Losing the Law Wars

by John McGinnis

I was very interested to read the New York Times essay on Jack Goldsmith, recently referenced on this blog by Roger Alford. Oddly enough, a week ago, I posted a draft essay, Losing the Law Wars: The Bush Administration’s Strategic Errors, that made some criticisms of the Bush administration’s policies from the outside similar to his from the inside. The link for those interested is available here.

My bottom line is that the Bush Administration’s excessive ideological interest in expanding executive power prevented it from going to Congress to get endorsement of its often sensible policies on terrorism and war. In my view, the Administration could have succeeded in getting congressional endorsement for reasonable policies on detention, interrogation and war crimes trials of enemy combatants as well as surveillance of communications made by suspected terrorists abroad. Such endorsements would have avoided Supreme Court defeats and would have showed the world that many of the Bush administration policies are the considered judgments of the majority of the representatives of the American people.

The larger lesson is this: in any long struggle—and the war against radical Islamic terrorist organizations is likely to be a long one—an administration must gain and show to the outside world it has gained the broad support of the American people. To be sure, in emergencies the President can often act unilaterally, but in the long run there is no substitute for obtaining broader, bipartisan support. Gaining that support improves the content of those policies and gives them the durability to survive the vicissitudes of political and military fortune. And while I am skeptical that the President has any obligation to abide by customary international law, departures from treaties must generally be validated by Congress, except where they intrude on the relatively narrow inherent powers of the President in non-emergency situations.

It may not be surprising that Jack and I have similar views. I was the Deputy Assistant in the Office of Legal Counsel from 1987-1991 primarily responsible for national security matters. I am grateful, however, that I was not tested by the terrible events faced by my successors. My reservations as an academic concerning the Bush Administration’s legal performance should not be interpreted as the claim that I would have done any better in the heat of battle.

http://opiniojuris.org/2007/09/11/losing-the-law-wars/

10 Responses

  1. The failure of the Bush administration in (mis)managing the legal process and garnering public support for its policies is because, from the very beginning, it consciously chose to use the war on terror for its own political and ideological ends.

    It has also chosen to ignore the law, viewing it more as a stumbling block or hindrance to the war on terror.

    Ignoring the rule of law has caused us to abandon the moral high ground, thus doing incalculable damage to American interests for a very long time.

    This is why the war has been incompetently run in the first place — ideology, caprice, and politics have the driver’s seat.

    In addition, much of the administration’s pursued policies is strikingly reminiscent of ideological fascism — the conviction that you know better than your political opponents what is good for the nation, the glorification of violence, the espousing of patriotism for political ends, increased security measures, as the blatant disregard for tradition or law. Another characteristic is the exaltation of force to overturn the old order.

    Unfortunately, despite all the ideological strutting and attempted recreating or reshaping of history by Podhoretz, Yoo, and other neoconservatives, the incompetence displayed by the administration in almost all fields is giving opponents strength to push back, both on the rule of law and in the political arena.

    I recommend Mussolini’s Italy: Life Under the Fascist Dictatorship 1915-1945 by R.J.B. Bosworth to uncover striking similarities between a regime based on spin and divorced from reality and our current administration.

  2. blockquote>

    Of course, the scandals at Abu Ghrab and the more general lack of success in Iraq could not have been predicted.

    The above is from your abstract. Given the letter of Alberto Mora, William Taft IV and Colin Powell’s analysis as regards the Geneva Conventions and the warnings from so many quarters about going into Iraq, I find it hard to state today that Abu Ghraib or the general lack of success in Iraq could not have been predicted. Both were predicted at the time.

    Also, I do have sympathy for persons in the heat of battle at OLC, but too much hubris about the lack of applicability of international law and the ability to interpret it as we please seems to have been their downfall (treaty and custom). Those were mistakes that did not have to be made and people counseled against those mistaked at the time.

    Finally, your skepticism about the President being bound by customary international law John is of course your right. I do think it is so very settled that the United States is bound by customary international as is every nation. A new generation coming to internatioanl law may wish to assert the power to do things in violation of those rules, but that does not change the fact that the rules are there.

    As for the democratic deficit, international law was at work long before democracy emerged and – if there are states – I imagine long after if it should disappear. Democratic deficit to me is a straw man argument as is calling customary international “raw” international law.

    Best,

    Ben

    Best,

    Ben

  3. I am afraid that Prof. McGinnis is suffering from the same lack of political-legal foresight that he attributes to the Bush Administration. He argues — like others in hindsight — that the Bush Administration would have fared better politically and constitutionally if they had sought and acquired Congressional approval for their actions in the war against terrorism. However, this war against terrorism is an international conflict that also required the Bush Administration to comply with international law, but Prof. McGinnis would interpret the Constitution to allow Congress to violate treaties and would probably interpret the Constitution to allow the president to violate the U.S’ customary international legal obligations in certain cases. As I have previously argued, neither the president or Congress can violate U.S.treaties or the U.S.’ customary international legal obligations as a matter of constitutional law. See Martin, The Constitution as Treaty (Cambridge Univ. Press 2007). Furthermore, Prof. McGinnis’ argument falls short in light of the fact that Congress and the President often need to be checked by the international community when the U.S. violates international law or attempts to undermine international legal institutions — especially during a war in which Congress is failing to exercise oversight of a President who has claimed a historically unprecedented reach of constitutional authority as Commander in Chief — because other states engaged or wishing to engage in this war who comply with their international legal obligations will be forced to criticize the U.S.’ international legal violations or to not participate in U.S. efforts. Recall, e.g., some states’ refusals to participate in the Iraq War and the bilateral article 98 agreements.

    Francisco Forrest Martin

  4. When it came to the war on terror, this administration had not only the support of the American people, but also of the world. And by the war on terror I mean the legitimate one, that against the Taliban, in Afghanistan.

    This administration lost it’s support when it invaded Iraq without any provocation. That is not the “war on terror” As a matter of fact it seems to be the “war for terror”, since it created more terrorists.

  5. John:

    My bottom line is that the Bush Administration’s excessive ideological interest in expanding executive power prevented it from going to Congress to get endorsement of its often sensible policies on terrorism and war. In my view, the Administration could have succeeded in getting congressional endorsement for reasonable policies on detention, interrogation and war crimes trials of enemy combatants as well as surveillance of communications made by suspected terrorists abroad. Such endorsements would have avoided Supreme Court defeats…

    How do you reach this conclusion?

    For example, the Supreme Court rewrote Congress’ habeas corpus statute to extend habeas review to foreign prisoners of war for the first time in the centuries long history of the Great Writ in Britain and the US, ignored the DTA and has just granted cert for a claim that the MCA is unconstitutional. It appears to me that the five of the Supremes have little more respect for precedent and Congress than they do the Executive.

    …and would have showed the world that many of the Bush administration policies are the considered judgments of the majority of the representatives of the American people.

    Exactly why should the President give a second thought what foreigners think about the operation of our government? The President swore an oath to uphold the Constitution and defend this country, not to cater to world public opinion…

    The larger lesson is this: in any long struggle—and the war against radical Islamic terrorist organizations is likely to be a long one—an administration must gain and show to the outside world it has gained the broad support of the American people.

    …or the opinion of the domestic anti war left.

    In any case, how exactly does going to Congress illustrate the broad support of the American people for intelligence gathering against enemy telecommunications or for declining to extend constitutional rights (including habeas corpus) to foreign enemy combatants for the first time in US history? The President is the only one who was elected by all the People. Members of Congress are parochial and represent only a small district or state.

    I do not recall Lincoln or FDR often going to Congress for ratification of their exercise of Article II powers in order to cater to public opinion. They acted and then ran for reelection to be returned to office like Mr. Bush.

    To be sure, in emergencies the President can often act unilaterally, but in the long run there is no substitute for obtaining broader, bipartisan support. Gaining that support improves the content of those policies and gives them the durability to survive the vicissitudes of political and military fortune.

    I often wonder if bipartisanship during war any longer possible. There has always been a very strong isolationist tendency in the United States. The post Vietnam Dems have taken the isolationist mantle from the GOP and a majority of them will oppose any ground war or will soon bail in their support after the casualties start.

    Today’s toxic partisan environment reminds me of the face off between Lincoln and the Dem Copperheads during the Civil War. The Copperheads supported withdrawing from the South and surrendering the Civil War. Lincoln did not waste time trying to form a bipartisan coalition with the Copperheads to curry pubic opinion. Rather, Lincoln endured their barbs and opposition to prosecute the war and then ran for reelection against them.

    I would suggest that this is the only course open to Mr. Bush. Neither Mr. Bush nor Mr. Lincoln enjoyed the bipartisan support of FDR during WWII. A majority of the Dem Caucus in Congress has opposed nearly every post 9/11 war measure to come before Congress. They are now calling General Petreus a liar during the past two days hearings. Does anyone really contend that Mr. Bush or anyone else can persuade these modern day Copperheads to join the war effort?

    And while I am skeptical that the President has any obligation to abide by customary international law, departures from treaties must generally be validated by Congress, except where they intrude on the relatively narrow inherent powers of the President in non-emergency situations.

    Goldwater lost this argument in the Courts when Carter terminated the Panama Canal Treaty.



  6. This administration lost it’s support when it invaded Iraq without any provocation.

    In which alternate world does the assault of our aircraft in violation of a ceasefire not count as provocation?

  7. Weapons of mass destruction, regime change, bring democracy to the Middle Esat, and now aussalt on our aircraft. (by the way, that is new to me, so you get extra points :o)

    Cant people just stick to one argument???!!!

  8. Weapons of mass destruction, regime change, bring democracy to the Middle Esat, and now aussalt on our aircraft. (by the way, that is new to me, so you get extra points :o)

    Cant people just stick to one argument???!!!

    An individual person can, a collection of individuals whose only common point of agreement is the justification of the war cannot.



    Today’s toxic partisan environment reminds me of the face off between Lincoln and the Dem Copperheads during the Civil War. The Copperheads supported withdrawing from the South and surrendering the Civil War. Lincoln did not waste time trying to form a bipartisan coalition with the Copperheads to curry pubic opinion. Rather, Lincoln endured their barbs and opposition to prosecute the war and then ran for reelection against them.

    I would suggest that this is the only course open to Mr. Bush. Neither Mr. Bush nor Mr. Lincoln enjoyed the bipartisan support of FDR during WWII. A majority of the Dem Caucus in Congress has opposed nearly every post 9/11 war measure to come before Congress. They are now calling General Petreus a liar during the past two days hearings. Does anyone really contend that Mr. Bush or anyone else can persuade these modern day Copperheads to join the war effort?

    I do find the analogy rather apt. Neocons and Neocopperheads?

  9. To those that are complaining about the treatment against Petreus, should first remember the treatmen that Senator Max Cleland and Senator John Kerry recieved from the hate-mongers.So, as republicans used to say: “Stop whining and get over it”

    As for you Matthew, here is the war authorization. The reason why we decided to go to war was because of weapons of mass destruction. You can continue to try to find a new justification all you want to, and continue to move the chain when the facts don’t suit you. But please don’t complain about alternate worlds.



  10. As for you Matthew, here is the war authorization. The reason why we decided to go to war was because of weapons of mass destruction. You can continue to try to find a new justification all you want to, and continue to move the chain when the facts don’t suit you. But please don’t complain about alternate worlds.

    It does address one of the arguments raised in opposition to the authorization:



    The Charter, in Article 51, outlines the terms under which a Member State of the United Nations may use force in self-defense. That Article acknowledges a nation’s “inherent right of individual or collective self-defense If an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” [Emphasis added.] The Charter does not allow military force to be used absent an armed attack having occurred.

    …and here’s the argument itself:

    I take issue with those who call any action in Iraq “a preemptive strike”. It is surely not. For Saddam, the gulf war has never ended. In the past two years, forces at his command have fired over 1,600 times at American and British planes patrolling the no-fly zone Saddam agreed to at the end of the gulf war. They’ve fired at our pilots more than 60 times since September 18th, the day Saddam promised to “allow the return of United Nations inspectors without conditions.”

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