Balkinization  

Thursday, April 24, 2008

As we prepare to elect our next constitutional dictator

Sandy Levinson

Whatever one thinks of the egregious George W. Bush, the powers of the President are not going to diminish in the next administration. None of the candidates, including my personal favorite Barack Obama, has given a serious speech suggesting that the President must recognize a far greater role for Congress in making fundamental decisions of war and peace.

In any event, one should take special note of Hillary Clinton's remarkable statement to ABC News, "I want the Iranians to know that if I'm the president, we will attack Iran. In the next 10 years, during which they might foolishly consider launching an attack on Israel, we would be able to totally obliterate them." This is the statement of someone running for constitutional dictatorship, not for a "republican form of government" presidency who might have said, for example, "as President, I will certainly urge the Congress to declare war on Iran should Iran attack Israel"--though one might wonder exactly why, since the brutal truth is that an attack on Israel, however egregious, would not constitute a serious security threat to the United States (which is why Israel very wisely has constructed its own nuclear deterrent instead of relying on the US and the vagaries of American domestic politics)--"though I recognize that that decision is ultimately for Congress to make."

Unfortunately, Obama, for reasons of domestic politics, cannot offer any criticism of this extraordinary truculent threat, lest he be viewed as soft on Iran or insufficiently supportive of Israel. And McCain, of course, has also exhibited a certain "irrational exuberance" with regard to the prospect of attacking Iran. So I guess it's just the case that in electing our next president/commander-in-chief/constitutional dictator, we are doing exactly what Congress did when passing the egregious "authorization" giving George W. Bush a blank check to go to war in Iraq. I certainly hope that our next p/c-i-c/c-d has the requisite judgment for that exalted office.



Comments:

As long as you're at it:

"Hillary Clinton believes that Israel's right to exist in safety as a Jewish state, with defensible borders and an undivided Jerusalem as its capital, secure from violence and terrorism, must never be questioned."
That's a change in US policy no one's mentioned.
 

Sandy:

For anyone who believes Clinton when she implies that she would drop nukes on Iran as a response for dropping nukes on Israel, I have some beachfront property out here in Colorado to sell them.

Even if one were to take a Clinton statement about taking affirmative military action at face value, we are talking about stump rhetoric meant for dramatic effect. A politician is not going to discuss going to Congress for authority to go to war. He or she is simply going to talk about the war.

For example, when standing on the rubble of the WTC, Bush did not proclaim he would go to Congress for an AUMF to hunt down al Qaeda. Instead, he simply said they would be hearing from all of us very soon. They did.
 

So lets now rehabilitate April Glaspie, who told Saddam that if Iraq invaded Kuwait the US would do nothing. This mistake led to the first Gulf war and created the mess we are currently in, but apparently you would rather have mild statements followed by war rather than (overly) strong statements that deter war. Personally, I care more about what is done than what is said.
 

Normatively revised HRC: "A nuclear attack by Iran on Israel would call for immediate discussion!"
 

"Bart" DePalma:

For example, when standing on the rubble of the WTC, Bush did not proclaim he would go to Congress for an AUMF to hunt down al Qaeda. Instead, he simply said they would be hearing from all of us very soon. They did.

We noticed. We also heard "Bring them on!" and other trash talking like that. Where's bin Laden?

Cheers,
 

The point is not the choice between doing nothing and doing something (or everything). Rather, it is who, in a constitutional republic, gets to make those choices. George HW Bush was mistaken in 1991 in believing that he had the unilateral authority to take the country to war, but, given his belief--was it supported by an OLC opinion, I wonder?--he behaved as a dictator behaves: ordering American troops to Saudi Arabia, lying to the public in the runup to the November election about his intentions, and then waiting until it would have created a political, and maybe even a constitutional, crisis to get authorization from Congress.

Bart believes that Hillary is simply lying. Does Howard Gilbert disagree and believe that she really will unilaterally order a devastating attack on Iran should the leaders of that country be so stupid as to attack Israel (stupid because it would require disbelief in the credibility of Israeli willingness to engage in massive retaliation)?

Why wouldn't it have sufficed to say that "I am instructed by my President that he will seek congressional authorization to invade your country if you make a move into Kuwait"? Would that be unbearably wimpish? Do we have to accept a dictatorial President because, after all, so many bad people around the world are themselves dictatorial leaders?
 

From the day a President is sworn in, he/she thinks of how he/she will be seen in history. They want to make their bones as Commander-in-Chief, usually with little wars against weak countries. This is sort of like the generals' fruit salad most of which may not have involved serious risk to life and limb. Presidents like to talk tough because they can. Some have been at risk but many have not. Yes, there is a danger, as at present. But I don't think Obama, Clinton or even McCain would do as Bush 43 did. Even George W has somewhat backed off his 2002 National Security Strategy.
 

Ever since Nixon all presidents have tried to maintain and extend their power and have had bureaucratic organs responsible for doing so. OLC/White House counsel's job is to protect presidential power; it was from Reagan's OLC that the unified executive theory arose. OMB's job is to ensure that presidential power extends throughout the government; Clinton I used it as extensively as Bush I. Bush II's contributions include political commisars posted deep throughout the government in goal-setting and communications organizations.

In those few instances where Congress has challenged executive power grabs (war powers act, foreign intelligent surveillance act), it has recognized divergent views of the branches, and the executive has interpreted the recognition as legitimation. It will take a much less craven, sold-out Congress to challenge this continual accumulation of power.

It has become paradigmatic to use the Steel Seizure case concurring opinion as the analytical tool for measuring power. Although I am not an originalist, I have been reading a lot of founding era texts lately, and their idea of federal power (even the federalists') was much more limited than that assumed in the Steel Seizure case -- the idea that there could be powers beyond those expressly granted to the federal government which a president could use unless barred by Congress (and maybe even then, the tide having power even at low ebb) would have astonished Madison. We've been given a democracy if we can keep it but we haven't.
 

RF's thoughts as to what Madison thought (what of his fellow Federalist, Hamilton, who appalled him too?) ... given how much has changed, I'm not sure how much someone "not an originalist" would rely on such things.

BTW, was George Washington's neutrality pledge and executive privilege decisions, to name two, really "expressly" covered by the Constitution except in some vague open-ended fashion?

Anyway, the candidates' answers to Charlie Savage of the Boston Globe's survey on executive power are quite relevant. As to a speech, great idea. Chris Dodd, Russ Feingold or even Al Gore (per the upcoming HBO movie on the 2000 recount) can help. Or, perhaps the dean of the Senate, Robert Byrd.

The last line of defense here btw is the people themselves, as Madison knew. First step, don't vote in the worse war mongerers.
 

". . . one should take special note of Hillary Clinton's remarkable statement to ABC News, "I want the Iranians to know that if I'm the president, we will attack Iran. In the next 10 years, during which they might foolishly consider launching an attack on Israel, we would be able to totally obliterate them." This is the statement of someone running for constitutional dictatorship, not for a "republican form of government" presidency".

No, it is not. It is a statement of a political candidate [as in, "Who put the 'candid' in 'candidate'] who is seeking the Jewish vote.

That's the whole of it.
 

Professor Levinson’s reminder that the US Constitution vests the power to declare war in the Congress rather than the President, has to be considered alongside the fact that the practice of declaring war has somewhat fallen into disuse.

On another thread, I pointed out that the last time the USA declared war in due form was after Pearl Harbor and that the present reluctance of all nation states formally to declare war is ascribable to the fact that after WW2 wars of aggression became unlawful under the UN Charter and no state cares to announce that it is taking action which is unlawful in international law.

The invasion of Iraq was the last war conducted by the USA. There was no declaration of war by the Congress.

In the UK there was some shameful manoeuvering by the Blair government. Absent UN authority under Chapter 7 of the UN Charter, UK legal opinions were that participation in the Bush/Blair war would be unlawful. Knowing this, the heads of the UK’s armed forces required the Attorney-General to certify that the proposed military actions were lawful.

That was the origin of the notorious “dodgy dossier” falsely stating that Saddam had WMD which could be used to attack British sovereign territory (the sovereign base areas in Cyprus) in 45 minutes, a pretext which, it seems, enabled the Attorney-General to take the view that the invasion could be justified as an act of self-defence against an imminent threat and to issue an opinion declaring the invasion lawful. As we now know the intelligence was bogus.

Hence the extreme reluctance of the UK government to allow the customary inquiry into the war (by a commission of Privy Councillors headed by a Judge) to start work. The government fears a finding that the UK acted unlawfully and wishes the inquiry only to take place long after the principal actors have left the stage.

As we know, in the UK the power to declare war or to use military force is presently a prerogative power of the Crown (which in practice means the power is vested in the Cabinet) – although there are moves to enact legislation vesting the power in Parliament – but Professor Levinson’s post is a timely reminder that in both our countries, the balance between the Executive and the Legislature appears to be tilting the wrong way and there are serious constitutional questions to be resolved.
 

The fact that Senator Clinton was prepared to say with apparent equanimity that she would be prepared to see the 71 million people of Iran “obliterated” seems to me to demonstrate the continuing validity of the WW2 advertising campaign: “Careless Talk Costs Lives” .

But the danger of foreign alliances was foreseen by that great English gentleman and product of the European Enlightenment, George Washington. In his Farewell Address to the Nation, published in the American Daily Advertiser on 19 September 1796, Washington admonished the new Republic on the enlightened conduct of foreign policy:-

“The nation which indulges towards another a habitual hatred or a habitual fondness is in some degree a slave. It is a slave to its animosity or to its affection, either of which is sufficient to lead it astray from its duty and its interest. Antipathy in one nation against another disposes each more readily to offer insult and injury, to lay hold of slight causes of umbrage, and to be haughty and intractable, when accidental or trifling occasions of dispute occur. Hence, frequent collisions, obstinate, envenomed, and bloody contests. The nation, prompted by ill-will and resentment, sometimes impels to war the government, contrary to the best calculations of policy. The government sometimes participates in the national propensity, and adopts through passion what reason would reject; at other times it makes the animosity of the nation subservient to projects of hostility instigated by pride, ambition, and other sinister and pernicious motives. The peace often, sometimes perhaps the liberty, of nations, has been the victim.

So likewise, a passionate attachment of one nation for another produces a variety of evils. Sympathy for the favourite nation, facilitating the illusion of an imaginary common interest in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter without adequate inducement or justification. It leads also to concessions to the favorite nation of privileges denied to others which is apt doubly to injure the nation making the concessions; by unnecessarily parting with what ought to have been retained, and by exciting jealousy, ill-will, and a disposition to retaliate, in the parties from whom equal privileges are withheld. And it gives to ambitious, corrupted, or deluded citizens (who devote themselves to the favourite nation), facility to betray or sacrifice the interests of their own country, without odium, sometimes even with popularity; gilding, with the appearances of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation.

As avenues to foreign influence in innumerable ways, such attachments are particularly alarming to the truly enlightened and independent patriot. How many opportunities do they afford to tamper with domestic factions, to practice the arts of seduction, to mislead public opinion, to influence or awe the public councils. Such an attachment of a small or weak towards a great and powerful nation dooms the former to be the satellite of the latter.”


It seems to me that those words very accurately describe the nature of the relationship between the USA and the State of Israel – except of course that successive US administrations have tolerated the development of a sizeable Israeli arsenal of WMD which makes matters even more complicated.
 

Bart de Palma said:

“Even if one were to take a Clinton statement about taking affirmative military action at face value, we are talking about stump rhetoric meant for dramatic effect. A politician is not going to discuss going to Congress for authority to go to war. He or she is simply going to talk about the war.

For example, when standing on the rubble of the WTC, Bush did not proclaim he would go to Congress for an AUMF to hunt down al Qaeda. Instead, he simply said they would be hearing from all of us very soon. They did.”


Careless talk costs lives – see above. As discussed on another thread, the so-called “war on terror” is not a war, any more than the “war on poverty” is a war. Wars take place between sovereign states.

Bush’s “stump rhetoric meant for dramatic effect” or, as I prefer to put it, “political hyperbole”, which confused the need for effective international co-operation to arrest and prosecute terrorists with a “war”, has produced its own can of worms.

It is now clear beyond peradventure that such careless talk leads to multiple abuses - extraordinary rendition (kidnapping)- torture - unlawful detentions - to name but a few.

But an out of control executive does not seem to concern you, which is a strange position for an attorney. Counsel are in a very real sense members of the Court and their commitment is supposed to be to uphold the rule of law - not subvert it.
 

Professor Levinson said:

“George HW Bush was mistaken in 1991 in believing that he had the unilateral authority to take the country to war, but, given his belief-- was it supported by an OLC opinion, I wonder?-- he behaved as a dictator behaves: ordering American troops to Saudi Arabia, lying to the public in the runup to the November election about his intentions, and then waiting until it would have created a political, and maybe even a constitutional, crisis to get authorization from Congress.”

The difference between the Gulf “War” and the Iraq War is, of course, that in the case of the Gulf War the UN authorised the use of force to get Iraq out of Kuwait by UN Resolution 678 of 29 November 1990.

Therefore the Gulf “War” was not legally a war (of aggression) at all, but the enforcement of the will of the international community under Chapter 7 of the UN Charter.

I may be wrong but I rather think that the corresponding resolution of the US Congress of 12 January 1991 was lawful under the provisions of the United Nations Participation Act 1945.

Thus both the Korean “War” and the Gulf “War” were not legally wars at all but the Iraq War was –and while the first two where lawful as a matter of international law, the third was not.

It is worth remembering that the Bush/Blair alliance tried to get UN authorisation to give them legal cover, which “Poodle” Blair needed politically much more than did Bush (given Republican contempt for the UN anyway). They failed to get it which is when the alliance became a conspiracy.
 

Joe --

I am not an originalist, and think Heller will be the high point of the originalist movement (although the murder victim statement case this week is mired in it). However, I am still looking for a limiting principle that will set a floor for rights -- certainly the 4th amendment has been eviscerated by a rule dependent on how much privacy society agrees to.
 

sandy levinson said...

Why wouldn't it have sufficed to say that "I am instructed by my President that he will seek congressional authorization to invade your country if you make a move into Kuwait"? Would that be unbearably wimpish?

Now that you mention it, that statement does have a "I'll have to ask my wife if I can go play poker with the guys" sort of ring to it.

Sandy, I think we need to separate what we both agree to be the necessity of having a check on the Executive's ability to go to war and the advisability of mentioning that need when confronting foreign powers.

When you are making a threat of war, it has to sound like you can deliver on the threat. Threatening to ask permission to go to war is not going to achieve that goal. The absolute dictator Saddam Hussein would have LHAO if our ambassador delivered your message.
 

The absolute dictator Saddam Hussein would have LHAO if our ambassador delivered your message.

# posted by Bart DePalma : 10:35 AM


Given all the support that Reagan provided him, could you blame Hussein for laughing at our ambassador?
 

I appreciate your search, and realize you said upfront you were not an originalist, RF, but my reply was meant to suggest that seeking what would appall Madison might in various cases not really do the trick.

As to privacy, "reasonable" and so forth (including unemunumerated rights) in some fashion will be a result of contemporary understanding, which in some fashion will be influenced by what "we" find "self-evident."

This is originalist (a word I admit is hazy in application) as well, at least to the degree that those who accepted natural law determined it based on human reason based on currently available criteria, including the sense of the community at large.

The same would apply when interpreting words like "reasonable" or "cruel." But, what the majority accepts isn't the only guide to interpretation, as case law would tell you, allegations by the like of Scalia etc. notwithstanding.

It's just that looking at what Madison etc. thought really only takes you so far.
 

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