One of Congress’ many recent failures is that it has allowed the 2002 Authorization for Use of Military Force (AUMF) to expand to meet the President’s every new demand on Iraq. Since the Constitution empowers Congress with declaring war it is perfectly valid to say any use of soldiers in war without one is illegal, yet as a body it doesn’t seem to care. This is a tangential issue since we haven’t had a formal declaration of war since World War II, but the willingness of Congress to allow war without its explicit approval should at least be mentioned.
The drawback of the half-a-war approach is most obvious now. The AUMF is now being invoked to justify a treaty disguised as a Status of Forces Agreement (SOFA) and it puts Congress in a bind. Of course it is probably as likely that House and Senate leaders are only too happy to let someone else call the shots in Iraq - it looks like it will end up being the biggest foreign policy blunder in our nation’s history; no one wants to volunteer to take a piece of it. Embrace it and you have to explain how we continue to turn the mother of all corners and when it will be done. Right now there is not the faintest hint of a policy for Iraq, no vision of what the mission even is at this point. Embracing the war means embracing the man who dictates the plan, and he has none.
Still, if Congress was theoretically interested in getting involved and challenging him on the latest fruits of his seat-of-the-pants strategy there are options. For one it could begin publicly floating drafts of treaties as trial balloons. It would get the word out to Iraq that the body in charge of signing treaties may be willing to collaborate on a document that might lead to a finished product. None of it would be legally binding and the President could disregard it but it might not be easy. We see the same situation in reverse when he presents his “budget” to Congress every year. Someone always says it is dead on arrival and in fact the President has no authority to write the budget or even modify it. His only choices are sign it or veto it.
On the other hand, it still influences the process: It sets parameters for debate by getting major points out in the open. If the President’s budget calls for a 25% increase in military spending he probably doesn’t expect a 25% increase, but a Congress considering a 5% increase might up it to 7%. It also signals what the President will and won’t sign. He could take a hard line and veto anything not entirely to his liking but Americans tend to get cranky when government shuts down on big issues. In other words, Congress could begin to force the President’s hand just by getting some ideas out there.
It could also nibble at the SOFA if it wanted. GlobalSecurity.org describes the three kinds as “administrative and technical staff status under the Vienna Convention on Diplomatic Privileges, commonly referred to as A and T status [if they called it technical and administrative they might get more peoples’ attention - Dan]; a ‘mini’ status-of-forces agreement, often used for a short-term presence, such as an exercise; and a full-blown, permanent status-of-forces agreement.” Congress could demand that it be classified as one of those three and maybe push for the first (most limited) version. The President would then have to come out in favor of the full-blown version, which would make him look ever more intent on keeping us dug in there. Even with the full-blown version Congress could then say the military had to live up to it and transition to “day-to-day business, such as entry and exit of forces, entry and exit of personal belongings (i.e. automobiles), labor, claims and contractors, and susceptibility to income and sales taxes.” In other words, pull back within the country itself. SOFAs are clearly not meant for ongoing combat operations and Congress could get the word out early and often. In doing so they could seize the advantage in the debate.
Once again I realize this is all somewhat academic since there is no evidence Congress would like to take the lead on Iraq. Still, it could begin reclaiming its rightful authority in foreign policy even at this late date. It could begin pulling the President back towards a more traditional executive role and start undoing some of the damage that’s been done. There is no reason to expect it will, but the tools are still there, gathering dust.
The primaries came roaring through this week (I live in Ohio) so I got the same heavy dose of campaigning many of the rest of you already received. One of the strongest impressions it left is that this election season has many of the bad features of previous ones, only more so. As a result we have not had a discussion of many issues of substance.
First, a few kind words. One of the highlights was the start of the Democratic debate in Cleveland. It began with a question about health care plans and for the next sixteen minutes Clinton and Obama want back and forth over details. I didn’t think the exchange had a clear winner but I thought it was great to see them criticizing details of their opponents’ plans and defending their own. Afterwards I heard quite a bit of carping about how it went on too long but I disagreed completely - if anything it should have gone on longer. It is an issue of great importance to huge numbers of people. Shouldn’t we be hearing about it all the time?
The rest of the run-up was largely hard to stomach. For example, our country is at war but we heard almost nothing about it. The right says the surge “worked”. When it was announced over a year ago it was supposed to last until September, with a goal of providing additional security for political reconciliation. We are now six months past the deadline and the reconciliation has indisputably failed. Why weren’t the Republicans pressed on it? Why hasn’t anyone asked the following: If the surge worked why haven’t troops been coming home since September? Is reconciliation still a policy goal for us? If so are there some new deadlines or benchmarks we haven’t been told about? If not what is our policy now? How will we benefit, taking into account the following: The massive expense has helped explode our deficits. Now that we are in a recession the Federal Reserve is cutting interest rates to stimulate the economy, but low interest combined with fiscal profligacy has led to a flight from the dollar and a corresponding rise in prices. Wouldn’t the money we are spending on the war be better used shoring up the economy? How much money are you willing to spend on it? Is there a dollar amount at which you consider it no longer in the national interest? Most importantly, is there a body count at which it isn’t?
For the Democrats, what specifically do you plan to do on the economy? I was disgusted by their anti-NAFTA rhetoric because it was such an obvious and insincere pander. Neither candidate spoke about it until setting foot in our state, and both managed to avoid bashing it in Texas. Any attempt to change it would be met with corresponding requests from Canada and Mexico, and something tells me those wouldn’t sound nearly as good to us. NAFTA is a complicated free trade agreement that can’t just be grabbed and reshaped on the fly. Don’t insult our intelligence: That ship has sailed and we know you haven’t made it part of your candidacy. Give us a realistic plan for going forward.
I usually write about executive power, but I understand that being able to focus on it implies some very happy things for me. I haven’t (so far) had to face a job loss in an increasingly turbulent job market; I haven’t seen the value of my home crater or my payments skyrocket; I haven’t faced a catastrophic medical expense; I haven’t been sent off to war. Part of it is the result of being sensible and making smart decisions but part of it is pure, blind luck. There are people out there who are a lot more sensible and smarter than me who are much worse off. I understand elections are likely to focus on more tangible issues like the disappearing manufacturing base or the tens of millions of un- and under-insured. But even these issues have struggled to get focus. Voters have asked about them, but clearly not emphatically enough. Candidates have only mentioned them in passing on their way to scoring political points against their opponents. Reporters apparently would rather not invest a great deal of time investigating. Presumably talking to experts, analyzing, and returning to the candidates for follow-up is also not considered newsworthy in their organizations. It is probably safe to say the reporters themselves won’t confront such an awful situation and therefore assume it is not worth reporting on. I am fine with my preferred issue getting short shrift in favor of other weighty issues, but seeing it overlooked in favor of double talk, personality profiling and endless speculation is very frustrating.
We are starting to get some clarity on the post-Protect America Act legislation. The President now says (via) that he won’t compromise on amnesty for telecommunication companies and Glenn notes that now the administration openly admits the real reason is that it simply doesn’t want the public to find out what it has been up to. Somehow I think even those of us who have been screaming about this will be shocked at the details.
The Washington Times is one of the most conservative newspapers in the country and even it is now editorializing in favor of a repudiation of the current mania for secrecy as it now approvingly cites Steven Aftergood: “[T]he new Administration could demonstrate a clean break with its predecessor, and lay the foundation for a more transparent and accountable Presidency.” Some on the right seem to be pushing back and that is an extremely encouraging sign.
Daniel Drezner asks “Which candidate will hoard executive power the least?” and makes a good case that John McCain is better than Obama or Clinton; Jeffrey Rosen thinks Obama would be very friendly towards civil liberties. From everything I’ve seen Ron Paul is the best remaining candidate on commitment to undoing the power grabs of the last seven years (before he dropped out Chris Dodd was great as well). I think he would actively pursue a rollback while the rest are answering questions and making pretty good sounds when pressed. It would have been nice if a debate moderator thought to ask about it.
[T]he Republican National Committee has informed a House committee that it no longer plans to retrieve the communications by restoring computer backup tapes.
It looks like the blurred line between the Republican campaign apparatus and the White House won’t get clearer any time soon.
Finally, just curious: Any Air Force folks reading this?
A couple of weeks ago I wrote about the additional headaches we will have to confront as a result of the Administration’s attempts to radically expand executive power. There are problems in existing areas as well, and here are just a few examples.
The Independent (UK) reported how the Pentagon now has “‘information operations’ as its fifth ‘core competency’ alongside land, sea, air and special forces.” This is a long way from having a PR operation and putting the best possible spin on what’s happening. Instead it is a system-wide effort to produce content for local media to plug in transparently with legitimate news content (Karen Ryan, anyone?) They are also increasingly integrated with State Department programs, and keep in mind State has proven to be entirely inept at persuading through propaganda. Prior to this administration we could point to Voice of America and Radio Free Europe as examples that were clearly pro-American but still respected as news organizations. Since then we’ve had Radio Sawa and al Hurra catapulting propaganda for unimpressed audiences. If it isn’t already entirely discredited then adding the perception that the military is strong-arming its own version of the news into the mix will surely finish the job.
Another broken department is the Federal Elections Commission. The FEC is currently operating at one third strength because all nominees to the vacant positions are being held up over Democrats’ insistence on a separate vote for an obviously corrupt Republican Party hack. In the last few years there has been a great deal of emphasis on vote fraud (without turning up any actual instances) along with creative new forms of voter suppression such as caging. It appears the administration’s goal is to make the FEC either a wholly owned subsidiary of the party or a toothless watchdog. In the short term the prospect of Bush’s endorsed Presidential nominee dangling in the wind because an agency he crippled can’t even achieve quorum is wonderfully amusing; in the long term we have the perception that the FEC is just another chunk of the political apparatus. Obviously that has serious implications for the degree of legitimacy we give to our elections.
Then on Sunday there was the “60 Minutes” report on former Alabama governor Don Siegelman. It now looks like the Justice Department may have broken the law in an effort to convict him of bribery. Mounting a Soviet-style show trial in order to wreck the life of a political opponent is about the worst action a government can take against an individual short of threat of or actual violence. Keep in mind this scandal is independent of the firing of U.S. Attorneys for not actively advancing the interests of the Republican Party. In these and other ways Justice has been compromised. As Christy Hardin Smith notes it “is not only antithetical to what ‘justice’ means, but it taints the entire process with a coat of slime that decent prosecutors will be working to undo for years — which puts communities at risk because juries will suspect a taint even where there is none.”
The cumulative impact of the administration’s project to politicize everything is summed up nicely by Kargo X:
It’s no longer just your basic looting of the Treasury. Dollar-based corruption we at least understand. But corruption of the actual mechanisms of the government itself? Corruption not meant to enrich, but to corrode public trust in the only system we have for actually holding corrupt officials to account?It’s probably a running joke the world over that government is inefficient, bureaucratic, Byzantine and at times almost comically inept. It’s a caricature grounded in truth, but our current leader wants us to believe it is a portrait of the entire truth. He may have been unintentionally revealing when he jokingly stated (via) his preference to be a dictator - he clearly chafes at following rules or being subject to oversight. He seems to believe that he knows what is right and should be free to pursue it without constraint, and one crucial part of that pursuit is sowing doubt everywhere (even where reasonable doubt has been long erased). Has State Department media been reduced to a laughable house organ? Is our elections commission able to fairly monitor the election system? Does the Justice Department pursue the law wherever it may lead? He prefers us to doubt all that and more. In order to act without the restraints of convention, norms, ethics or even the law itself it is essential that we doubt the abilities of our institutions to function competently and honestly. It doesn’t matter if we strongly suspect something is wrong, only that we not be able to determine what is right. Such a large-scale loss of faith in our government will take a long time to repair, but of course that will be of little concern to him as he retires to build his temple to himself in Texas.
The Supreme Court is a political body, and it is most obviously political when it addresses the most politically charged cases. In the past generation the best example was probably Bush v. Gore. Consider: A court that successfully touted itself as a champion of restraint and deference to the states was greeted with the mother of all states’ rights cases. The Florida Supreme Court ordered a recount of ballots guided by the state’s language for determining voter intent. This is not metaphysics, but the Supreme Court ended up reasoning in a manner that made it seem like the state court had ordered officials to determine how many angels can dance on the head of a pin. A properly restrained court would have ruled that the lower court ruling was proper and Florida had a reasonable layman’s explanation for how to proceed. Instead the court suddenly became tremendously concerned with parsing the language for deciding voter intent and overturned the decision in a touching display of concern for ballot standards that surprisingly enough hasn’t been revisited since.
As a group they clearly have a soft spot for Republicans, and the forty third President has been a primary beneficiary ever since that happy moment of judicial activism. This week that same famously verbose court rejected without comment an ACLU lawsuit over the administration’s warrantless wiretapping program. The lawsuit was originally dismissed in the 6th U.S. Circuit Court of Appeals because the plaintiffs could not establish that they had been victims of the program (i.e. had no standing). If as seems to be the case the Supreme Court prefers to start with the decision it wants and walk the judicial reasoning backward (a sort of reverse induction) this case presents some problems. It’s tough to explain why anyone doesn’t have standing when everyone is caught up in it. If the NSA has been vacuuming up data wholesale for years then my dead grandmother has standing because her data was getting sucked up before she went to her reward. How can you explain that people caught in a comprehensive spying sweep don’t have standing? Better not to comment.
The suddenly-timid justices seem unwilling to confront the administration and the desire to not embarrass a fellow Republican has to be considered one of the possible reasons. One unfortunate bit of Constitutional gaming they allow by that is the 6th Circuit’s surprising logic (via) that the harm alleged in the lawsuit was “likely to persist even if the NSA was required to obtain warrants”. In other words, outcome trumps process. Doing something illegal is fine as long as the end result is the same as if it had been done legally. It’s a new twist on the idea that the ends justify the means. Even worse, the Court once again tacitly approved the idea that if the Executive branch is doing something illegal it may quash challenges by simply ceasing the activity. Saying “well as long as you’ve stopped we’ll just leave it at that” is nothing more than a form of retroactive immunity. The statute of limitations has just been shortened to the moment you announce your intention to follow the law. Mafia bosses looking to leave a life of crime must be delighted. And as the same article points out, there is still the very current issue of whether the President is allowed to conduct wartime surveillance outside of Congressional authority. I know the Court may prefer to wait until a more suitable President is available to rule against on this topic but a lot of us would like to see them take it on while they’re in the neighborhood.
In Bush v. Gore the Court wrote “None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.” It is a measure of their dishonesty that their concept of what is a vital limit and what they are forced to confront routinely breaks along transparently political lines, and it is a measure of their contempt for the public that they piously describe themselves as outside the political sphere when they obviously are in the thick of it with relish. It would be a breath of fresh air for them to admit as much to themselves and the rest of us.