, this is fine – it seems to offer the worst of all worlds should another attack occur. Politically, Obama will have boxed himself in by admitting that we are at war and at the same time, by saying that we do not need to use every tool at our disposal to win that war, a kind of anti-Powell doctrine.
The approach that I think bears the most promise – both as a solid grounding for understanding the struggle against terrorism and for creating a politically defensible position – is what I’m calling the Philip Bobitt approach. More on that in a moment.
I think it’s obvious to see why the Feaver approach ((It’s unfair to label it the Feaver approach as he actually attributes it to Obama, but for the moment, this is the least confusing way to go about explaining.)) would probably cause political damage to any candidate that embraced it if there is another attack. (Think of the mothers of the victims of an attack saying, ‘You said we didn’t need to do this, but my son died!’) At the same time, the policy of holding back would be discredited by a spectacular attack – or perhaps even a minor one. There would be a backlash. The delicate balance that would need to be struck between the war we are fighting and what we are holding back “because it is unnecessary” would necessarily come undone at the first loss of life.
Alternately, some claim we are not at war and that the struggle against terrorism is a law enforcement matter, and that politicians should embrace this view publicly. If there are no future attacks, then this position will work out fine. If there are only a small number of minor attacks, this also might work out fine. If there are a series of minor attacks, it’s possible that this position might get us through – both politically and substantially. But this doesn’t seem a smart bet to me. I’m not sure that anyone would deny that our society is vulnerable to catastrophic attacks – and that with technological improvements, increased travel, the increasing density of our urban areas, the spread of information, the worldwide and instantaneous nature of the media, and the growing importance and fluidity of markets – non-state actors are more empowered today, to do good or harm, that at any time in the history of the world. I’m not sure anyone would deny that there are significant numbers of individuals who seriously wish harm to America. Terrorism then – terrorism more serious than before – is inevitable.
Ron Suskind, whose critical books on the Bush administration earned him the ire of the former president, reported that an Al Qaeda agent accomplished a technological breakthrough and was prepared to launch a chemical attack on the New York subway system several years ago. The operation was within 45 days of being launched when it was called off by Ayman Zawahiri. Although we have no definite intelligence as to why this attack was called off, the most plausible explanation based on other statements Bin Laden and Zawihiri have made is that Bin Laden feared this attack would not surpass September 11. Societies throughout history have shown that they can acclimate themselves to a constant low-level of violence – even terrorist-created violence. Which is perhaps why Al Qaeda seeks spectacular attacks on their primary target, or none at all – because a spectacular attack is more likely to generate an overreaction.
If history is to be a guide, we can bet that if a terrorist group does enough damage, people will care little for triviliaties such as freedom – such is the effect of the fear of death. (At the same time, history must also inform us that a society’s fear of death can be manipulated by the state as well as by the terrorists.) It seems to me that the law enforcement approach is not especially suited to combatting the terrorism we now face because:
- the consequences of letting an ordinary criminal go are far less serious than letting a terrorist go;
- punitive measures that are supposed to deter crime don’t work regarding strategic terrorism (The death penalty, for example, doesn’t deter someone who wants to be a martyr like Khalid Sheikh Muhammad.);
- law enforcement focuses on prosecution and punishment rather than prevention, when counterterrorism measures must do the reverse;
- military engagement may at times be called for – as it was in Afghanistan after September 11;
The efforts to combat terrorism then don’t seem to fit into our traditional ideas of law enforcement. Neither of course, do they fit into our modern definition of war – as a military engagement between states (or within states) that ends with a treaty. The efforts to combat terrorism don’t fit into any of these preexisting categories neatly. We could invent a new term – but if we did, that would suggest that if this threat escalates, then war would be the next step. In other words, I don’t see any approach to terrorism short of “war” to be sustainable – because I believe it is likely that regardless of what steps we will not be able to prevent another attack.
So I suggest we adopt the term “war” and couple it with the main aim of this war – a preclusive victory against strategic terrorism. This victory would be the protection of the ability of citizens to consent freely to their government. ((I believe we must aim as a society for more than mere consent to government action – to actively shape it, etcetera – but that’s not the goal of this war.)) Any time the government violated the rule of law, it would be violating the war aim – it would be, as I described it in a post long ago, a “preemptive surrender of American values.”
This seems to me to be a sturdier construction for the protection of American values than either the law enforcement approach, the Feaver approach, or (and especially) the Bush approach.
…[T]his nominalism [is not] confined to the U.S. administration’s critics. In his conduct of the war in Iraq, George W. Bush has cast considerable doubt on whether he actually does consider operations there as part of the Wars on Terror, for he has chosen to fight in Iraq as if it were a theater of conventional operations. It is as if he, too, has been using a word for practical political reasons – to rally the public, to gain support for appropriations – without regard for the reality the word is supposed to reflect. Had the president really believed that the use of the term “war” was compelled by reality and not just by the instrumental purposes to which he put the word, he would surely have raised taxes (not significantly lowered them), brought Democrats into the cabinet, enlarged the army, and ardently sought American alliances abroad. These steps have invariably characterized the measures taken by U.S. presidents who have led the U.S. in war since 1917.
Philip Bobbitt on page 174 of Terror and Consent.
I just wanted to point out that it’s not merely liberals who don’t properly understand the threat of terrorism. I’ve been focusing on that aspect because that’s where I started, and since I’ve been dealing with the blowback.