Imbalance of Power II Posted by Spencer Boyer

The comments on my last posting have raised interesting points concerning the President’s war powers, which I believe merit a second, related posting.

I recently served as the War Powers Initiative director for an organization based at Georgetown University. The Initiative assembled a bipartisan committee of experts with high-level executive, legislative, and judicial branch experience, including a former U.S. senator, CIA director, U.S. Appeals Court chief judge, legal advisor to the State Department, and secretary of the army, along with numerous war powers academics and scholars. The co-chairs were former U.S. representatives – one Democrat, one Republican. Our report on U.S. war powers touched on numerous points, but focused largely on how Congress needed to perform its mandated war powers duties more diligently in order for the constitutional checks and balances envisioned by the Framers to function properly.

The current controversy regarding domestic surveillance brings the debate over the proper roles of the President and Congress in the war powers arena to the forefront. Contrary to my point of view, it has been suggested that the administration’s domestic spying program is indeed authorized by Congress’s 2001 use of force authorization, which notes the President’s authority under the Constitution to take action to deter and prevent international terrorism against the U.S. It is true that the President, as Commander in Chief, can act to respond to an actual or imminent attack against the U.S. without consulting Congress and has responsibility for day-to-day tactical decision in the conduct of war. The Framers had experienced the inefficiencies of command by committee during the Revolutionary War’s early years, and did not want to repeat the mistake.

However, the Framers clearly intended Congress to exercise its collective judgment in authorizing force – absent a specific, imminent threat when there is no time to consult Congress – and did not give the President the constitutional power to ignore the terms of a congressional authorization for the use of force. As Justice Paterson said in Bas v. Tingy, construing the statutory authority for America’s first war against a foreign state, “[a]s far as congress tolerated and authorised the war on our part, so far may we proceed in hostile operations.”

As noted in my earlier posting, the 2001 authorization gives the President authority to use “necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” As also noted, Attorney General Alberto Gonzales claims that warrantless domestic surveillance by the National Security Agency did not violate the Foreign Intelligence Surveillance Act because FISA only requires a warrant “unless otherwise authorized by statute,” and that the 2001 authorization gave the administration such permission.

However, recent news reports point to evidence of a widespread data mining scheme, which collected information from American citizens who had nothing to do with the attacks of September 11. This would clearly be outside of what Congress authorized the President to do in its authorization, and, given that the surveillance program has been going on for years, could hardly be viewed as a response to an actual or imminent attack for which there was no time to consult Congress.

In addition, arguments that Congress was consulted and had input on the administration’s domestic spying program are weak. Less than 10 of our 535 members of Congress were briefed about the domestic spying program, and were prohibited from discussing the briefing with anyone. This is not the role the Framers would have envisioned for Congress in such matters.

As Suzanne Spaulding mentioned in her Washington Post Outlook piece on Sunday, “Sandra Day O’Connor rejected the administration’s claim of unchecked power in the 2004 Hamdi case, in which the government argued that the courts could not review the legality of enemy combatant detentions. She wrote, 'We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens…. Whatever power the United States Constitution envisions for the Executive in its exchanges with… enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.' ”

Instead of putting forth dubious constitutional arguments that trample on Congress’s established war powers, the administration should admit that it was wrong to ignore the prohibitions of FISA. If the President thought there were something wrong with the law, he should have worked with Congress to repair it. Disregarding it should not have been an option. If the checks and balances envisioned by the Framers are to mean anything, Congress and the courts must review this matter and the administration must be held accountable.

A Fair Question Posted by JohnNorris

The comments on the conduct of the war have been withering. One Canadian general has suggested that the strategy “will be used for generations as an example of how not to wage a war.” Another commentator has argued that America now has “the worst foreign policy team since the Second World War.” A major newsweekly has cited the war “as the latest example of an incoherent foreign policy driven by moral impulses.” British author Hugo Young has called it “a slow disintegration of American purpose.”

Iraq? Nope.

All of these were comments made in the first half of 1999 about the Clinton foreign policy team in the middle of the Kosovo bombing campaign. In retrospect, these comments look like a mixture of sour grapes and almost hysterical desperation.

This brings me to the question for the day: Is Iraq simply immersed in the darkness before a painful dawn, or have things really slid off the rails in such a profound way that it makes sense for the United States to begin a careful withdrawal? The answers are probably not as cut and dried as partisans on both sides of the aisle would like us to believe, and it is unfortunate that the atmosphere here in Washington has become so poisonous that intellectually honest debate has become very, very difficult. To all I wish a good New Year, and thanks to Derek for letting me sit in during his well-deserved absence.

Abuse of Power Posted by Morton H. Halperin

Last week as the administration scrambled to justify its sweeping NSA electronic surveillance directed at Americans, it engaged in behavior which led the usually compliant Fourth Circuit Court of Appeals to reject a government motion to transfer Jose Padilla from military to civilian custody.   

The panel led my conservative Judge Michale Luttig concluded that the government's unexplained and inexplicable actions "have given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decisions by the Supreme Court." panel opinion, at page 6).

Only by reading the governments most extensive defense of the constitutionality of its actions in conducting warrantless electronic surveillance can one understand why the administration is in fact desperate to avoid Supreme Court review of the Fourth Circuit's decision in the Padilla case.

Imbalance of Power Posted by Spencer Boyer

Spencer P. Boyer

Season's greetings.  Suzanne Nossel asked me to be a guest contributor while she is in South Africa. By way of background, I am a Fellow to the Security and Peace Initiative of the Center for American Progress and The Century Foundation.

President Bush defends his program of warrantless surveillance of Americans, in violation of the Foreign Intelligence Surveillance Act, by pointing to a 2001 congressional resolution authorizing him to use all necessary force against those responsible for the attacks of September 11, 2001. He also makes the case that, as Commander in Chief in a time of war, he has the power do whatever he sees fit, regardless of legal prohibitions, when he believes it is in the national interest to do so. Unfortunately, his actions are indefensible.

To start with, there is no ambiguity when it comes to FISA. Congress made it clear when it enacted the law in 1978 that the President must have a judicial warrant to eavesdrop on Americans. Congress clearly rejected the idea of inherent Presidential authority to conduct warrantless wiretaps in the U.S. and made such actions by the executive branch a crime.

The administration cites Congress’s 2001 use-of-force statute, which authorized the President to use “necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” as giving him the authority to conduct these warrantless searches on Americans. Attorney General Alberto Gonzales attempted to bolster this point by stating that domestic surveillance by the National Security Agency only occurs where there is a reasonable basis to conclude that one of the parties of the communication is a member of al Qaeda or otherwise affiliated. The administration’s points do not, however, make the domestic spying program any more legal.

As a general matter, a declaration of war, which we have not had since World War II, arguably triggers a range of common law-of-war authorities in addition to standby statutes keyed to “declared war,” “war,” or “time of war.” Use-of-force statutes, on the other hand, have less of a domino effect and do not trigger certain standby authorities, such as the power under the Alien Enemy Act to detain alien enemies, keyed to a declaration of war. But nothing in the 2001 congressional authorization, which was specific in its language, gives the President power to ignore the clear statutory prohibitions in FISA. FISA does allow the Attorney General to use warrantless wiretaps for fifteen days after a declaration of war. But even if the 2001 authorization was a declaration of war, which it was not, the surveillance would have been authorized for only that short period of time. 

In addition, in a Washington Post Op-ed on Friday, former Senate Majority Leader Tom Daschle rejects the notion that Congress intended the 2001 authorization to exempt the President from FISA. Senator Daschle, who helped negotiate the authorization, states that the administration tried, and failed, to insert language allowing for expansive Presidential powers in the U.S.  Thus, there can be no illusion concerning Congress’s intent.

This administration’s penchant for increasing executive power in the name of national security – denying prisoners access to lawyers or courts, indefinitely detaining individuals as enemy combatants, rejecting the applicability of the Geneva Conventions – continues to trample on civil liberties. If we are to accept President Bush’s claim, he could ignore any clear law he disagrees with during our war on terrorism, which could last for decades. The Constitution requires the President to take care that all laws are faithfully executed, not just the ones he likes. The Framers of our Constitution guarded against an abuse of power by the President by embedding governmental powers in a system of checks and balances. It is time for Congress and the courts to re-establish the equilibrium.

Caribou best Conservatives! Posted by Lorelei Kelly

Heather's polling comments demonstrate that the public is figuring out that they've been snookered. Although Bush's personal approval gained some ground back, Americans remain dubious about the war.  I wager that his higher personal raings will prove temporary and soon rejoin the Iraq numbers.

A Lakoff  inspired reflection: The interesting part about GW's poll numbers is how well the conservatives  control their narrative.  The victory language combined with Bush's personal appeal is a tonic for his political base.  Yet conservatives-like any good storytellers--depend on messenger credibility for staying power.  President Bush explicitly depends on his believability as a messenger who reflects strong and decisive leadership.  The public has let him slide on other flaws because this one perception is decisive.  This perception was damaged by Katrina and is being inexorably eroded by Iraq.  Even several speeches in a week won't reverse the nagging sense among Americans that we've been had.

The Republican party is developing interesting fissures...Now, it appears that not even
accusations of being "soft" on defense can keep the party in line.  Here is an Intriguing list of Republicans who voted against the Defense Appropriations conference agreement, something not done lightly.  This year 16 Republicans voted against it, undoubtedly related to the addition of the provision to drill in the Arctic Refuge.  The final vote was 308 yeas, 106 nays and 2
voting present.  Last year the conference report passed 410 to 12.

Republicans voting no in 2005:

Bass
Castle
Ehlers
Fitzpatrick
Hoekstra
Johnson (CT)
Johnson (IL)
Kelly
Kirk
Leach
LoBiondo
Paul (he always votes against it, as he does against most spending bills)
Petri
Ramstad
Shays
Smith (NJ)

This is a sure sign of nervousness.

Spinning in a widening gyre of polls Posted by Heather Hurlburt

Any progressive who remembers the fights of the 1990s over whether there was or could ever be public support for stopping genocide in Rwanda, or Bosnia, or elsewhere should have been watching President Bush's recent jag of Iraq speech-making with interest.  Is it, in fact, possible to talk Americans into supporting a conflict -- especially one they have grown tired of and one that, unlike Iraq in 2003 with its alleged WMD, cannot be painted as an immediate threat?

Last month in Foreign Affairs, John Mueller said no.  Duke's Peter Feaver famously said yes, and got hired on at the White House to make it so.  Last week the first round of polling came in.  What did the people say?

1.  Bush wasn't hurt.  The President's personal numbers rose gratifyingly, and issue-specific numbers stopped their declines in most areas.  It's early, of course, but interesting to note that  Bush hasn't suffered for putting his prestige on the line to make the case -- whatever one thinks of the case itself.

2.  The bleeding stopped.  It looks to me as if he succeeded in rallying his base back to him, but not so much in persuading any of the "persuadable middle."  In several areas all of the shift came from undecideds.  Interesting to consider whether just the fact of his taking a stand on something, rather than the specific stand he took, is what moved the needle for him.  Looking resolute and Commander-in-Chief-esque and all that.

3.  Bottom line on Iraq:  the people aren't buying.  This is really striking:  The number of people who think the President has a plan for Iraq fell between November 30 and December 9-11, before rising again in the poll taken just after the feel-good election day.  The percentage of people who think the Iraqi military and police will be able to secure the country without the US in the next few years actually declined.  (Not sure whether that's what the White House wanted, or not.)  The percentage of people saying our troop presence should decline also rose.

So, an interesting bottom line for students of the public and international relations:  President Bush was able to buoy the nation's opinion of him, and buy himself some more credit to spend on the war, if he so chooses; he produced a little increase in optimism on whether the war can and will be won; but even giving speech after speech on the specific topics, he wasn't able to change people's minds much about the specifics of what is happening on the ground. 

Of course, much of the coverage of the speeches was, as I have groused before, about the fighting inside the Beltway and not about what is happening on the ground.  But now I'm starting to sound almost sympathetic.   

Iraqi Election Recap Posted by Suzanne Nossel

I am going to be off for about 2 weeks for a trip to South Africa and will have Spencer Boyer filling in starting later this week.  Posting here in general may be a bit light for the holiday period, and will resume per usual in January.

But before signing off I wanted to do the very beginnings of a recap on the 10 issues I said we ought to watch in relation to the Iraqi elections.  I am going to review only those issues with respect to which we have enough information to begin to evaluate the results, and will stick with the numbering scheme used in my original post:

1.  The Iraqi United Coalition made of up of conservative Shiite parties seems to have done well.   In general, this does not bode well for US influence over the shape of the Iraqi government, and suggests that Iran's role will grow.

2.  Allawi's party seems to have done commensurately poorly, dealing a blow to hopes for the rise of moderate secularists.  Allawi seems to be preparing a challenge to the results.

5.  Interestingly the talk of immediate drawdown of US troops seems to have died down a bit over the last week or so, with an announcement instead today on drawdown in Afghanistan.  This may be the Administration's effort to deflect critics who suggest that no matter what he says, Bush is pulling out.   And/or the Administration may feel it has to wait until a new government is actually formed.

6.  Fraud allegations are coming fast and furious, with Sunni's charging that early returns suggesting overwhelming Shiite victory in Baghdad are at odds with the demographics of the area.   This is very worrying, in that the much-touted Sunni buy-in to the political process could erode quickly if the legitimacy of the results is in question and/or if the Sunni parties have just performed poorly.

7.  There's no sign of convergence between Sunni and Shiite religious parties.  On the contrary, American Ambassador Zalmay Khalilzad is warning of rising sectarianism.

9.  One piece of good news is that Ahmed Chalabi's effort at political rehabilitation seems to have failed.    But knowing Chalabi, who would be surprised if he doesn't somehow emerge as more powerful in a new government than the raw poll numbers would seem to permit.

10.  Bush spun pretty hard during prime time two nights ago, trumpeting the elections as a triumph.  But as the facts emerge on winners and losers, my sense is they'll be forced to go a lot quieter.

All in all, the early returns point in a variety of distressing directions.

The Grinch Posted by JohnNorris

Following up on Heather’s earlier post, but with a bit of a twist of the Grinch, I would like to add my five bad news stories from around the globe as we stagger out of the year that was 2005.

Nepal: With the King of Nepal increasingly refusing to compromise or restore democracy, mainstream political parties have been forced into an alliance with Maoist rebels seeking to overthrow the government. It looks like things are positioned to get worse before they get better in 2006.

Russia: President Putin has been cracking down on NGOs and the media while trying to buy the favors of western politicians, including Gerhard Schroeder, as a means to stave of criticism and cut pro-Russian business deals. There has been nary a peep on all these troubling developments out of the White House, and this is particularly disappointing given that Condi Rice cut her teeth as a Russia hand.

The Democratic Republic of Congo: With national elections set for next year, this should be a promising story, but the international community remains distracted and reluctant to finally put some of the truly awful militias operating out of the east of the country out of business for good.

Darfur: 2005 was a muddle through year for the world in its efforts to deal with Sudan. Why are so many people still dying in plain sight in Darfur and why does the United States let Sudan get away with the same tactics over and over again?

China: Does the United States have a discernible strategic approach to China? If anyone finds one around, please let me know. As the interesting piece in the Sunday Times about the growing militancy of Tibetans made clear, China has lots of internal fissures that will become more pronounced as expectations for democracy and prosperity take flight. The Bush Administration, after beginning its tenure almost China-obsessed, seems to have a hard time finding Asia on a map these days.

Happy holidays!

Fighting Dems to the Rescue? Posted by Suzanne Nossel

This article on helicopter pilot and Army major L. Tammy Duckworth who has now declared her candidacy for the Chicago Congressional seat that Henry Hyde will vacate next year got me focused on something the MSB (mainstream blogosphere, i.e. DailyKos) has been onto for months:   Fighting Dems.

Fighting Dems are the nine and counting Iraq military vets who are running for Congress as Democrats, following in the footsteps of Paul Hackett.  Kos and Air America have teamed up to profile one a week.  Here's the list along with links to each campaign website.   A few weeks ago I met Patrick Murphy who is challenging a first-term Republican in Pennsylvania's 8th District.   He's bright, but as green as they get when it comes to campaigning.  Nonetheless, when he talks about Iraq he held an audience of long-time donors and operatives better than any career politician could have.

The theory behind the Fighting Dems and the reason the DNC and DNCC are working so hard to find these people is obvious, but compelling:  these candidates can take the Republicans on where they are now weakest, but without exposing traditional Democratic vulnerability on security.   Moreover, they have interesting life stories, have endured hardship (Tammy Duckworth lost both legs when her helicopter was shot down), and generally exhibit qualities like patriotism and courage that we Americans admire.

I'm getting ahead of myself, but here are a couple of things I find interesting about this:  One is that it may offer the beginnings of the overarching narrative progressives will need in 2006 in order to make major gains.   To retake more than a handful of seats, progressives will have to do more than run a series of individual campaigns.  To defeat incumbents, we will need to explain why people need to begin to turn out the current leadership nationally and what the alternative - writ large, not just in the form of one representative - will offer.  Ideas like a National Security Contract with America can help do that.  So will a group of young, gutsy veterans with a shared vision.   

The Fighting Dems also have the potential to help us fill the genuineness gap:  those creeping suspicions that John Kerry's every word - even about his own military service - was crafted by a political spin-meister.  The spin machine hasn't (yet) taken over the Fighting Dems, and it shouldn't.  They speak from the heart, and from the pain of real and recent experience on the battlefront.   If they are indeed seen as the new voice of the party, this could begin to help counter the McCain factor, which is driven by his own direct, unscripted quality.

Relatedly, the Fighting Dems can help convince the public that a thoughtful Iraq policy does not amount to a bowl of mush.   There are differences among the Fighting Dems over Iraq.    Charles Brown wants redeployment now.  Andrew Duck wants to stay in and fight better.  But there's a lot the candidates agree on:  the utter mismanagement of the war, the dangerous strains on our military, the tarnishing of America's image abroad, and the failure to provide adequate support for servicemembers and their families back home.   

Whereas the Hill Democrats have struggled to make the above sound like a leadership position on the war, the Fighting Democrats can do so.  In this way, they may help us out of the mire of seeming indecisive, and inarticulate, stepping into the gap and offering something that, however untutored, may come across as more clear and compelling than what progressives have been able to offer so far.

If the Fighting Dems win in significant numbers, we may be looking at the face of the future of the Democratic party.   

Live Blogging II Posted by Suzanne Nossel

Is he suggesting that 9/11 would not have happened had we been fighting in Iraq or Afghanistan then?  Comes close.

Says noone in Iraq - not our troops or the terrorists believe we've already lost.  Apparently Paul Hackett thinks we have.  I am not convinced we have lost, or are losing irrecoverably.  But I'm far from convinced we're winning.

He describes 3 critical elements to the plan:

1-Coalition will remain on the offense -    This will be interesting in that many analysts have suggested that over time the US will and/or should retreat to a posture where we avoid offensive operations and act as a kind of backstop to the Iraqis. 

2 - Creating democracy - Last week's election went well.  No surprise that its been heralded as a huge step forward, notwithstanding the fact that the votes have not been counted, nor a government formed.  Nothing on what happens next or the challenges ahead.

3 - Economic progress - Cites optimism of the Iraqi public.  Says absolutely nothing about what the strategy is or what will happen next.

Speaks of difference between "honest critics" and "defeatists" who have a partisan bent.   

He says we ARE winning the war in Iraq.   

He speaks of Mideast tyrants laughing at our failure of resolve if we pull out.  It's an awful thought, but should not be the guide for US policy.

Nothing yet about how we're going to shore up the military and make sure its not overstretched indefinitely.

The road to victory will be the road that takes our soldiers home.  Could be a long road.

No reference to a pull-out.  If he does start a draw down, which looks highly likely, it will be a turnabout from this speech.

He now addresses those who opposed the war at the outset, saying that regardless of what you thought then, don't give up now on the fight.  Wants patience.  I actually liked this part of what he said.  It sounded relatively respectful.

He says he's never been more certain that our actions in Iraq are essential to our security . . . wonder if that's true.

References Xmas and Channukah next week (war on Xmas types will go nuts).   Now, in deference, he's quoting an Xmas carol in his closing.

In sum:  neutral, good but will not move the needle.