Balkinization  

Thursday, January 15, 2009

An Enfeebled Presidency? Not Very Likely

JB

This Newsweek cover story suggests that Barack Obama might want to take a lesson from Dick Cheney and push for an even stronger executive. It quotes Jack Goldsmith as worried
about the pendulum swinging too far, as it often does in American democracy. "The presidency has already been diminished in ways that would be hard to reverse" and may be losing its capability to fight terrorism, he says. He argues that Americans should now be "less worried about an out-of-control presidency than an enfeebled one."


With all respect to Jack, the pendulum hasn't even begun to swing yet. Barack Obama hasn't even taken office. It is a little early to be worried about an enfeebled Obama. Nor is this an accurate assessment of the historical trends.

Indeed, as I've written elsewhere, Obama takes office as probably the most powerful president in American history, in terms of what he can do and how he can project his power both around the world, in the economy and through the new forms of surveillance power that Congress has given him.

And that's really the point: Cheney's mistake was assuming that more power comes through unilateral action and through doing things in secret-- like torture.
But if you want a strong executive, you don't really need to act unilaterally or always in secret. All you have to do is to get Congress to bestow power upon you, which recent Congress's have been more than willing to do, in the AUMF, the Patriot Act, the Protect America Act, the FISA Amendments Act and the Military Commissions Act.

Barack Obama has the opportunity to be a very strong president, not an enfeebled one, in part because he has enormous Congressional grants of power and, given that his party controls Congress, has the opportunity to ask for even more power.

It's worth noting that Obama has another source of power that Bush did not have: he has an enormous campaign operation, completely with mailing lists and volunteers that are able to do work in civil society and to pressure Congress to do his bidding. This L.A. Times article notes that Obama's campaign infrastructure gives him opportunities that few Presidents, if any, have had to create a civil society powerbase along side his existing government powerbase. How he will use this power is anybody's guess, but this is not a case of an enfeebled president.

Obama may make mistakes that undermine his authority. But in terms of the possibilities of power, the Presidency has never had more tools at its disposal.

The current focus on unilateralism and on Bush's successes and failures distracts us from the larger story: the Presidency is stronger now because it has been the beneficiary of a long term process of state building, creating the National Surveillance State. This exercise in state building involves the work of all three branches, not just the Presidency; it predated George Bush and will continue long after he is gone. Obama, who takes office after Bush, will be the next participant in a much longer term trend. This trend in Presidential power building poses enormous risks for liberty whoever occupies the White House, and will require the construction of institutional checks and balances to compensate. This is precisely the wrong time to worry about an enfeebled presidency, or of a pendulum swinging backwards to the time of Warren Harding and Calvin Coolidge. The American Presidency is currently on steroids, and will continue to be for a very long time to come.


Comments:

In his book "Terror Presidency," Professor Goldsmith's points of reference in comparing historical presidential war powers were the nearly unfettered powers wielded by FDR in WWII and the highly constricted powers available to Mr. Bush during Goldsmith's tenure in OLC. The book does a very good job describing these limitations.

Mr. Bush only regained a portion of the Executive's pre Vietnam/Watergate powers. It is a very interesting question whether Mr. Obama, freed from Dem partisan carping and litigation in Congress, the media and academia (apart from maybe Glenn Greenwald), will actually reclaim further ceded Executive powers rather than voluntarily relinquish what Mr. Bush regained as Goldsmith fears.
 

"It's worth noting that Obama has another source of power that Bush did not have..."

Besides the one you mention Obama is also a powerful and persuasive speaker in marked contrast to his predecessor.
 

Mr. Obama's powers to conduct foreign intelligence gathering have just been reinforced.

The FISA Court of Review just published a redacted public opinion affirming a classified FISC ruling that the FISA Amendments Act of 2008 ratifying the Terrorist Surveillance Program (for which Mr. Obama voted as a Senator) did not violate the 4th Amendment.

Specifically, the FISCR held that a foreign intelligence gathering exception to the 4th Amendment warrant requirement exists for surveillance that is in part intended to obtain gather foreign intelligence and targets foreign powers or agents of foreign powers reasonably believed to be located overseas even if a US person may be on the other end of the telecommunication. This is simply an application of the Truong line of Circuit cases and the Supreme Court's special exceptions case to the facts of the TSP in an "as applied" ruling.

More interestingly, the FISCR held that the TSP was a reasonable search under the 4th Amendment even without individualized findings of probable cause based upon targeting and minimization rules established by statute, executive order, and NSA rules.

In commentary very likely intended for the courts considering the lawsuits against the telecoms, the FISCR rejected the petitioners' facial 4th Amendment challenge to the FISA Amendments and TSP based upon a hypothetical "parade of horribles" for which there was no evidence.

The FISCR provided no commentary on the balance of powers issues of whether Congress had the Article I authority to direct and limit the President's CiC power to conduct foreign intelligence through the original FISA. However, this opinion does eliminate the argument that Congress was enforcing the 4th Amendment by enacting FISA.
 

This comment has been removed by the author.
 

Friday 16th January 2009

As I began this post my Backward Bush Countdown Clock has just ticked down one more day !

On the Torture front, it was immensely encouraging to watch Senator Leahy's exchanges with Attroney-General Designate Holder. It certainly sounds as if the United States is applying to rejoin the club of civilised western democracies.

Coming after the Susan Crawford Decision in the Mohammed al-Qahtani case and DC Circuit Judge Leon's Grant of Habeas Corpus relief ordering the release of Mohammed El-Gharani and,

mirabile dictu

this DOD General Counsel's Office Recruitment Advertisment

The DoD Office of General Counsel is soliciting resumes for multiple attorney term positions. Successful applicants will be part of an interagency team representing the government in over 200 habeas corpus petitions filed in D.C. District Court by individuals detained by DoD at Guantanamo Bay. These positions start immediately and are for a term of not to exceed 3 years. The positions are within National Security Personnel System (NSPS) Pay Band YA-2/3 (Salary: $39,407.00 – $130,211.00 depending on experience and qualifications). The ideal candidate should have a background in civil or criminal litigation, experience with intelligence matters, and an active security clearance. However, attorneys with any litigation experience are encouraged to apply. These positions are located in the Washington, D.C. area, with the potential for some travel to Guantanamo Bay. Selectees will be required to provide evidence that they are active members, in good standing, of the bar of the highest court of a State, US Territory or Commonwealth, or the District of Columbia.

does seem to provide prima facie evidence that the Rule of Law is coming back to take over the Bush Era Global War on Terror

The world should be a safer place for that.

Let's hope LSR Bart has plenty of tranquillisers - there's more coming.
 

We've spent seven years now watching Bush, Cheney, Addington, Yoo, Bybee, Philbin, Goldsmith, etc, etc, et al, wage their hysterical little Global War on Everything in General and Nothing in Particular. Why would anyone suppose doing things differently would be a bad idea?

We need a president who does his job, not one that spends his time inventing reasons to violate or subvert our laws. Equally, we also need lawyers who, unlike Jack Goldsmith, are not willing to aid and abet criminals by fabricating apologies for their crimes.

George Bush is the weakest president we've ever had -- not because he failed to reclaim powers that were lost after Nixon, but simply because we've never had a president so completely lacking in the judgement and character the job requires. Under the Constitution, the President has no power of his own, he executes the powers delegated to him BY LAW, and does so by FAITHFULLY EXECUTING THE LAW as he's sworn to do. That's why they called it the "executive" branch.

George Bush turned his back on his oath, his duty, and on human reason itself. We have nothing to fear by abandoning the unlawful and misdirected policies of Mr. Bush and his gang of neo-con advisors such as Prof. Goldsmith.

The bottom line on Goldsmith is simple: he's wrong. He's a lot more honest than Addington or Yoo, but he's still just another a neo-con ideologue. Look around you -- why would anyone think these people know what they're doing given their results over the last eight years??

It's no-brainer at this point -- the clearest thing about them is their confusion and lack of understanding. I can tell you exactly what Goldsmith is worried about: rehabilitating Goldsmith. It's just like "the Iraq wasn't a bad idea, Rumsfeld screwed it up" meme. Now the concern is to salvage the Federalist Society's legal agendas by blaming all the legal fiascos and frauds on the incompetence of Alberto Gonzalez and / or the arrogant fanaticism of David Addington.

It doesn't wash: the whole administration was rotten from top to bottom, and Gates, Mukasey, and Goldsmith are as complicit in crimes as Rumsfeld, Gonzales, and Yoo were.
 

Mourad:

It certainly sounds as if the United States is applying to rejoin the club of civilised western democracies.

It is soooo important to be seen keeping up appearances so the One will be liked by all the right people.

The DoD Office of General Counsel is soliciting resumes for multiple attorney term positions. Successful applicants will be part of an interagency team representing the government in over 200 habeas corpus petitions filed in D.C. District Court by individuals detained by DoD at Guantanamo Bay...The ideal candidate should have a background in civil or criminal litigation, experience with intelligence matters, and an active security clearance. However, attorneys with any litigation experience are encouraged to apply

does seem to provide prima facie evidence that the Rule of Law is coming back to take over the Bush Era Global War on Terror


Has it occurred to you that DoJ's description of an ideal candidate - an attorney with an active security clearance with experience in determining whether POWs qualify as enemy combatants - describes the dozens of JAG officers representing the military and the detainees over the past seven years of the Bush administration. All the habeas process does is repeat what has been going on for years with a civilian instead of a military judge hearing the evidence.

Over one out of ten military tribunal releasees have returned to terrorism. Given that the civilian judge just released an al Qaeda despite 3-4 witnesses of his training in Afghanistan, it appears that rate will soon get far worse.

That is OK with you so long as we are keeping up appearances of being civilized.
 

Bart,

"Over one out of ten military tribunal releasees have returned to terrorism."

BS. Please state the exact numbers and cite your source for them. This is nothing but an unsubstantiated claim.

"Given that the civilian judge just released an al Qaeda despite 3-4 witnesses of his training in Afghanistan, it appears that rate will soon get far worse."

The civilian judge in question being Richard J. Leon, a co-founder of the Federalist Society, a co-author of the infamous Minority Report of the Iran-Contra Commission (the dissent led by Congressman Dick Cheney), and a neo-con judicial appointee of the Bush II administration. His finding was that none of the government's evidence was credible, and the detainee in question was 14 years old when he was brought to Guantanamo Bay to be tortured and abused like all the other detainees, including two who made the statements the judge dismissed as not credible.

And you ought to be ashamed of yourself Bart. Being civilized isn't a matter of keeping up appearances, it's a matter of human reason.
 

Charles Gittings said...

BD: "Over one out of ten military tribunal releasees have returned to terrorism."

BS. Please state the exact numbers and cite your source for them.


You will find the recently released Pentagon stats and a link to meet some of the terrorists mistakenly released by the military tribunal system here.

BD: "Given that the civilian judge just released an al Qaeda despite 3-4 witnesses of his training in Afghanistan, it appears that rate will soon get far worse."

The civilian judge in question being Richard J. Leon, a co-founder of the Federalist Society...


Red herring. The fact that the Jusge Leon is a judicial conservative does not mean that he is qualified to determine the status of military enemy combatants.

Judge Leon's reasoning for releasing this terrorist was that there were conflicts in the testimony of three independent witnesses present at al Qaeda training camps who saw the terrorist train there. The fact is that there will be conflicts in all testimony unless the stories of the witnesses have been coordinated ahead of time. One witness should be enough to meet the low threshold for detaining a prisoner of war. Discounting not one butthree witness statements and releasing a terrorist is simply unconscionable.

Because the terrorist was a teenager when captured, I have a feeling Judge Leon felt sorry for him and released him. I sure hope that this terrorist does not end up killing our troops or civilians in the war zones because of Judge Leon's misplaced sympathy.
 

And you ought to be ashamed of yourself Bart.

# posted by Charles Gittings : 10:19 PM


If there is anything we have learned from Bart, it is that he has no shame.
 

I have a feeling Judge Leon felt sorry for him and released him.

# posted by Bart DePalma : 11:32 PM


On the plus side, Bart is finally admitting that rightwingnut judges are guilty of judicial activism.
 

Bart-

The statistics you cite include defining those who have "returned to the fight" as people who have MERELY SPOKEN OUT against their unlawful dentention. You'll notice that at least two of the Uighur detainees are included in that list-- it seems ridiculous that they should be considered to be "returning to the fight" given they weren't fighting to begin with. Or are critical op-eds in the NYT grounds for indefinite detention?
 

In his book "Terror Presidency," Professor Goldsmith's points of reference in comparing historical presidential war powers were the nearly unfettered powers wielded by FDR in WWII and the highly constricted powers available to Mr. Bush during Goldsmith's tenure in OLC.

The mistake you, Goldsmith and other advocates of executive power make is to take the very highest pitch of executive power, i.e., 1934-1974 as the norm. It is nothing of the kind. Before 1934 or so the President did not have the sort of structures at his disposal that FDR did, and so there was no need for laws to restrain what did not exist.

From about 1934 to 1974, we gave the President vast tools of power with no restraints or oversight. Not too surprisingly, the Presidents abused these powers. The abuses were not limited to Bad Apple Nixon, they involved every President from FDR onward. At least over the Kennedy, Johnson and Nixon Administrations there was a clear pattern of escalation.

The moral here is that it is not just an occasional aberration like Nixon; the problem is systemic. The President, no President, can be entrusted with that sort of power. That's the whole point of having a system of checks and balances, that power tends to be abused.

Nor is it any use to argue that St. George never abused such power. Even assuming that to be so, the fact that one President can resist the temptation does not prove that all Presidents can resist the temptation. In fact, abuses uncovered from FDR to Nixon clearly proved that Presidents who can resist the temptation are decidely the exception -- if they exist at all.
 

EL:

The FDR exercise of war powers was the norm for the history of the Republic. Once we were at war, the only restriction on the President in his command of the war was the most basic common law of war and the budgetary restraints offered by Congress.

Today, the President employs a battalion of attorneys trying to navigate a myriad of treaties and statutes applying to the conduct of war and contradictory applications of this law by predecessors, allies and courts. Then, the President must not only fight the war on the battlefield, but also in court fending off lawfare litigation by NGOs and the enemy attempting to harry and stop our military in the courtroom when it cannot be defeated on the battleground.

Indeed, two colonels in the Chinese People's Liberation Army have written a book entitled Unrestricted Warfare where they describe how China can defeat a technologically superior opponent (ie the United States) indirectly by attacking our morale through the media, our economy through a variety of means and hamstring the use of our superior military through lawfare by using proxy NGOs to litigate against the United States. Essentially, the Chinese codified the Islamic fascist playbook and added some twists of their own.

Consequently, I challenge some of our legal academics and attorneys to stop and consider why our enemies and rivals consider their work to be a form of warfare against the United States that will grant those enemies and rivals victory.
 

"Consequently, I challenge some of our legal academics and attorneys to stop and consider why our enemies and rivals consider their work to be a form of warfare against the United States that will grant those enemies and rivals victory."

Little Lisa's bro makes this challenge without considering that for every action there is an equal and opposite reaction in foreign relations as there is in physics (but unscientific). So how far back does he want our legal academics and attorneys to go with his suggested consideration? Or is escalation desirable in global competition, including warfare? Who knows what evil lurks in the minds of men? Why the Shadow and little Lisa's bro!
 

Consequently, I challenge some of our legal academics and attorneys to stop and consider why our enemies and rivals consider their work to be a form of warfare against the United States that will grant those enemies and rivals victory.

# posted by Bart DePalma : 8:22 AM


Good luck with that. As near as I can tell, pretty much everyone who encounters you comes away thinking that you're a nutcase.
 

The "national surveillance state" now has its own Playmobil toy, to help inculcate sound values in toddlers.
 

Bart,

"The fact that the Judge Leon is a judicial conservative does not mean that he is qualified to determine the status of military enemy combatants."

Ha. What qualifications are you talking about??

Only a willingness to accept bogus evidence at face value and ignore the facts -- Judge Leon just isn't prejudiced and corrupt enough for you.


"You will find the recently released Pentagon stats..."

"Stats"?

Those are the unsubstantiated claims of known war criminals about the victims of their crimes, stated by a PR flack who's been regurgitating their lies for years. It's one more load of the stale BS these stooges have been fabricating for seven years now.

Anyone who's interested in the truth of the matter should see Andy Worthington's article on the topic.

This kid is no terrorist, and like most of the detainees, he never should have been sent to Guantanamo Bay in the first place.

And it's absolutely despicable that you're willing to slander a child for the sake of your demented political beliefs Bart, just like a Nazi willing to send a child into a gas chamber. The kid isn't old enough to consent to sex, but he's competent to be judged a terrorist on the basis of hearsay obtained under torture.
 

By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people.
...
The founders of our government were familiar with the history of that struggle; and secured in a written constitution every right which the people had wrested from power during a contest of ages.
...
Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law.
...
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.
...
This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate.
...
they secured the inheritance they had fought to maintain, by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the Judiciary disturb, except the one concerning the writ of habcas corpus



Despite the Court's shortsightedness in failing to list Bart as one of the entities that cannot supercede the Constitutional limitations on the power granted to government by citizens (and the Court's equally 20/200 problem with failing to mention that a right to engage in pre-trial torture, kidnap from ports around the world and the like are not powers granted in any of the Articles) I think they otherwise issued an, "everything old is new again" opinion.

The President is not a superhero, granted huge and mysterious powers, with law a form of Krypton disabling Superman and preventing him from saving the world. Even comic books are more sophisticated in their storylines (not the ones written by Bush staffers, but actual, commercial ventures)

The President is a civil servant, granted the leadership status for both military and police powers, all of which are limited by the power actually granted by the people, and subject to the rule of civilian law in any situation where courts have not been required to be closed due to unrest, and to military law (not Executive fiat unfettered, but the UCMJ and laws of war including the Geneva Conventions)when unrest has reached a stage that leaves courts incapable of operating.

Predecessors to FDR also used and exploited slaves and exploited child labor, but Obama doesn't get to do that either (since no one really knows what Bush did with the children he disappeared, so it's hard to say what he will ultimately "get away with" but not hard to say that snatching children and disappearing them isn't legal) It's like saying the business owners should be able to have slaves and work toddlers, because way back when someone else did and we don't want capitalism to lose its "power"

Pistachio or Cashew?
 

Mary said...

By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers...

False analogy.

You are equating the relationship between an innocent citizenry and its government with the relationship between a government and foreign enemies waging war against the citizenry.
 

"Mr. Bush only regained a portion of the Executive's pre Vietnam/Watergate powers....

... and Nixon was right (and unfairly persecuted): "When the preznit does it, that means that it is not illegal."

Say "Sieg Heil", "Bart".

Cheers,
 

"Bart" DePalma:

... some of the terrorists mistakenly released by the military tribunal system here.

Oh. So the military commission system that Chteney and Dubya cobbled up is broken? What a surprise.

Judge Leon's reasoning for releasing this terrorist was that there were conflicts in the testimony of three independent witnesses present at al Qaeda training camps who saw the terrorist train there. The fact is that there will be conflicts in all testimony unless the stories of the witnesses have been coordinated ahead of time....

In fact, if they totally contridict one another, we can rest assured of no collusion ... iundless they're sly and using reverse psychology...

... One witness should be enough to meet the low threshold for detaining a prisoner of war.

The man with one watch knows what time it is, but the man with three watches is nevefr sure, eh?

Yes, indeed, one witness is best, because there's no conflicting testimony to cast doubt. We should etend this principle and insist that convictions on the basis of no testimony whatsoever is the most reliable, as in such a situation it is assured that no one will be unfairly locked up due to wrongful testimony.

As long as we have torture in the prosecutorial toolbag, maybe we should revert to medieval standards for conviction again, and require two witnesses to the act or open confession by the accused. That was the balance struck back then.

Cheers,
 

Charles:

Bart: "The fact that the Judge Leon is a judicial conservative does not mean that he is qualified to determine the status of military enemy combatants."

Ha. What qualifications are you talking about??


How about a dose of common sense and a willingness to apply the law as written even when you feel sorry for the petitioner?

El-Gharani was a teenage a Chadian national and Saudi resident captured in a Pakistani mosque with other al Qaeda. How precisely does an impoverished African teen make his way over a thousand miles via Saudi Arabia to be captured with al Qaeda in Pakistan? Unless El-Gharani can muster a reasonable innocent explanation, this evidence alone justifies a finding that he is al Qaeda.

However, the military also had three other al Qaeda eyewitnesses who placed El-Gharani at an al Qaeda camp in Afghanistan and at Tora Bora. However, because the military questioned the credibility of other statements by these witnesses, Leon demanded that each statement against El-Gharani have exact independent corroborations.

What kind of super beyond a reasonable doubt standard is this? A single eyewitness statement, even when called into question under cross, is sufficient to sustain a conviction under the beyond a reasonable doubt standard. Leon is saying that three eyewitness statements cannot sustain a military status finding at the basement preponderance of evidence standard.

Leon is a very intelligent judge, so this game playing was not out of ignorance of the law. It strongly appears that Leon felt sorry for the teenage terrorist and came up with a pretext to order his release.

If El-Gharani kills anyone after his release, the blood will be on Judge Leon's hands and the hands of the Boumediene Five for creating this farce.
 

Back to Prof. Goldsmith's worry about Mr. Obama conceding his Article II powers, Holder's confirmation testimony as posted over at The Volokh Conspiracy is instructive.

It is fun to see Holder on behalf of Obama tap dance between the Dem anti-Bush mantra that the President must follow laws enacted by Congress and his obvious desire to preserve the President's Article II powers which Mr. Bush has partially recovered after a post Vietnam/Watergate interregnum.

Based on his and his team's public statements and unattributed comments to the press, Obama plans to preserve his options to exercise all the Bush policies while throwing the red button issues of waterboarding and Gitmo under the bus as sop to his supporters here and over at the EU. In the larger scheme of things, Obama has given up very little by doing so.
 

"How about a dose of common sense and a willingness to apply the law as written even when you feel sorry for the petitioner?"

Oh my, that's rich Bart.

A dose of common sense you say? As determined by . . . ?

This a US District Judge, appointed by the President and confirmed with the advice and consent of the US Senate. I'd never vote to confirm a right-wing fanatic like Leon in a million years myself, but I'd still have to concede that he's got a functional minimum of common sense.

Meanwhile, the Bush administration detainee policies have been utterly senseless for seven years and counting. The only real problem you have with Leon is that his opinion disagrees with your prejudices and fallacies.

The laws as written you say? AS WRITTEN WHERE??

Certainly not in the US Code, the IMT Charter, Hague, Geneva, or ICAT, all of which the Bush administration has been violating BY POLICY from day one. All you really want is a rubber stamp, and that's truly senseless, a complete repudiation of reason, justice, and oh by the way, political prudence and personal liberty.

And listen to you...

"Unless El-Gharani can muster a reasonable innocent explanation, this evidence alone justifies a finding that he is al Qaeda.

Guilty until proved innocent on the basis of a jaundiced supposition and the flimsiest kind of guilt-by-association.

"A single eyewitness statement, even when called into question under cross, is sufficient to sustain a conviction under the beyond a reasonable doubt standard."

This kid hasn't even been charged with a crime, let alone convicted of one. The alleged witnesses haven't even been deposed, let alone cross-examined under oath. What they have been is TORTURED.

Leon is saying that three eyewitness statements cannot sustain a military status finding at the basement preponderance of evidence standard.

NO -- he's saying the government failed to present any credible evidence that would meet that standard.

And I got news for you Bart -- Leon's standard isn't going to pass muster on appeal, in the unlikely event the appeals proceed much further (Boumediene is in the D.C. Cir.). It's hard to see the Obama administration doing anything but flushing the Bush administration's brief right down the toilet where it belongs.
In little bitty pieces even.

You can cry all you want Bart: you're wrong, and you fascists have lost your idiot war on the law. You just don't know it yet.
 

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