The Limited Upside of Congressional Support for War on Terror Policies
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.