Tuesday, February 05, 2013
Why the legal issues in the White Paper are not the most important issues, and how Jack Goldsmith gets it right
Mary L. Dudziak
The leak of a White Paper on targeting killings is getting the expected attention from law bloggers and others, with much commentary focused on whether the legal analysis is correct – for example the definition of “imminence.” The precise legal analysis is a distraction from more compelling issues, which are taken up by Jack Goldsmith in a Washington Post op-ed. I often disagree with Goldsmith, but this time I find myself in agreement. In part.
I really don't understand this post -- and not just because I'm almost certainly one of the bloggers whose work is apparently distracting people from more important things. You say we need a new "war politics" based on transparency and engagement, but you don't think the content of the war politics we have now is important? Pointing out that the US is currently making life or death decisions on the basis of flawed legal theories is a "distraction" from creating that new politics? (A politics in which, apparently, the law has no place.) Helping the populace develop "the capacity to know what their nation is doing" doesn't involve educating them about the legal basis the nation claims justifies its actions?
I guess political engagement is valuable now simply for the sake of political engagement. The point of such engagement -- ie, transforming the way the US thinks about the use of lethal force abroad, which is ineluctably shaped by the law -- is irrelevant. Very strange.
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War, foreign policy, two complex subjects with no simple answers. I read Jack Goldsmith's Op-Ed and had planned to mention it with a comment on the preceding post. I thank Mary for her post.
I recently read Robert J. Reinstein's "Slavery, Executive Power and International Law: The Haitian Revolution and American Constitutionalism" that focuses on Presidents Washington, Adams and Jefferson, dealing with foreign policy in the beginning decades of America. The Supremacy Clause of the Constitution is at the center of this paper, focusing on the "law of nations" portion. Legal arguments were involved, some being questionable. Did the Framers/Ratifiers understand the executive power over foreign policy as was developed so soon after the Constitution was adopted? Yes, there were complexities back then, including how to address Haiti, a former slave colony that revolted and declared independence. With the Constitution's slavery provisions that avoided the use of the words "slave" or "slavery," how might the new American Republic respond? I won't "spoil" how it all turned out, but my point is that the complexities of war, foreign policy go back to the beginnings. Much has been written about how from the beginning the power of the executive has increased, perhaps well beyond what originalists might claim the Constitution provided.
Jack Goldsmith's Op-Ed and Mary's post do not go back to Washington, Adams and Jefferson. But what they did as executives has been built upon over the years as war, foreign policy have gotten more complex, to what we have today. Jack Goldsmith made his "bones" serving George W. Bush and cleaning up after YOO know who. President Obama has to a great extent continued the Bush policy (if you can call it a policy). History demonstrates that virtually no President willing gives up power, even if not specified in the Constitution as originalism would interpret/construe it. Consider the GOP challenges to Obama, including the proposed closing of Gitmo. The GOP is the political party of national defense whereas the Democrats had been considered weak on defense. But Obama has been tough and the GOP doesn't like it, so the political response of the GOP is that Obama is stepping on the Constitution. But that's what Bush/Cheney did for eight (8) years and it was okay.
Hopefully Jack Goldsmith's Op-Ed and Mary's post will get us to focus more on the issues of war, foreign policy than the political "gotcha" game.
I applaud the ACLU for pursuing the issues of drone killings of Americans overseas. If their cases go forward, perhaps we may get more transparency.
By the Bybee [no, I have not forgotten him and YOO], Reinstein's paper is available at:
It is 118 pages in length, double-spaced, and provides a great deal of information on Haiti and the "law of nations."
Kevin, thanks for weighing in. The work you and others do is of course important. What I had in mind by "distraction" is a point that has been made about the post-9/11 era: that law set the boundaries of discussion, so that legal answers became the answers -- vacuuming out of the decisional process questions of morality, politics, diplomacy, etc. This point is made in different ways in David Kennedy, Of War and Law, Jack Goldsmith, Terror Presidency. It's not that law is irrelevant. It's that law does too much work in our policies on torture, targetted killing, etc.
Goldsmith's call for a new framework statute is useful -- but won't undo the structural changes in American war politics since the Cold War and Vietnam. It is those changes that have eased the American people out deep engagement with what their political leaders are doing. Getting the American people more deeply engaged is ultimately the only way their members of Congress will act as a more effective check on presidential unilateralism.
This issue is discussed in my book War Time. The more detailed history of how we've gotten to where we are is the focus of the next book.
We have reentered an era of low intensity conflict police actions, essentially hunting down pirates and brigands renamed terrorists in criminal or failed states. This is nothing new. The United States military has been employed in these actions on and off for over two centuries.
The idea that we can fight these wars long distance with drones and computers and keep them antiseptic is wishful thinking. Politicians would prefer this because it keeps flag draped caskets from flying home. However, you cannot defeat irregular forces in this way. Since Obama shifted to a drone campaign in Pakistan, al Qaeda has spread across North Africa and sacked our embassy annex in Libya while a drone was flying overhead watching helplessly.
Instead, these wars are fought and won by special ops and marine forces in tandem with local militaries.
Fighting wars is why we hire presidents. Article II grants the president plenary power as CiC to make operational military decisions during wartime.
Article I grants Congress the powers to declare offensive wars, fund them and establish rules of discipline like the UCMJ.
Congress has traditionally reserved declarations of war for nation states. The AQ AUMF was an exception based upon the magnitude of the 9/11 attack and will cover any multitude of operations in the future.
Congress does not have any CiC powers under Article I and Congress generally only tries to seize these when controlled by Democrats and a Republican is in the White House. The Democrat and then divide Congress has given Obama nearly free reign.
The courts have no role whatsoever setting military policy. The courts have since backed off from the awful precedent established by Boumediene, perhaps realizing they have no real competence to make decisions about wartime enemy captures.
In sum, pay attention when you cast a ballot for president because he or she will be setting our war policy.
I appreciate the discussion but do wonder -- especially w/o modern communications and media -- if there was as much of a shift as perhaps suggested.
Shag's reading leads me to mention "The Slave Trade and the Origins of International Human Rights Law" by Jenny S. Martinez.
Our yodeler makes an astute observation:
"In sum, pay attention when you cast a ballot for president because he or she will be setting our war policy."
Alas, not enough voters paid attention in 2004 and reelected Bush/Cheney. (WMDs?) I assume that the detailed history Mary plans for her new book will include the National Security Strategy of 2002 that included preemptive action that served as a foundation for YOO know who (whom?) that has extended into the Obama Administration's executive powers portfolio.
Professor Dudziak's post is right on the money. We focus too much on whether our war policies are properly "papered over" by law, to the exclusion of whether they are wise, moral, or even helpful to national security.
Proposals for a new "framework statute" are meaningless in the absence of true debate. At most, the statute would provide a more appealing veneer of legality on a subject that few care about. Of course it's important whether our war policies comply with law, but can't we do better than that?
We are reaping the consequences of a civil-military gap that discourages civilians from engaging on issues of national security. If you tell civilians they have not earned the right to speak up on military matters because they have not served, eventually they stop engaging. The all-volunteer force, and the way we use it to stifle dissent, has broken our civil-military relations.
A law professor, former Air Force officer, and author of "A More Perfect Military: How the Constitution Can Make Our Military Stronger"
3578 rentPProf. Mazur's closing paragraph is a reminder that Ike's warnings of the military/industrial complex as he departed office in 1961 were not heeded.
As a combat arms veteran from a military family with at least four generations of service, I can second Professor Mazur's observations that our nation is developing a distinct military caste which is becoming increasingly estranged from civilian society at large and in particular from a civilian political class who does not serve, rarely knows anyone who serves and often holds the military in barely concealed contempt.
Sandy offers this review of A More Perfect Military: http://www.texaslrev.com/wp-content/uploads/Levinson-TLR-Dicta.pdf
However, I have not noticed a reticence by the civilian political class "from engaging on issues of national security" with the military.
Militarily, the 2007 Congress was more than willing to oppose Gen. Petreaus' Iraq surge plan in favor of surrendering Iraq to al Qeada and President Obama gutted the Afghan surge plan offered to him.
Socially, the President has recently ordered the services to allow homosexuals to serve openly and women to serve in combat arms positions for which almost all of them are unqualified.
Given this backdrop, I am more concerned about a military caste - which is generally more educated, competent and popular with the people than the political class placed in authority above them - deciding one day to launch a coup de tat because of a lack of reticence by the political class.
Will our future look something like the republic in Heinlein's Starship Troopers?
"The courts have no role whatsoever setting military policy."
Not even in applying the UMCJ or in holding us to treaties? Art. III expressly contemplates the judiciary having a role in the latter: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority"
"I am more concerned about a military caste - which is generally more educated, competent and popular with the people than the political class placed in authority above them - deciding one day to launch a coup de tat because of a lack of reticence by the political class"
So we should let the military do whatever it wants because you're worried if we don't they might take over and do whatever they want?
Our yodeler minored in economics in college, he has said, to support his expertise in economics and challenges of Nobelist Paul Krugman, although his day job is as a DUI legal specialist in a little mountain community in the Mile High State (of mind). Now he professes to have military expertise based upon the history of his family in the military. He doesn't reveal the extent of the military experiences of him and his prior generations to give us an idea of his special qualifications on military strategy. For all we know, our yodeler was a grunt in the military, not that there is anything wrong with that. But consider the leaps our yodeler makes with this:
"Militarily, the 2007 Congress was more than willing to oppose Gen. Petreaus' Iraq surge plan in favor of surrendering Iraq to al Qeada and President Obama gutted the Afghan surge plan offered to him."
The 2007 Congress was controlled by the Democrats. Our yodeler seems to blame the Democrats for the Iraqi War. There are serious questions about the success of the surge and what it actually accomplished, besides killing off or getting certain Iraqis to leave their communities and even Iraq for survival because of the Iraqi leaders' religious biases.
Our yodeler seems to claim that Petraeus walks on water when it comes to surges. Well, the surge in Afghanistan was different than in Iraq. Obama bought into it but the situation in Afghanistan was substantially different than in Iraq. The history of Afghanistan with invasions by several powerful nations substantially differs from Iraq's history. Would Petraeus' Afghan surge have worked? I wouldn't rely upon our yodeler's military expertise. Some, many, say it was a mistake.
Perhaps our yodeler doesn't buy into Ike's concerns with the military/industrial complex. Consider the history of that complex since 1961 and especially the Halliburton Happy Hours during the Bush/Cheney days.
Perhaps our yodeler missed his true casting call.
BD: "The courts have no role whatsoever setting military policy."
Mr. W: Not even in applying the UMCJ or in holding us to treaties?
Congress sets the policy for military discipline by enacting and amending the UCMJ. The courts merely enforce the UCMJ.
Likewise, treaties are the policy. The courts only enforce and do not enter in treaties. Additionally, presidents and Congress can and have repeatedly withdrawn from treaties when they deem them against current national interests. The courts can only enforce treaties the elected branches still recognize.
BD: "I am more concerned about a military caste - which is generally more educated, competent and popular with the people than the political class placed in authority above them - deciding one day to launch a coup de tat because of a lack of reticence by the political class"
Mr. W: So we should let the military do whatever it wants because you're worried if we don't they might take over and do whatever they want?
I figured Shag would beat you to this straw man.
The problem is not the concept of civilian command of the military.
The problem is the formation of a military caste and a civilian ruling class and their subsequent estrangement. This is something we as a country need to deal with before estrangement leads to something worse.
If treaties and the UMCJ are the law of the land, then Courts should enforce them, no?
"The problem is the formation of a military caste and a civilian ruling class and their subsequent estrangement"
Ok, but didn't you suggest that a 'lack of reticence' on the part of the civilian class was what you feared would trigger the horrible? If you dress something up in straw, plaid and overalls don't be upset when someone calls it a strawman....
I am interested in what you think should be done about this problem. I doubt a draft would fit well with your libertarian leanings.
I have been thinking about this problem for a long time and I am unsure whether it has a libertarian solution.
The Germans dealt with the problem of a military caste by shrinking their military down to the size of a glorified national police force and compelling those who those who would otherwise not join the military to do so through a draft.
Libertarians would have no problem with shrinking the US military down to a glorified militia, which is where I differ from the libertarians. However, most Americans do and should oppose drafts unless we are facing an existential threat. So long as those of us from military families keep serving and those from the civilian ruling class avoid it like the plague, I am unsure how we bridge that divide.
The civilian ruling class does have a libertarian solution. Shrink the size of government down to its pre-progressive size and elect people from outside the current ruling class who represent your values. Most Americans would have supported military requests for troops and opposed nonsense like putting women into combat arms, removing the provocations to the military.
I agree with you it could be a problem. I also agree with you that drafts are going to be unpopular and that shrinking our military down to a glorified police force is not going to happen and probably should not. Perhaps if we involved our military in less action it would not appeal to only the most military minded families.
I have to question your claim that the military class is generally more educated than civilian leaders. Do you have any citation for that? The average politician is a lawyer with a JD, that's seven years of college. I don't think the average member of the military class can match that.
"The civilian ruling class does have a libertarian solution. Shrink the size of government down to its pre-progressive size"
If anything our government was more elitist in the days of the Founding than it is now.
"Most Americans would have supported military requests for troops and opposed nonsense like putting women into combat arms"
I doubt that seriously. The public opposed the surge for example, and would like us to get out of Afghanistan and Iraq faster than we are and were. Polls also show majorities supporting women in combat.
"By a margin of two-to-one, Americans support allowing women to serve in combat units, a policy change announced last week by outgoing Defense Secretary Leon Panetta. Sixty-six percent of Americans favor the new policy, up from 53 percent when approval was last measured in July 2009. Thirty percent of Americans now disapprove."
Mr. W: I have to question your claim that the military class is generally more educated than civilian leaders. Do you have any citation for that? The average politician is a lawyer with a JD, that's seven years of college. I don't think the average member of the military class can match that.
I do not equate education with the number of years you spend in school and do not think much of law degrees in general.
In Germany, law is simply a five year undergraduate course.
I do not think that a law degree qualifies you to do much of anything except regurgitate basic legal theory. You are not particularly qualified to set policy and you learn to practice law afterwards.
As for the military:
In 2004, 92.1 percent of active-duty officer accessions held baccalaureate degrees or higher. From 2000 to 2005, between 10 percent and 17 percent of active-duty officer accessions held advanced degrees, and between 35 percent and 45 percent of the active-duty officer corps held advanced degrees. This indicates that officers continued their education during the course of their military service.
These are generally policy degrees like foreign affairs, political science and governance to prepare officers for running foreign countries. Moreover, officers go through extensive military training to run the equivalent of massive international companies.
The political class does not compare.
"B.D.: Most Americans would have supported military requests for troops and opposed nonsense like putting women into combat arms"
Mr. W: "By a margin of two-to-one, Americans support allowing women to serve in combat units, a policy change announced last week by outgoing Defense Secretary Leon Panetta. Sixty-six percent of Americans favor the new policy, up from 53 percent when approval was last measured in July 2009. Thirty percent of Americans now disapprove."
"Serve in combat units" is intentionally vague. A Stars and Stripes reporter can and do serve with combat units.
Ask instead whether women should serve in the infantry, armor and artillery; and more importantly whether the services should lower their physical standards to accomplish this.
1. You're just citing numbers for officers, which are only anywhere from 10-20% of all active duty personnel (depending on the branch).
2. Even if we stick to officers I don't think they match the educational attainment of Congresspersons
"As has been true in recent Congresses, the vast majority of Members (92% of House Members
and 99% of Senators) at the beginning of the 112th Congress held bachelor’s degrees.13 The CQ
Roll Call Member Profiles indicate that 25 Members of the House and 1 Senator have no
educational degree beyond a high school diploma.14 Seven Members of the House, but no
Senators, have associate’s degrees as their highest degree, and one House Member has an LPN
(nursing) degree. Eighty-three Members of the House and 16 Senators earned a master’s degree
as their highest educational degree. Law degrees are held by 167 Members of the House (38% of
the total House) and 55 Senators (55% of the total Senate). Of the Members holding a law degree,
four (three House Members and one Senator) also hold an LLM (Master of Laws) degree. Eighteen Representatives (but no Senators) have doctoral (Ph.D.) degrees, and 20 Members of the House and 4 Senators have a medical degree.15"
The NYTimes Book Review includes Andrew Bacevich's "Avoiding Defeat" reviews of "The Endgame - The Inside Story of the Struggle for Iraq, from George W. Bush to Barack Obama" (by Michael R. Gordon and Bernard E. Trainor) and "My Share of the Task - A Memoir" (by Stanley McChrystal), that includes commentary on the "surge." (A link is provided at the Legal History Blog.) Here's a taste:
"Future historians may well classify the surge as a myth concocted to perpetuate a fraud. The myh centers on the claim that a strategy devised in Washington and implemented by a brilliant general saved the day. The fraud is that a 20-year millitary effort to determine the fate of Iraq yielded something approximating a positive outcome."
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