The Limited Upside of Congressional Support for War on Terror Policies

by Julian Ku

I wanted to briefly comment on John’s most recent post, and his very interesting essay, since it suggests an emerging consensus among legal conservatives about the Bush Administration’s war on terror legal strategies (see also Ken Anderson’s writings here). As both John and Jack Goldsmith seem to be arguing, the Administration’s problems were mostly a failure of political strategy rather than of legal analysis. Indeed, for the most part, I read Goldsmith as supporting most of the legal policies (military commissions, detentions, etc) but disagreeing with the procedure (go to Congress). By going it alone, the Administration put itself out on a limb which the Supreme Court was more than happy to chop off.

This critique resonates with me as well, although as John himself admits, hindsight is always 20-20. I think as both a legal and a political matter, it is highly hazardous to make claims that duly passed congressional legislation cannot bind the President (hazardous, but not always wrong as I argued here). Even if you think you are right about, say, exclusive Commander-in-Chief powers, you probably shouldn’t make that argument to Congress or the Courts except as a last resort.

Still, I wonder if John and Jack are overstating the importance of congressional support to the debate over the merits of the policy. I think that there would have been severe criticisms, as well as hard-nosed litigation challenging the laws, no matter what Congress did. The often successful legal challenges to the Detainee Treatment Act and the Military Commissions Act of 2006 testify to the fact that courts are not exactly impressed with congressional legitimacy. Does the fact that Congress passed the McCain Amendment make any difference to the continuing unrebutted claims in the foreign and U.S. progressive circles that the U.S. engages in torture as a matter of policy? I think not.

Indeed, even if Congress is on board, as it surely was when it approved by large majorities the use of military force against Iraq, members have a way of avoiding responsibility and shifting blame.

Moreover, while consulting with allies and the international community is indeed laudable and necessary, it is worth remembering that many such allies (and especially the international community) would have denounced all U.S. anti-terror policies, whether or not Congress approved it. Why? Because of the widely held view (overseas) that these policies violated international law. (see comments to John’s last post, for examples of these views). And litigation would have ensued with the U.S. taking pretty much the same international reputation hit.

Look, I agree completely with John and Jack that it would have been better to go to Congress, both for legal and political reasons. And I’d like to think I would have made the same arguments Jack did. But I fear both may be making the lawyer’s error of elevating procedure over substance. There are a few critics who agree with the substance of the policies, but worry about the procedural mechanisms. But there aren’t all that many of these folks (Jack, John, Ken, me?)compared to the critics who disagree on substance, whatever the procedure.

3 Responses

  1. This is funny, Julian: “Does the fact that Congress passed the McCain Amendment make any difference to the continuing unrebutted claims in the foreign and U.S. progressive circles that the U.S. engages in torture as a matter of policy? I think not.”

    Gosh, wonder why that is. It wouldn’t have anything whatsoever to do with the fact that the Bush Administration has construed the McCain Amendment and Common Article 3 to permit what those legal constraints plainly prohibit — or would it?

    By the way, as for the thrust of your post . . . of course there will be folks who will not like everything Congress enacts. I’m one of them. So are you. Have you ever met anyone who thinks that everything Congress enacts is desirable or constitutional? And of course there is a risk the Court will find that Congress overstepped constitutional limits in some cases and will therefore invalidate executive action (although far less so than when the Executive is acting unilaterally, let alone in violation of statute and treaty).

    But what are those ordinary truisms supposed to demonstrate, exactly? That Cheney was right to disregard statutory and treaty-based rules? You make it sound as if legislative compromise, public dissensus, “hard-nosed litigation,” and judicial review for constitutionality are disfavored things. Why would that be?

  2. If there has been no torture, then I ask the Bush Administration to declassify the ICRC Report on the CIA Black Sites and the interrogations. Yes, if Congress were to have acted to pass a law which permitted torture it is certain people would have fought it. Absolutely.

    I think we need to split the vision of conservatives into the movement conservatives and the reagan era conservatives. To a person I have heard nothing but dismay from the reagan era conservatives about this whole Bush push.



  3. Julian,

    I start by saying that I respect you and your work. I read but never comment here. I rarely have a visceral reaction to a blog post – or anything other than autopsy photos in a murder case. But I am shocked and alarmed by this post and especially your linked article.

    Your assertions about Clinton are valid. However, I find it tragic that you believe the C-in-C power is so “exclusive” as to be monarchical in a 17th century context. Given your relationship with John Yoo, perhaps I should not be surprised. However, you both ignore a good bit of the Constitution (its convention notes and conext, and the political theories underlying it – or at least the parts unsupportive of your views) when making your arguments.

    What about Congress’s power to “make rules for the government and regulation” of the armed forces? What about their power to “define and punish” offenses against the laws of nations? When Congress passes legislation within the ambit of its powers, I am at a loss to see how you could possibly argue the executive can ignore it as an infringement of his own. This is especially true when one considers the Take Care Clause and the fact that either the executive branch helped enact the law, or a super-majority of Congress enacted it. Your argument would be laughable if not so misguided and presented in a serious forum.

    What you argue is for a modern day dispensing power a la King James II, at least as it relates to conducting a military campaign in defense of the nation. (Surely you don’t believe the C-in-C power also gives the executive authority to direct the non-military CIA to torture in violation of federal law…or is that power subsumed in some asinine conception of the “unitary executive”). How the government and executive department created by our Constitution could be perceived as creating such dispensing power is totally beyond me – especially given the executive’s Take Care Clause obligation.

    Martial law is a local phenomenon imposed under very narrow circumstances. There is no question in my mind that it is included in the C-in-C power in a conflict or post-conflict zone over the local civilian population. But to argue for a general dispensing (the equivalent of a legislative, martial law-like) power regarding all things military is textually and structurally disingenous and both ludicrous and dangerous.

    The executive can ultimately direct troop movements in the field and the general conduct of all military campaigns. Congress cannot tell the executive which targets to bomb or which hill to assault. That is quite a different proposition from ignoring all laws that place limits on war-conducting powers during those campaigns. Carried to its logical extremes, your theory permits the executive to order war crimes in violation of federal law and even violate congressional funding limitations. If Congress “de-funds” a war the executive deems essential to the national defense, would you honestly say that he can use his C-in-C powers to ignore the law? I hope not. But the appropriation and raise and maintain powers relevant to such a law are juridically equivalent to the other powers of Congress I previously mentioned.

    The executive simply cannot order the violation of applicable federal law in the course of a military campaign. Remember that Congress not only has all the powers I previously mentioned, but also the power to make necessary and proper laws regarding all powers vested in the government by the Constitution, of which the C-in-C power is one. Further, I reiterate that the executive has the obligation to take care that all laws are faithfully executed…not just those he finds convenient. I am fully aware of the precedent you mention, and believe it is correct. It is your application of it to the C-in-C power that I believe is flawed.

    I hope you will consider the implications of your arguments, their actual structural, textual, and historical support, and re-consider your views. I, for one, specifically recall being told in civics class (I think it was assumed I already knew it in law school) that I did not live in any form of a monarchy.

    I also suggest that you look at the below website link. On a fairly recent trip, I viewed this monument in person and find it to be quite compelling. With regard to the plaque entitled “Loyalty to the Constitution”, I wish OLC tried to produce such men “of character” instead of suck-up politicians with law degrees who are full of more academic theories about executive power than accurate legal opinions and common sense.

    Constitution Corner

    — The Casual Observer (or in this case, not so casual perhaps)

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