Balkinization  

Tuesday, September 03, 2013

Saving the Obama Presidency

Sandy Levinson

For reasons known only to himself, President Obama has decided to risk his presidency on the outcome of the congressional vote.  As I see it, the best way to assure the destruction of his second term is to authorize a strike that makes almost literally no sense in terms of the public rationales that have been offered.  There is literally no measure of what might count as "success," other than deterring additional use of chemical weapons.  Given that there is no evidence that Assad ordered the use of those weapons in the first place, one might well imagine that he will make some efforts to make sure they are not used again.  (There is something particularly indecent about the Obama Administration claiming that Commanders-in-Chief must be held responsible per se, a reversion, it appears to the Yamashita doctrine right after World War II.  This, of course, is the Administration that has resolutely refused to hold anyone from the Bush Administration responsible for what is at least equally banned by international and domestic law, i.e., torture, or, for that matter, to pursue members of the Bush I Administration for their toleration of Saddam Hussein's use of poison gas against Iran and then Iraqis. ) 

It is ominous that Obama's chief domestic support is coming from John ("I never met a war I didn't want to get into") McCain.  We all live with (and are victimized by) analogies.  I keep thinking of Vietnam, in which thousands of Americans and hundreds of thousands of Vietnamese lost their lives in order to vindicate American "credibility" and fight against the perception that we were a "paper tiger."  And, of course, I keep thinking of The Sleepwalkers and the insouciance with which Europe slid into a truly catastrophic war with no redeeming features.  Perhaps a "surgical strike," though unlikely to be effective, will not in fact provoke any countermeasures by Syria or Iranian proxies, and we'll look back at this as a relative non-event and I can legitimately be dismissed as an hysteric who failed to rally 'round the presidential flag.  But, of course, maybe not.....

So it's overdetermined that I hope strongly that a coalition of Tea Party Republicans and liberal Democrats, both responding to their constituents who are properly dubious about American intervention, will refuse authorization.

That, of course, raises the question of whether the President will claim the authority to act regardless of what Congress says.  Steve Griffin's excellent post indicates why this may be a true "constitutional moment," for if Obama were to defy a vote of non-authorization, I think there would certainly be (reasonable) calls for impeachment.  And this time no one could claim that the charges don't rise to the level of the most fundamental "high crime and misdemeanor."  It may be, as Steve suggests in his book, that we have accepted as a "common-law/constitutional-law" reality of our political system, based on over a half-century of practice by Presidents beginning with Truman and going through Obama (see Libya)  than Presidents do indeed have the legal right (in part because they have the military capacity) to engage in unilateral "war-like acts" so long, for example, as they don't involve the fabled "boots on the ground."  Though, of course, President George HW Bush (the so-called "good Bush") publicly asserted the right to go to war over Kuwait regardless of what Congress did, which obviously involved thousands upon thousands "boots on the ground."  I feel that I should revive my series of dispatches of "reports from a constitutional dictatorship," because that is really what we are talking about.

A last comment:  If we lived in a parliamentary system (which we don't), then the proper response to a "no" vote in Congress would be the resignations of Obama, John Boehner (who is supporting the resolution), and Nancy Pelosi (ditto).  One wonders if any of the "yes" votes will be influenced by the realization that Obama will be President until Jan. 20, 2017.  If so, that is just another illustration of our defective Constitution, which encourages support of "the only President we've got" because there is no way to get rid of him/her prior to the next election (save, of course, for impeachment).  .

Comments:

So should we expect David Cameron's resignation shortly?
 

"Given that there is no evidence that Assad ordered the use of those weapons in the first place"

Do you have some inside knowledge here to challenge Kerry's statements?

"has resolutely refused to hold anyone from the Bush Administration responsible"

You mean not for what just happened, but what happened years ago with doubt on making the case, so much in this very blog merely having his law school investigate Yoo was something most contributors were wary about?

"deterring additional use of chemical weapons"

I don't think bombing here is likely that helpful, but this is not a trivial thing.

I do think is an important moment including regarding the war power but don't think -- rightly or wrongly -- it is the moment to "save" his presidency. I also wonder the answer to Paul Winke's comment.
 

Sandy:

"So it's overdetermined that I hope strongly that a coalition of Tea Party Republicans and liberal Democrats, both responding to their constituents who are properly dubious about American intervention, will refuse authorization."

For once, I think you will get your wish.

That, of course, raises the question of whether the President will claim the authority to act regardless of what Congress says. Steve Griffin's excellent post indicates why this may be a true "constitutional moment," for if Obama were to defy a vote of non-authorization, I think there would certainly be (reasonable) calls for impeachment.

It is one thing to defend the country or even its allies without an AUMF/declaration of war because the state of war already exists. I can see no constitutionally valid rationale for starting a war without a AUMF/declaration of war and starting a war in the face of a congressional denial would be indefensible.

Obama has offered a display of ongoing foreign policy ineptitude that makes Jimmy Carter look like an decisive statesman.
 

Joe: "Do you have some inside knowledge here to challenge Kerry's statements?"

Do you have an independent proof that Kerry's not lying to us?

*I* remember the last time that the US government talked about WMD's. I also remember that they got away with it.
 

Sandy: "For reasons known only to himself, President Obama has decided to risk his presidency on the outcome of the congressional vote."

I disagree - he might in the future risk his presidency, but not yet.

Right now, if Congress turns him down, then he has a face-saving way out of a tight situation. If they support him, they've signed on to his war, *whatever* it is, up until the point of major US casualties.


 

I'm not an expert on the British parliamentary system. I know that in some systems, votes are treated as the equivalent of "confidence" (and "no-confidence") triggering resignation upon losing. I'm not aware that Cameron pulled out all stops, perhaps because he expected to win without doing so. Ironically, he went down on an anodyne resolution, rather than the "real thing" authorizing British military strikes, though, presumably, the vote for the former was treated as a proxy for the latter. Cameron would be out in a second, of course, if the Liberal Democrats wished to reverse alliances and join with Labour, but I assume they like the present arrangement.

In any event, I think that a British Prime Minister would resign had he said the kinds of things that Obama has been saying about the necessity of action and putting British credibility on the line.

I wonder if Kerry will be tempted to resign, since he has really been the cheerleader for action. (I presume not, since, save for the presidency, this is the job he's always wanted).


 

Yes, we are having a debate, of sorts Maureen Dowd provides a rowdy review of the debate so far in her NYTimes column today.

Jack Balkin's view on the need for a UN Security Council vote of approval seems in line with that of his fellow Yale Law School Profs. Oona A. Hathaway and Scott Shapiro in their NYTimes Op-Ed today "On Syria, a U.N. Vote Isn't Optional." Here's their penultimate [still my favorite word] paragraph:

"For all their wisdom, the United Nations’ founders showed incredible lack of foresight in freezing in place a system in which five nations hold permanent veto power in the Security Council. Unfortunately, that’s unlikely to change, despite almost uniform consensus that the configuration makes little sense. The question is whether we can manage to live with these shortcomings. If not, we have to think very hard about what the alternative might be — and recognize that it could be far, far worse."

This brings to mind the shortcomings of the Articles of Confederation that led to the Constitution.

Hathaway and Shapiro point to how much safer the world has been since 1945, attributable to the UN Security Council. Going back to 1945 and coming forward identifying subsequent events, how much safer has it actually been? Yes, things could have been worse.

Regarding the Security Council veto, Jack seems to suggest that it provides America cover.

Let the debate continue. But consider the strange bedfellowship between our SALADISTA and Sandy having a tea party. Of course our SALADISTA in going back to Jimmy Carter skips over the foreign policy fiasco of Bush/Cheney that heavily contributed to the Middle East quagmire of today. That aircraft carrier banner should have read:

MISHIGAS ACCOMPLISHED!
 

Shag:

Bush had a clear strategy (even if you disageed with it) and he obtained two bipartisan AUMFs from Congress and established an international alliance to implement it.

Obama drew an unplanned line in the sand he had no intention of enforcing to look tough during a TV interview.

Obama did nothing to enforce his line after the first chem attack and indeed tried to deny the attack even took place to avoid making a decision. The result was the slaughter of a second larger attack. With the television filled with images of dying civilians, Syria forced Obama's hand.

Obama had never laid the groundwork for an alliance to militarily enforce his line. When he tried to do so at the last minute, the Brits bailed and the Russians bribed the Cypriots to deny airbase rights. Now, the US stands nearly alone.

After blowing off Congress and ruling by decree since the voters fired the Democrat House in 2005, Obama crawled back to Congress to get political cover for a unilateral strike without offering a plan and while simultaneously aggrivating Congress by telling them he did not require their approval.

Utter inemptitude.
 

For some reason (or lack thereof?) our SALADISTA failed to reference in his facile retort the Bush/Cheney "slam dunk" that got Congress' attention/approval and the world's attention through Powell before the UN. Where were those WMDs? What was Iraq's role in 9/11? Actually, how clear was the Bush/Cheney strategy? There were many "OOPS" moments before the surge, and even the surge did not resolve matters. Bush/Cheney were the poster boys for our SALADISTA's "Utter inemptitude [sic and sicker]."
 

Bush had a clear strategy

lol

Yeah, he strategized us right into a very expensive mess.
 

Does anyone know why Cameron hasn't resigned yet? Doesn't he know that Sandy's credibility is on the line?
 

Do you have an independent proof that Kerry's not lying to us?

This seems like saying "look a bird."

The statement was that there was "no evidence" -- I don't know how Prof. Levinson is able to so bluntly say this unless he has inside knowledge.

Not having looked at the evidence offered, including some only available to members of Congress, I am not fully able to answer your question. At some point, it is not something I'd be able to answer in full detail since at least some things are left on trust.

This might go toward consenting to military force, but I already noted that I'm dubious about that.
 

If there were "smoking gun" evidence that Assad ordered the use of chemical weapons, it defies belief that we wouldn't be trumpeting it. Did he wink and nod and suggest that he wouldn't be upset if chemical weapons were used? Who knows? The Bush Administration for years adopted a "bad apples" story to escape any higher-up from being held liable for war crimes, and, of course, Obama has completely acquiesced in that story. So why aren't the standards we apply to our own government applicable to the admittedly far worse(I'm not suggesting any moral equivalence) government of Syria?

As for Bartbuster's completely snarky comment, it simply illustrates why I'd love to ban him from this list. Not for a single instant has he/she made a single positive contribution to any of our discussions. Just do away!


 

This comment has been removed by the author.
 

Actually, the very first response to your post was just as snarky as mine. It would probably help your credibility if the entire context of your post was not so easily refuted.

Balkin seems to have a much more intelligent assessment of the situation.
 

What nobody seems to have considered is the no-decision possibility. If, say, Bernie Sanders, begins a filibuster, then we could either do nothing or make cloture easier. After all, there wasn't any cloture until there was a filibuster against WWI.
 

Bart: "Bush had a clear strategy (even if you disageed with it) and he obtained two bipartisan AUMFs from Congress and established an international alliance to implement it."

He did. Strategy 1 was to let OBL go free (and a whole bunch of Al Qaida), while running a column into Kabul, and declaring victory. Like the Soviets, and the British (several times).

Strategy 2 was to run a column into Baghdad, pull down a statue, and declare victory. IIRC, both Powell and Cheney pointed out in the 90's that the reason that Bush I hadn't done just that was because there was no plausible step 2.

As for the 'international coalition' of blah blah blah, that came down to the USA, the English poodle, and a whole bunch of platoons sent to sit in a safe place and raise a flag.



 

Kerry and individual senators have spoke of evidence that Syria (I take this to mean Assad, since the country isn't a democracy and all) used chemical weapons and the AUMFs offered by Senate and House Dems speaks of such "findings." Kerry said it was "beyond a reasonable doubt." I take this to mean they claim some sort of "smoking gun."

Wariness about such assurances is by now quite appropriate, but it is much harder to go to the other extreme and say there is "no evidence" or whatever. And, there very well might be a reason to not fully air all the evidence, depending on the secrecy of some of the sources. But, I thought I read somewhere that the Administration did submit 'smoking gun' evidence, though I don't know if is some place for the public to examine in full.
 

Bush published a National Security Strategy in 2002 and again in 2006. Obama published a National Security Strategy in May of 2010. I don't know if he plans to publish another. I've downloaded the 2010 document (52 pages) and plan to get into it starting later today. While at the current time the situation in Syria may not involve a national security interest, perhaps it will be revealing on the use of force when national security is not involved.

Perhaps the current debate should focus on America as the world's policeman, whether that role calls for strong international support. At present, there is not strong international support on the matter of Syria. Are there too many free riders? It isn't clear to me that there has been a debate on what some perceive as this American role or that there has been a genuine debate on our National Security Strategy. If our domestic house is not in order, can we perform these international roles?
 

Frankly, one of the pathologies of our thinking is the belief that "dictators" are omniscient within their countries. Assad may have more power than any single individual in Syria, but that isn't evidence that not a sparrow falls that he isn't responsible for. Even Hitler's Germany was more pluralistic bureaucratically than we tend to think it was (which doesn't mean that he wouldn't have deserved to hang for war crimes). One of the many points of Christopher Clark's The Sleepwalkers--yes, that again--is that neither the Kaiser nor the Tsar was capable of exercising snap of a finger control over their complex countries and bureaucracies (and, especially, militaries).

Again, we bend over backwards to avoid command responsibility in this country, but are promiscuous in assigning it with regard to countries (and leaders/dictators) we don't like.

As Adrian Vermeule constantly points out in his writings on US institutions, Congress, the Supreme Court, the "presidency" etc. are "theys," not "its." There may be some variation in the degree of "they-ness," but it's always valuable to ask tough questions instead of assuming that X is in control of any and all events.
 

I respond, in a fashion, to the last comment in the next post.
 

Sandy:

I never saw the relevance of proving that Assad personally gave the order to massacre his people in holding the government and military of Syria to account. This is not a warcrime trial of Assad personally.


 

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