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Posts Tagged ‘congress

Guantanamo and the Executive Branch

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Propublica:

When Kennedy, who serves on the U.S. District Court for the District of Columbia, ruled in February that Uthman was being improperly detained, his 27-page opinion was turned over to a court security officer for classification review.

The judges themselves have very little insight into the process and no sway over what is redacted. Government security officials review filings in the habeas litigation and other cases involving classified evidence and remove sensitive information.

In the Uthman case, that clearance process took three weeks. Kennedy’s decision was stamped “Redacted,” by the court’s security officer and returned to his chambers on March 16. The deletions were minimal. For the first 16 pages, the only word blacked out was “secret,” stamped at the top and bottom of each page.

Kennedy’s clerk added the document to the electronic court file late in the day. Twenty-five hours later, the security office sent out urgent notices to attorneys and the judge that the opinion had not been ready for release and needed additional deletions. The decision was promptly removed from the public docket.

In a closed hearing in his courtroom four days later, Kennedy lashed out at the government for releasing classified information. He and Justice Department attorneys then argued over what to do, according to three sources familiar with the discussion.

Kennedy insisted that the reasoning behind his first habeas ruling be made public. But the Justice Department resisted releasing it in redacted form, arguing that blacked out portions would call attention to the exact material the government wanted to conceal.

This is an excellent report by Pro Publica (not a surprise, they’re the best around at that). But beyond what Pro Publica reports, we as a society can often be in a rush to make everything a political decision, but sometimes it’s just as simple as a bureaucratic error. While the detention involved presidential decisions, the redaction decisions are of a much lower pay grade. One of them got screwed up, with no easy way to make it right. Regardless of whether detention at Guantanamo or elsewhere was done correctly, poorly, or somewhere in the middle, this situation could still exist.

It’s also hard to jump to conclusions about the impact on the judge when the judge will not say what it was:

Kennedy’s original opinion noted that Uthman was seized in Parachinar; that he reached the town after an eight-day trek from the Afghan town of Khost, nowhere near Tora Bora; and that his journey to Pakistan began around Dec. 8, 2001. Those facts make it difficult to portray Uthman as a fighter in a battle that took place between Dec. 12 and Dec. 17 at Tora Bora. Two footnotes in the original opinion note that the government does not contest that Uthman was taken into custody in Parachinar.

Both were removed in the second opinion and Kennedy substituted wording to write instead that Uthman admitted he was seized “in late 2001 in the general vicinity of Tora Bora, Afghanistan.”

The intent of this editing may have been to conceal the role of the Pakistanis in capturing al-Qaida fighters although those details were long ago declassified. But the effect was to link Uthman more closely to the retreat of bin Laden and his inner circle through Tora Bora.

It is unclear precisely what restrictions or classification requests guided Kennedy’s alterations. Neither the judge nor the Justice Department would say.

Gillers said such editing has an effect on public opinion, even when it doesn’t change the outcome of the case.

There are two competing interests in government redacting: protecting national security and protecting the prosecution. Not surprisingly, both of these institutional interests are alleged:

Officials at other agencies said they had a fairly free hand in removing information supplied for the government’s case. “Whenever a court security officer identifies a document slated for posting on the court’s public docket as potentially containing classified information, the officer refers that document to appropriate agencies for classification review,” Maj. Tanya Bradsher, a spokeswoman for the Pentagon, said.

One government official who spoke on the condition of anonymity acknowledged that the classification process has been plagued with inconsistencies and that no one is coordinating the effort. In most declassified habeas filings, the names of all detainee-witnesses are removed; in others, a name or two slips past the redaction process.

Some government-ordered deletions clearly appear designed to conceal names of confidential informants, associations with foreign intelligence services and the identities of certain federal agents. But the Uthman case shows that many of the deletions go further.

“This censorship has nothing to do with protecting ‘national security’ and everything to do with covering up government mistakes and malfeasance,” said Jonathan Hafetz, a professor at Seton Hall University School of Law who has represented a number of detainees in habeas litigation. The practice, he said, allows the government to “mislead the American public on issues of profound importance to the country by skewing the perception of who really is at Guantánamo.”

The question is not if both of these interests exist; even if one or both did not, there would at least be a perception of both. The question is how to address them. And the only way to do that is from outside the executive: Congress, the Supreme Court, or ideally both somehow would act in a way to ensure fair procedural safeguards.

The problem is that both institutions have essentially abdicated any responsibilities related to war whatsoever. This has long been the case with the Supreme Court. The laissez-faire attitude peaked in the Korematsu decision that refused to condemn the internment of Japanese-Americans during World War Two. The series of detainment decisions culminating in Boumediene were meaningful but the impacts, as we have seen, have been basically to give far outside limits. And the Congressional action, from the AUMF on, has been absolutely shameful.

My main problem is that for some reason people expect the executive to change this unilaterally. That will never happen. There are four reasons why this won’t happen:

1) No executive is going to be able to completely rid bureaucrats of a desire to protect prosecutors.

2) No president will unilaterally get prosecutors to be more forthcoming on issues of national security, especially when pushing for trust of the national security apparatus is the first thing any new President must do (particularly those with a history of perceived antipathy).

3) Add to this the overwhelming pressure to protect America. No President wants to release the guy who ends up creating the next 9/11 or Cole bombing. Voters would punish that proportionally far more than they would reward a President for releasing someone who the president thinks may just be a mild risk.

4) Presidential leadership on Guantanamo is not the most important variable in change. I thought Jamelle Bouie’s post on this was on the mark:

Yes, Guantanamo closure was a core issue for President Obama, and yes, it was a core issue for his liberal supporters, but it wasn’t a core issue for the Democratic Party, and it needed to be for any chance at success. Given unanimous and vocal Republican opposition to the administration agenda writ large, Guantanamo closure was virtually certain to become a bitter partisan fight. For success, Obama needed a certain level of pro-closure consensus among congressional Democrats. Absent that consensus (and combined with public pressure to the contrary), it was no real surprise to see the White House avoid confrontation: Given limited resources, limited power, and the choice between a hard fight with a small chance of success, and a hard fight with a moderate one, the administration felt best served by investing its resources in the hard fight with moderate chance of success, i.e., health-care reform.

In other words, like Bill Clinton and gays in the military, Guantanamo closure was a high-profile fight that lacked strong support within and outside the party. Obama could have invested further resources in closing the base, but he would have lost ground with health-care reform, stimulus, and other competing priorities. This isn’t to minimize Obama’s failures or the extent to which he has simply embraced large elements of Bush national-security policy, but you can think of an issue like Guantanamo as the price of presidential ambition. When there are many things on the executive plate, some of them have to go by the wayside. This, unfortunately, was one of them.

You can add to this that every electable politician on Guantanamo had the same position as Obama or was much further right (see Romney offering to double Guantanamo). This is why it frustrates me that so many on the left expend all pressure on the matter at Obama, and not on Congress, who is actually 1) pliable and 2) can be changed without massive collateral damage elsewhere.

Obama signed an executive order to close Guantanamo. What happened? The Senate foreclosed any such action by a 90-6 vote. That’s right. Ninety to six.

Until and unless Congress is pushed to engage more on detainee action, the executive will be on an island alone; the Supreme Court will determine the boundaries of that island but little more.

**Edited this post to make clear that the Pro Publica report was -not- politicized.

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Written by John Whitehouse

April 25, 2011 at 9:22 pm

Why Our Pundits Are Broken

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Andrew Sullivan on the Ryan Budget:

There are two possible responses to the news that the House has put its votes on the line and endorsed the Ryan plan for the budget. It behooves me to note that I doubted they would ever get this specific, given their refusal to raise any of these specifics in the election campaign. You can gloat that the GOP has committed political suicide by essentially ending Medicare and Medicaid as we know them, but that is not a substantive response. They deserve political props for nailing this proposal to the door of the White House.

But the substantive criticism is still salient. It is that simply shifting Medicare to private insurance plans with subsidies that will mean progressively less and less healthcare for seniors does not really bring down healthcare costs – just shifts their responsibility away from the federal government. The likelihood that the insurance companies will actually want this new more vulnerable population without at some point, begging the government to provide more resources is … well, slim. But since the GOP proposal is simply indifferent to whether people have healthcare or not (they effectively withdraw coverage for all those covered by the ACA), this is a feature, not a bug.

Only a conservative plan would be lauded for it’s boldness politically. No one was saying how much political respect the anti-war Democrats deserved a decade ago; indeed, the likes of Sullivan called them fifth columnists.

But the same is true even more recently: no pundit praised the public option the House passed (or the even more progressive robust public option) as brave politically. No, they called them just plain stupid and political non-starters. And that’s what the House passed! Exactly what we have here!

But now that someone proposes a plan to make – as Sullivan himself describes it – “progressively less and less healthcare for seniors,” pundits such as Sullivan himself are falling over themselves to praise it for being bold and brave even when they disagree. None of these pundits gave the same deference to Nancy Pelosi. None. The closest was Sullivan saying the public option was wildly popular and then meekly saying the death of it made the bill move more right and be suddenly palatable. Not at all comparable.

There is no boldness, no bravery in failed policy, left or right. Dennis Kucinich proposed a Department of Peace: that’s not brave.

Ask yourself this question: why is not political criticism the same thing as substantive criticism? Ought they be the same?

Written by John Whitehouse

April 16, 2011 at 8:56 pm

The Supreme Court Cannot Solve Everything

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President Obama made a signing statement refusing to let Congress dictate who he can and cannot hire. In the words of Kevin Drum, Obama “thinks that Congress has no right to tell him who he can and can’t consult in the Office of the President. So he signed the bill but added a signing statement telling Congress to piss off.”

Drum adds that:

Actually, I’m curious about something here. When Congress and the President disagree about something like this, it’s up to the Supreme Court to adjudicate. But how does that usually work? Does the president abide by the law but sue in federal court to have it overturned? Or does he break the law and wait for someone to sue him? What’s the usual historical precedent?

Well, there’s not a lot of historical precedent, because first, the Supreme Court from the very beginning of the country refused to offer advisory opinions. Here’s what the Jay Court said:

The lines of Separation drawn by the Constitution between the three Departments of Government, their being in certain Respects checks on each other, and our being judges of a court in the last Resort, are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.

This is especially relevant to this particular issue: the Courts only get involved when there is an actual issue, but moreover, the Constitution really does give the President all the executive power, including consulting who he may.

But this also means the Courts can’t just solve this generally: there needs to be an actual court case of someone suing for something. It’s unclear who would or could do that here.

The one example of when the Court did step in is in Marbury v. Madison, which is probably the most important case in the history of our country, so I can’t sum it all up succinctly. But here goes: Marbury did involve is a specific person – the eponymous Marbury, who was given a judicial appointment by Adams; that appointment was rescinded by Jefferson before the actual appointment was delivered. And even in that case, John Marshall found that while Marbury had a right to the appointment, the judiciary had no right to enforce it, because the mandamus statute was unconstitutional. But a part of that decision was also the birth of the political doctrine which is very relevant here:

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This office, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.

But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.

Here, the czars have not had any other duties imposed on them by Congress. Not one. They solely provide advice and guidance to the President and his/her staff on areas of expertise. The Republican fetish of eliminating the czars is directly and clearly against the most fundamental court decision in the history of our country. This is exactly the sort of gross Congressional overstepping that calls for a signing statement. Neither party in Congress has the Constitutional ability to limit the advice the President receives.

The entirety of history of Congressional right to confirm people refers to officers who have official duty. What we have here is a hypothetical that not even Marshall thought Congress would resort to: limiting who the President can merely look to for policy advice without any additional responsibility. It’s not the Constitution’s fault that the czars annoy Republicans.

What’s important to realize (and I think Drum does) about the czars is that they do not give the President any additional power. Van Jones or whoever is just an outside advisor, that the President feels better to keep in house rather than call regularly. But the Constitution gives the executive carte blanche authority on whom he can consult with.

But it’s important to realize is that under no realistic scenario is this going to go to the courts, short of someone actually depriving the czars from receiving a paycheck which they then sue for. This is not a problem for the court system. This is for Congress and the executive to work out alone.

UPDATE: Via a Balloon Juice commenter, Barack Obama also said, “No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.” It’s patently obvious to me this falls in the former category of valid signing statements. This signing statement does not expand executive power, it just protects the ability to hire advice as he sees fit. That’s been a protected Presidential ability as long as the office has existed.

Written by John Whitehouse

April 16, 2011 at 12:23 pm

SHOCK: Obama Believes in Executive Power

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Can anyone square the circle this paragraph presents:

The answer surprised many in the room because Clinton plainly admitted the administration would ignore any and all attempts by Congress to shackle President Obama’s power as commander in chief to make military and wartime decisions. In doing so, he would follow a long line of Presidents who have ignored the act since its passage, deeming it an unconstitutional encroachment on executive power.

It’s shocking that a President agrees with previous Presidents on executive power?! I have no idea why this is surprising to anyone. But I’m also expecting this to become the new scandal for the far left.

Written by John Whitehouse

March 30, 2011 at 4:31 pm

A Song For The Budget

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I don’t post a lot about US domestic politics, mostly because I find the politics so inane (Republicans generally screw something up wildly and the Democrats have to pretend they understand and go halfway).

I thought this was an appropriate song to describe the ongoing budget negotiations:

I’ve been reading about the ongoing budget negotiations, and it seems like the range of expected outcomes is somewhere between the KFC doubledown version of a shit sandwich and just outright dousing the capital building with monkey feces.

Research shows that both parties in Congress are held responsible – just not executives. (It helps that unlike health care, Obama is keeping more distance from these negotiations publicly). That’s one reason we see Democrats moving to compromise at the end – if nothing else, there’s no massive belief among them that a shutdown will help their electoral chances. And the Republicans … well who knows, they’re all over the place. Some of the true believers want shutdown at all costs. Some of the more pragmatic want to use the true believers to get massive cuts. It’s just generally speaking a disaster.

I have no answers here – the voters gave us this Congress and we now have to live with it. Remember that next time an election comes around: no matter how similar two candidates are, they’re not the same. And that the difference between a Republican landslide and a Democratic one are the people who are pressed for time and resources getting to the polls to vote.

Let’s make 2012 better than 2010. We need it.

Written by John Whitehouse

March 29, 2011 at 8:57 pm

When Your House is On Fire, Call a Family Meeting: The Unbearable Frivolity of Andrew Sullivan

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I agree with DougJ about the the least convincing pro-intervention argument is from Richard Cohen regarding Libya. But this gem is the dumbest Libya argument against intervention yet. Andrew Sullivan:

The Libya case is an interesting one because of the need for dispatch, as events on the ground made a Congressional debate moot. But to my mind, that kind of emergency decision is precisely the moment when deliberation is necessary. Deciding war in a rush and in secret is normally not a good idea. And Obama did not have to act urgently to save American lives or vital interests. He had to act urgently for purely humanitarian reasons.

And so we now have an executive branch claiming powers far, far beyond what the Founders or any prudent constitution would allow. The presidency becomes Angelina Jolie with an air force.

So let me get this straight: the circumstances under which Obama had to make a decision made any further consultation with Congress moot – in Sullivan’s own words. But he would still argue that one is necessary. And not just necessary, but necessary in fancy italics.

Moreover, it takes special writing abilities to contradict your entire argument that thoroughly. The first sentence shows that there’s absolutely no time for discussion, the decision needs to be made immediately. The rest of the paragraph completely ignores that reality.

Needless to say, intervening after Benghazi had fallen would be the worst of both worlds: people would say the US does not caer about human suffering, only taking out dictators who interrupt oil flow. It’d be a pointless exercise. Sullivan has to know that – he admitted it to start the excerpt!

Additionally, Sullivan refuses to grapple with refugees anywhere on his blog. Reading him (and mind you this is someone who obsessively chronicles events) you would have virtually no idea about refugee crises on the Tunisian and Egyptian borders, or the EU commissioner warning of a refugee nightmare. Why? I can only guess that he still is obsessed with a Napoleonic conception of war as aggression and responding to it; and human suffering never involves people fleeing from nightmare scenarios, but people taking suffering with a stiff upper lip, because hey, it’s the British way. It’s a fundamental lack of empathy that clouds Sullivan’s reasoning. And all of that might be false. But Sullivan sure as hell isn’t answering it, that’s for sure (in the one in a million shot he responds to this post, it’s one and a million he takes this question seriously).

But it’s not just a lack of empathy, it’s an emotional commitment to reacting immediately that he does not even look at all the facts and grapple with them. And I’m not exaggerating. His blog has mentioned refugees a grand total of once since the resolution was passed, and that was just in reprinting the Security Council Resolution. So as far as I can tell, Sullivan himself has no idea what regional destabilization actually means. His lone reference to the crisis this month was – literally – on March 9 when he saidlet Egypt and Tunisia deal with it.” Really, Andrew? They have the resources and wherewithal to deal with that right now? Nothing else is going on there? There’s not going to be any regional effects from them having to deal with it? What a crock of shit. That’s not grappling with a problem, that’s Sullivan sticking his head in the sand. No responsible administration would or should think this way. Not even George W. Bush would think that way. Not even Neville Chamberlain would think this way – at least Chamberlain was willing to take the time to hitch a flight to Munich.

And then he has the gall to talk about prudence. Prudent men and women before him have realized that the boundary between the war powers and the commander in chief powers are at least somewhat a grey area. Truman was prone to overreacting (Steel Seizure case) but also did send troops to Korea without authorization. I’ve blogged about the notes from the 1945 Congress which are not authoritative by any means, but certainly fall within any reasonable definition of prudent.

This is not even to mention the shock value he’s going for with the Angelina Jolie comparison. I expect that sort of thing from an Andrew Breitbart intern, not Sullivan. (Not to mention that he has use Jolie, because “a massacre in Benghazi sounds completely awful if you use any non-celebrity framing. Seriously, try to find a better way to frame what Gaddafi pledging “no mercy” on a city of 700,000 would mean.)

This post is NOT to say this was the right intervention or that the mission is being executed in the correct way. Not at all. It’s just to say that Sullivan, in his apparent haste to make up for his grave Iraq war mistakes, is turning into the the far left caricature he once loathed. There is no subtlety. There is no hard cases. There’s only actions that apparently no one can consider prudent, despite extensive evidence that some people might actually think that. It’s insulting to what’s left of his legacy. I’m surprised he hasn’t demanded that Obama instead change the color of the White House website.

Congratulations, Andrew, you’re tarnishing your worthy legacy with shitty punditry just like David Broder before you. Good luck dealing with this shit, Tina Brown.

What Congressional Authorization Requires: A Response to Adam Serwer

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Adam Serwer on war powers:

As someone who thinks American leaders should start fewer wars and be more judicious about which wars the U.S. does choose to fight, I’m fan of requiring Congressional authorization for military actions that aren’t explicitly acts of self defense and have as much clear lead time as this one did. Even if it doesn’t end up reducing military intervention overall, it might force future presidents to think more critically about the use of force.

Except that there’s no evidence requiring Congressional authorization in practice means that presidents think more critically about the use of force. In practice, given the Iraq War and the Gulf of Tonkin resolution, it just gives the President an incentive to scare the living hell out of Congress and the American people. When that’s done, even usually sane people have a tendency to give in, for a great many psychological reasons that I don’t want to get into. But safe to say there’s good, smart people who wrongly got caught up in the Iraq war hype. And Vietnam hype.

I fully agree we ought to want the President “think more critically” about the use of force, but Congressional authorization seems to be a poor way to do it.

That does leave the question of how can we enforce this norm: one drastic way would be to abolish the 22nd Amendment. When Presidents know they have to face re-election again, they might be more concerned with long range effects. But this is highly unlikely and unwise for a great many reasons. It’s justifiably off the table.

Option two would be to elect a better Congress; that’s slightly more possible, but put a first rate fear monger in the White House and he or she would get his or her war unless it was completely ridiculous (and if we’re at the completely ridiculous phase, like President Palin wanting to invade Russia, I don’t think a norm to go to Congress is going to be the key element).

A third option would be to actually pay attention to this in Presidential elections. This is pretty convincing; What we’re seeing now is Andrew Sullivan for one not realizing what Obama being advised by Samantha Power actually meant despite Power’s article on Rwanda in the Sullivan’s own magazine. We spent the better part of a year weeding Hillary from Obama based on minuscule differences on their health care plans when Congress (read: Ben Nelson and Max Baucus) had the final say in the matter. By contrast, because of a hyper sensitive and gaffe oriented media, the closest we got to a debate on intervention on foreign policy was chest beating on Iraq, nuclear weapons use in Afghanistan, and meeting with dictators. Well, Obama (and McCain for that matter) both met with Gaddafi. And here we are.

Now, to get all constructivist on the matter:

Essentially, the Constitution is a set of norms we want judges to enforce in part, and we the public enforce in part. There’s no judge in the country who would get away with trying to stop the planes in midair; hell, look at the Korematsu decision; courts refused to opine militarily on matters that were clearly unconstitutional and already over because of national security.

If we want different war powers, we have to make that change ourselves.

UPDATE: Why DO we want Congressional authorization sooner or later? So we don’t put the military in an untenable position of choosing between the people and someone elected who is now wildly unpopular. I just don’t think a Congressional authorization meets this particular goal; there are reasons all military actions should be authorized eventually, if not prior to the action itself.

Bottom line: take this as  my musings on prior Congressional authorization. Obviously, if one does not have any forever, there are certain larger problems that emerge. (I think the context was clear in Adam’s original post, and my excise took that context away).

Written by John Whitehouse

March 23, 2011 at 2:30 pm