Presidential War Powers 1
Restoring the Balance: Restricting Presidential War Powers
A controversy paper proposal for the 2013-14 CEDA season
Dr. Kelly Young, Wayne State (OSOs) John Koch, Wayne State (Drones/UAV) Bruce Najor, Wayne State (Detention) Al Hiland, Minnesota (Covert Ops) Jacob Justice, Wayne State (Wiretapping) Brad Meloche, Wayne State (Preventive Intervention) Talya Slaw, Wayne State (UN/NATO Operations)
Presidential War Powers 2
Table of Contents
Executive Summary…………………………………………………………………………………………………………………………………3 I. Introduction……………………………………………………………………………..…………………………………………………5 II. The Status Quo and the Central Controversy A. The Status Quo & Uniqueness……………………………………………………………………………………….7 B. Stakes of the Controversy………………………………………………………………………………………………9 III. Mainstream options for policy change –Limitations/Restrictions on War Powers A. Statutory Limitations or Restrictions as a Mechanism……………………………………………………………….12 B. Broad Statutory Approaches to Restrict the Use of War Powers………………………………….16 C. Specific Approaches to Restrict the Use of War Powers 1. UAV/Drone Strikes…………………………………………………………………………………………..17 2. Offense Cyber Operations……………………………………………………………………………….25 3. Indefinite Detention………………………………………………………………………………………..29 4. Warrantless Wiretapping…………………………………………………………………………………39 5. DOD Covert Operations…………………………………………………………………………………..46 6. Approval for UN/NATO Action…………………………………………………………………………52 7. Unilateral Preventive Military Operations……………………………………………………….57 D. Critical Approaches to Limiting Presidential Powers 1. Local/National focus and critique of presidentialism……………………………………….62 2. Psychoanalytic/anti-capitalist analysis……………………………………………………………..64 3. Critical examination of the National Security State………………………………………….65 4. Critical interrogations of specific technologies/war powers…………………………...66 IV. Unique educational opportunities…………………………………………………………………………………………………….66 V. Core Negative Ground A. Leadership/hegemony DA…………………………………………………………………………………………….70 B. Terrorism Credibility DA……………………………………………………………………………………………….73 C. International Peacekeeping/Human Rights Enforcement DA……………………………………...74 D. Modeling Das……………………………………………………………………………………………………………….76 E. Politics DA…………………………………………………………………………………………………………………….76 F. Counterplans………………………………………………………………………………………………………………..78 G. Negative Critical Arguments…………………………………………………………………………………………84 VI. Potential directions for wording papers……………………………………………………………………………………………87 VII. Recommendation of the authors…………………………………………………………………………………………………….92 Presidential War Powers 3
Executive Summary
We know that there will be a number of excellent controversy papers offered for the 2013-2014 season. Careful consideration of these proposals is always difficult as the school year ends and summer camp work begins. We apologize in advance for submitting a rather lengthy controversy proposal. However, the length of this paper does not reflect the unmanageable size of the topic (indeed, the topic could easily be made to be rather narrow in scope if desired) but rather the wealth of excellent arguments and evidence that exist on this topic that would make it enjoyable for an entire season. We were rather exuberant in our desire to provide an in-depth discussion of this controversy. To assist you, we have streamlined our reasons to support this controversy here. The subsequent sections offer more depth and evidence of these claims. We propose that the 2013-2014 debate resolution examines the restriction of presidential war powers. • The controversy is timely but not too timely – the news is dominated by unchecked presidential war powers such as UAV drone strikes, warrantless wiretaps, and preventive war powers. However, in the wake of the 9-11 attacks, Congress and the Courts have abdicated their constitutional duties as checks to executive authority and allowed unconstrained presidential war authority in the fight against terror. As a result, there is little chance that the status quo will change any time soon and guarantees that the plan will make a significant change from the status quo. • Clearly defined controversy with clear uniqueness – Recent CEDA forums discussions of controversies and debate topics have maintained that controversy papers should require a large degree (or quality) of change by the affirmative, have solid uniqueness that does not allow the affirmative to argue that their change is similar to some action being taken in the status quo, and that there be a clearly identifiable “disadvantage to the resolution.” We believe this controversy paper includes all three of those elements. First, there is no chance that Congress or the Courts will limit the president’s war powers in the status quo, thus making the action taken significant and controversial. Second, there is a clear disadvantage to the topic – constraining presidential war powers undermines U.S. ability to respond to emerging rogue nation and non- state threats.
Presidential War Powers 4
• It is a legal controversy without being solely a courts topic - Issues surrounding presidential constitutional authority as commander in chief implicate many of the most contested issues in constitutional law. As such, the controversy raises a number of important legal questions and requires students to engage legal literature to research the debate. However, what is nice about this controversy is that it does not have to be a courts topic. The advantage of this is that we can debate important liberal legal issues without having to debate Courts Politics, Legitimacy, or Activism DAs. While there is nothing inherently wrong with these arguments, they have a tendency to dominate legal debate topics. Our proposal allows us to access the educational benefits of a legal topic without having to debate the typical set of generic legal strategies.
Presidential War Powers 5
“…comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country” – Supreme Court Justice Robert Jackson, 1952.
I. Introduction
On March 7, Senator Rand Paul (R-Ky.) began a 13-hour long filibuster of President Obama’s nomination of John Brennan as head of the CIA. The purpose of the filibuster was to “dra[w] attention to deep concern on both sides of the aisle about the administration’s use of unmanned aerial vehicles (UAVs) in its fight against terrorists and whether the government would ever use them in the United States.” 1 While the filibuster eventually ended and Brenan was successfully nominated, Paul’s efforts received somewhat surprising bipartisan praise, especially from conservative and libertarian critics and civil-liberties-minded liberals and progressives. For example, Senator Jeff Merkley (D-OR), praised Paul for his “fight for an important ideal” 2 ACLU senior legislative counsel Christopher Anders was hopeful that the filibuster was “part of Congress reasserting its constitutional role of checks and balances between the president and the Congress. For too long on national security issues we’ve had congress out to lunch.” 3 Anders highlights the central controversy surrounding the Obama administration’s use of UAVs and definition of “enemy combatants”: the ever expanding scope of presidential war powers. While Anders holds out hope that this act will restore the constitutional checks and balances between the legislative and executive branches over national security and war powers, several trends suggest that this rare congressional criticism against the deployment of executive authority will not be sustained. For instance, senior GOP leaders such as Senators John McCain (R-AZ) and Lindsey Graham (R-SC) quickly rebuked Paul, arguing that expansive presidential powers are necessary for the president to effectively fight the War on Terror. 4 This response is not surprising, as it continues a long trend of Congress abdicating its Constitutional responsibility in restraining excessive presidential power. 5 In the last four decades, over 100 military actions were taken by the president without significant congressional
1 Ed O’Keefe and Aaron Blake, “Paul’s filibuster in opposition to Brennan, drone policy ends after nearly 13 hours,” Washington Post, March 7, 2013, http://www.washingtonpost.com/politics/rand-paul-conducts-filibuster-in- opposition-to-john-brennan-obamas-drone-policy/2013/03/06/1367b1b4-868c-11e2-9d71- f0feafdd1394_story.html 2 Z. Byron Wolf, “Rand Paul Wins Applause From GOP and Liberals,” ABC News, March 7, 2013, http://abcnews.go.com/blogs/politics/2013/03/rand-paul-wins-applause-from-gop-and-liberals/ 3 ibid 4 Richard Stevenson and Ashley Parker, “A Senator’s Stand on Drones Scrambles Partisan Lines,” New York Times, March 7, 2013, http://www.nytimes.com/2013/03/08/us/politics/mccain-and-graham-assail-paul-filibuster-over- drones.html?pagewanted=all&_r=0 5 Peter Irons, War Powers: How the Imperial Presidency Hijacked the Constitution, New York: Metropolitan Books, 2005. Presidential War Powers 6
opposition 6, leading noted historian Arthur Schlesinger Jr. to contend that the growth in presidential national security and war powers occurred “as much a matter of congressional acquiescence as of presidential usurpation.” 7 As former U.S. senator and Secretary of the Navy, Jim Webb notes in 2013, congressional abdication of its role in balancing ever expanding presidential powers has grown worst overtime and is in clear opposition to the Framers’ intent: Jim Web , “Congressional Abdication,” National Interest, March-April 2013 , http://nationalinterest.org/article/congressional-abdication-8138?page=1
IN MATTERS of foreign policy, Congress , and especially the Senate, was designed as a hedge against the abuses exhibited by overeager European monarchs who for centuries had whimsically entangled their countries in misguided adventures . America would not be such a place. The Constitution would protect our governmental process from the overreach of a single executive who might otherwise succumb to the impulsive temptation to unilaterally risk our country’s blood, treasure and international prestige. Congress was given the power to declare war and appropriate funds, thus eliminating any resemblance to European-style monarchies when it came to the presidential war power. Importantly and often forgotten these days, Article I, Section 8 of the Constitution was also carefully drawn to give Congress, not the president, certain powers over the structure and use of the military. True, the president would act as commander in chief, but only in the sense that he would be executing policies shepherded within the boundaries of legislative powers. In some cases his power is narrowed further by the requirement that he obtain the “Advice and Consent” of two-thirds of the Senate. Congress, not the president, would “raise and support Armies,” with the Constitution limiting appropriations for such armies to no more than two years. This was a clear signal that in our new country there would be no standing army to be sent off on foreign adventures at the whim of a pseudomonarch. The United States would not engage in unchecked, perpetual military campaigns. Congress would also “provide and maintain a Navy,” with no time limit on such appropriations. This distinction between “raising” an army and “maintaining” a navy marked a recognition of the reality that our country would need to protect vital sea-lanes as a matter of commercial and national security, confront acts of piracy—the eighteenth-century equivalent of international terrorism—and act as a deterrent to large-scale war. Practical circumstances have changed, but basic philosophical principles should not. We reluctantly became a global military power in the aftermath of World War II , despite our initial effort to follow historical patterns and demobilize. NATO was not established until 1949, and the 1950 invasion of South Korea surprised us. In the ensuing decades, the changing nature of modern warfare, the growth of the military-industrial complex and national-security policies in the wake of the Cold War all have contributed to a mammoth defense structure and an atrophied role for Congress that would not have been recognizable when the Constitution was written . And there is little doubt that Dwight D. Eisenhower , who led the vast Allied armies on the battlefields of Europe in World War II and who later as president warned ominously of the growth of what he himself termed the “military- industrial complex,” is now spinning in his tomb. Perhaps the greatest changes in our defense posture and in the ever-decreasing role of Congress occurred in the years following the terrorist attacks on U.S. soil of September 11 , 2001. Powers quickly shifted to the presidency as the call went up for centralized decision making in a traumatized nation where quick, decisive action was considered necessary . It was considered politically dangerous and even unpatriotic to question this shift, lest one be accused of impeding national safety during a time of war. Few dared to question the judgment of military leaders, many of whom were untested and almost all of whom followed the age-old axiom of continually asking for more troops, more money and more authority. Members of Congress fell all over themselves to prove they were behind the troops and behind the wars.
Besides this general relinquishment of its constitutional responsibilities, Congress tends to hold a “situational” view of constitutionalism, which supports and expands executive powers when one’s party resides in the White House or in times of emergency and crisis. 8 Thus, while Paul’s stand against the
6 Gene Healy, “10. Reclaiming the War Power,” Cato Handbook for Policymakers, 7th edition, 2009, http://www.cato.org/cato-handbook-policymakers/cato-handbook-policymakers-7th-edition-2009 7 Cited in ibid. 8 Ibid. Presidential War Powers 7
executive’s expansion of war powers was newsworthy, it is rather unlikely to radically alter the long trend growth in presidential powers. II. The Status Quo and the Central Controversy A. The Status Quo & Uniqueness What interested us in crafting a presidential war powers proposal in the first place was that the central controversy surrounding the topic dominates the news today. Countless libertarian and progressive critics have attacked Obama’s unchecked use of drone attacks, expansion of terrorist targeting policy, and maintenance of the Guantanamo Bay detention center ever since he took office. Despite hopes that the Obama administration would reverse a number of Bush Administration war on terror (WoT) policies that massively increased the scope of presidential authority without congressional oversight, Obama has merely tinkered with some details of those policies while increasing the use of others. Jack Goldsmith , Henry L. Shattuck Professor of Law at Harvard University , The Accountable Presidency, THE NEW REPUBLIC (Feb. 1, 2010 ), http://www.tnr.com/article/books- and-arts/the-accountable-presidency
The increasingly powerful but increasingly law-bound presidency is the key to understanding the remarkable extent to which President Obama has continued the counterterrorism policies of his predecessor. Obama has cut back the Bush program on interrogation and black sites, though not as much as most people think. He has supported tiny congressional modifications to military commissions, but he has persisted in their use. He has controversially insisted on a civilian trial for Khalid Shaikh Mohammed, but this is less of a change than critics suggest, as the Bush administration often used civilian trials for terrorists , including the September 11 plotter Zacarias Moussaoui, the Al Qaeda agent José Padilla, the “shoebomber” Richard Reid, and the “American Taliban” John Walker Lindh. Obama has replicated Bush’s legal arguments concerning detention, habeas corpus, and state secrets. And he has embraced, and indeed ramped up, the Bush approach to targeted killing and rendition .
Because of the Obama administration’s embrace of expanded presidential powers, the status quo remains strongly in favor of high executive authority. Additionally, it remains highly unlikely that any meaningful action will be taken in the status quo to reduce presidential powers. In Congress, there is widespread fear that any opposition to the President will be highly unpopular with the public and that Congress will be held accountable for any future security problems or failures. Even when highly controversial policies like Guantanamo Bay, Abu Ghraib, and “black” detention sites are discussed in Congress, little to no meaningful action was taken in response. 9 Additionally, in 40 years, federal courts have consistently refused to side either way in these War Power Resolution (WPR) balance of power
9 Christopher Schroeder, “Loaded Dice and Other Problems: A Further Reflection on the Statutory Commander in Chief,” Indiana Law Journal, Fall, 2005, pp. LN. Presidential War Powers 8
disputes. 10 Even recently, when the Supreme Court made three decisions – Hamdi v. Rumsfeld , Rumsfeld v. Padilla , and Rasul v. Bush – that examined the Bush administration’s claim that Commander in Chief powers allowed the administration to ignore congressional limitations on executive powers, these decisions either did not reject the Bush administration’s justification or they simply turned aside the question without reason why. As a result, the Court’s decisions have had little impact on the balance of power regarding war powers. 11 And this is part of a long historical trend. As Peter Coffman, an attorney for the US Department of Justice, summarizes the issues involved (which highlight the broad advantage and disadvantage ground of the topic – democratic balance of powers vs. strong presidency acting swiftly on national security matters) and the uniqueness of the debate about Commander-in-Chief powers, the debate between proponents and opponents 12 of strong presidential powers has not been resolved and the uniqueness question is rather clear for this topic: Peter D. Coffman , attorney, US Depart of Justice, 1995 , BOOK REVIEW: POWER AND DUTY: THE LANGUAGE OF THE WAR POWER War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath. By John Hart Ely, Cornell Law Review, May, pp. LN.
Since the Korean War, voices inside and outside of government have decried presidentially initiated military action in Haiti, Somalia, the Persian Gulf, Panama, the Gulf of Sidra, Lebanon, the Dominican Republic, Indochina, and elsewhere n1 as encroachments on Congress's "Power ... to declare War ." n2 Others perceive not presidents actively usurping legislative power but rather an acquiescent Congress "sitting back and letting the President act in its place ." n3 On the other hand, proponents of presidential power have argued that the President holds, through practice or necessity, an inherent power to [*1237] initiate war in a variety of circumstances, and that an aggressive Congress treads on that right . n4 As Justice Jackson noted in 1951, the boundary dispute between Congress and the President in foreign affairs is not a recent development : A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. And court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way . n5 Neither side has moved the dispute substantially closer to a resolution in succeeding years . n6 Congressional proponents continue to rely upon the specific constitutional grant of the "decisional " n7 war power and the record of debates upon this grant at the Constitutional Convention . n8 Supporters of presidential initiative counter with the textual grants of the Executive power and the Commander-in-Chief role to the President, buttressed with realist arguments about the necessity of [*1238] a strong
10 Ibid. 11 David J. Barron, Professor of Law, Harvard Law School, & Martin S. Lederman, Visiting Professor of Law, Georgetown University Law Center, “THE COMMANDER IN CHIEF AT THE LOWEST EBB - FRAMING THE PROBLEM, DOCTRINE, AND ORIGINAL UNDERSTANDING,” Harvard Law Review, January 2008, pp. LN. 12 Some review of the debate between strong president proponents/opponents is found Robert Bejesky, “WAR POWERS PURSUANT TO FALSE PERCEPTIONS AND ASYMMETRIC INFORMATION IN THE "ZONE OF TWILIGHT", St. Mary’s Law Journal, 2012, pp. LN. Presidential War Powers 9
Presidency in the modern world . n9 Supreme Court jurisprudence has not conclusively placed any of these argumentative gambits off limits . n10 As a result, ample numbers of intelligent lawyers continue to hold each position on the basis of "respected [legal] sources on each side of [the] question."
Consequently, the controversy is both timely and involves a broad range of potential affirmative ground advocated by both the staunchest of conservative constitutionalists to ultra-liberal critics of the security- state. The negative is dominated by national security hawks and advocates of a strong presidency who demand that any and all action be taken to counter contemporary threats of global terrorism and weapons of mass destruction (WMD) proliferation. As such, there is a clear, robust, and distinct controversy that has a consistent status quo and uniqueness. B. Stakes of the Controversy
The heart of the controversy is whether or not we should have a strong executive branch that can execute foreign policy and war decisions in a rapid and unhindered manner or if we should have a stronger balance of powers between the executive, legislative, and judicial branches over these matters. According to Andru Wall, Senior Associate with Alston & Bird LLP and former senior legal advisor for U.S. Special Operations Command Central in 2011, the debate about the scope of presidential authority remains highly controversial because it involves many of the most contentious constitutional issues:
This Constitutional separation or balancing of power between the President and Congress with respect to war powers sparked intense debate nearly as soon as the Constitution was ratified. Discussions of the President's constitutional authority as commander in chief implicate "some of the most difficult, unresolved, and contested issues in constitutional law. " n31 This debate is perhaps best pictured as a Venn diagram: some assert a circle of "inherent" Presidential power, some favor a circle of Congressional checks on "imperial" Presidential power, while others see a Constitutional overlap or balancing of powers between the two branches . One scholar astutely observes that "[w]riters on the relative powers of the presidency versus the Congress almost invariably lapse into advocacy when they comment on the textual, historical or functional bases of war powers ." 13
As Wall notes, central to this debate is the appropriate constitutional balance of power between the executive and legislature. Beginning with executive actions taken during Thomas Jefferson’s Barbary Wars, James Madison’s War of 1812, and the Civil War, there has been a constant struggle between the executive and congress over the appropriate balance between the two branches in foreign and war policy. 14 Following World War II, Congress largely acquiesced to the continued expansion of presidential power that lead to the Korean and Vietnam wars. However, as a result of the Vietnam War, Congress
13 “Demystifying the Title 10-Title 50 Debate: Distinguishing Military Operations, Intelligence Activities & Covert Action,” Harvard National Security Journal, http://harvardnsj.org/wp-content/uploads/2012/01/Vol.-3_Wall1.pdf. 14 Daniel C. Diller & Stephen H. Wirls, “Chapter 4: Commander in Chief,” in Powers of the Presidency (2 nd ed.), Washington, D.C.: Congressional Quarterly, 1997, p. 166-169. Presidential War Powers 10
enacted the War Powers Resolution (WPR) 15 (HJ Res. 542, PL 93-148) in November 1973, overriding President Nixon’s veto, in order to “reassert its constitutional prerogative to authorize all significant military engagements.” 16 As the “centerpiece of Congress’s effort to claim a role in foreign policy,” the WPR, requires the Executive to consult with Congress prior to the use of military force and to report to Congress within forty-eight hours of the start of hostilities. More importantly, the WPR requires the Executive to terminate the use of force (1) after sixty days if Congress has not subsequently ratified that use of force, or (2) even earlier if Congress passes a resolution requiring termination.17
Yet, even this joint resolution was opposed by both conservatives and liberals. Liberal critics maintained that the WPR enhanced rather than restricted presidential power by given the president sanction to use military power for almost any use for up to ninety days. 18 Conservatives argued that the WPR restricted presidential foreign policymaking too much, reducing necessary flexibility in a constantly changing strategic environment. 19 Even today, almost 40 years after its enactment, the WPR remains a source of constant controversy over presidential authority. As Richard Grimmett, specialist in international security, explains in 2012,
Richard Grimmett, 2012 , “The War Powers Resolution: After Thirty-Eight Years,” Congressional Research Service, Sept 24, www.fas.org/sgp/crs/natsec/R42699.pdf.
The record of the W ar Powers Resolution since its enactment has been mixed, and after 30 years it remains controversial. Some Members of Congress believe the Resolution has on some occasions served as a restraint on the use of armed forces by Presidents , provided a mode of communication , and given Congress a vehicle for asserting its war powers. Others have sought to amend the Resolution because they believe it has failed to assure a congressional voice in committing U.S. troops to potential conflicts abroad . Others in Congress, along with executive branch officials, contend that the President needs more flexibility in the conduct of foreign policy and that the time limitation in the W ar Powers Resolution is unconstitutional and impractical. Some have argued for its repeal .
Thus, debates about reducing presidential power would provide a critical examination of one of the most fundamental controversies in government policymaking and constitutional checks and balances.
15 The WPR is often referred to as the War Powers Act, the name of the Senate legislation that was passed, even though it was passed as a Joint Resolution that became the WPR. 16 Diller & Wirls, 177. 17 Michael Benjamin Weiner, 2007, “A Paper Tiger with Bite: A Defense of the War Powers Resolution,” Vanderbilt Jrnl of Transnatl Law, pp. LN. 18 Diller & Wirls, 179. 19 Richard Grimmett, 2012, “The War Powers Resolution: After Thirty-Eight Years,” Congressional Research Service, Sept 24, www.fas.org/sgp/crs/natsec/R42699.pdf. Presidential War Powers 11
Given that presidential powers over foreign policy and war have steadily increased since the founding of this country, what is the danger of the contemporary expansion of authority since 9-11? At a broad level, the entire system of checks and balances and separation of powers between the three federal branches that serve as a check to tyranny, unlimited federal power, and imperial ambition.20 These unchecked powers threaten due process, the nation’s democratic design, and risk a never ending state of warfare. As von Hoffman explains, Constantine von Hoffman, February 07, 2013 , “Secret Wars—Cyber or Otherwise— Destroy Democracies,” http://blogs.cio.com/security/17782/secret-wars%E2%80%94cyber-or- otherwise%E2%80%94destroy-democracies
What both the drone assassinations and cyberwar powers have in common is a total lack of outside review. The administration claims U.S. citizen Anwar al-Awlaki was given "due process" before being killed in a drone strike . There is no definition of due process that fits the policies described in the just-released legal rationalization. No one—not the courts, not Congress—got to review the decision , even ex post facto. We should never forget that strike killed two American citizens. The other was Abdulrahman al-Awlaki, Anwar’s 16-year-old son. He was guilty of riding in a car with his father. The cyberattack capabilities are at a similar level of lethality , The Times tells us: "One senior American official said that officials quickly determined that the cyberweapons were so powerful that—like nuclear weapons— they should be unleashed only on the direct orders of the commander in chief ." Again, without any advice or consent from what used to be known as our elected representatives . As James Madison wrote : " In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department . Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy." I found that quote in an incredible post by Charlie Pierce on Esquire’s politics blog. It ends by describing the other cost of assassinations and secret cyberwars : " Government secrecy and deception blurs the line between genuine fears over the decline of civil liberties, and the wild-assed fantasies of the black-helicopter crowd. If you want to see the true destructive power of Droneworld in this country, look deeply into the Id of the democratic political imagination. There are angry, feral creatures in there, stalking the ruins, howling for blood .
Particularly in a post 9-11 world, these powers allow for constant preemptive strikes and perpetual warfare because “there is no clear point when hostilities cease, no clear boundary to the battlefield, no clear set of combatants….prone to…[a] hasty decision to forestall some emergency.” 21 As a result, the risk of a permanent and unchecked state of war and emergency is very real, which accesses a great number of policy and critical literature impacts. 22
20 Donald R. Wolfensberger, “The Return or the Imperial Presidency?” The Wilson Quarterly, Vol. 26, No. 2 (Spring, 2002), pp. 36-41, JSTOR 21 Andrew Rudalevig, Associate Professor of Political Science, Dickinson College, 2005, The New Imperial Presidency, Ann Arbor, U of Mich Press, p. 272. 22 Jack Goldsmith, “Obama: Counterterrorist-in-Chief,” Defining Ideas, July 19, 2012, http://www.hoover.org/publications/defining-ideas/article/122876 Presidential War Powers 12
Overall, the stakes of the controversy – both the advantage and disadvantage (the disadvantage is outlined in more detail later in the document) –are best summarized by Seth Weinberger: Seth Weinberger, Assistant Professor in the Department of Politics and Government at the University of Puget Sound , “Balancing War Powers in an Age of Terror,” The Good Society, Volume 18, Number 2, 2009 (Proquest)
The question of allocating war powers between the president and Congress is a critical one. If too much power is concentrated in the hands of the executive, the country risks undermining basic constitutional protections of individual freedoms and eroding the democratic nature of the republic; if too much of a role is given to Congress, the country may not be able to effectively develop policies to protect itself . And when there is no clear theory guiding the actions of the government, policy muddles along, with the executive branch taking the lead by putting an idea into action and hoping that it will withstand judicial scrutiny. Thus there is a need for a balanced theory of war powers that respects the constitutional allocation of power and heeds the advice of President Ford.
III. Mainstream options for policy change –Limitations/Restrictions on Presidential War Powers
A. Statutory Limitations or Restrictions as a Mechanism
The literature on reducing presidential war powers outlines two basic approaches to limiting the use of these powers: (1) create new limitations or restrictions on the president’s war powers (or new judicial interpretation of existing statutes); and (2) use Congress’s power of the purse to eliminate funding for unauthorized presidential military operations. Because eliminating funding is at best reactionary (although it might serve as potential counterplan ground), we focus on the first approach – creating new statutory limitations on presidential power. While this will be discussed more at length in a later discussion about agents, we largely focus on congressional action for simplicity and because much of the literature discusses this agent. But this in no way should be read to exclude judicial interpretations of statutory limitations that would limit presidential war powers. Indeed, we contend that a potential resolution should allow for both congressional and judicial response. There is a very healthy debate in peer-reviewed journals about structural limits on executive war powers and legal experts come down fairly strongly both for and against these restraints.23 A debate focused on the mechanism of increasing statutory regulations on presidential war powers does not
23 A fascinating part of the controversy is simply the broader solvency debate about whether structural limits, when actually put into place, actually constrain presidential action. E.g., arguing that structural limits do not work, see Deborah Pearlstein, Visiting Scholar, Woodrow Wilson School for Public and International Affairs, Princeton University; Director, U.S. Law and Security Program, Human Rights First, 2005 “Finding Effective Constraints on Executive Power: Interrogation, Detention, and Torture,” Indiana Law Journal, Fall, 2005, pp. LN. For arguments that structural limitations succeed, see Matthew Fleischman, “A FUNCTIONAL DISTRIBUTION OF WAR POWERS,” New York University Journal of Legislation and Public Policy, 2010, pp. LN. Presidential War Powers 13
challenge the president’s inherent authority to respond to national security matters. However, it does raise an important debate about how to appropriate share and regulate military and foreign affair duties between the executive and legislative branches. As Neil Kinkopf contends, Neil Kinkopf , Associate Professor, Georgia State University College of Law, 2005 , “The Statutory Commander in Chief,” Indiana Law Journal, Fall, pp. LN.
The first constitutional question one must ask when interpreting the extent of presidential power over military and foreign affairs is how to read the Constitution's allocation of powers between the President and Congress. There are two possible [*1170] approaches: one focuses on the way the Constitution divides power among the branches and reads those powers as separate and distinct--call this the exclusivity model; the other focuses on the way the Constitution contemplates that power will be shared among the branches--the reciprocity model . For example, the Constitution grants the President some powers relating to war--notably the commander-in-chief power--and grants others to Congress, such as the power to make rules for the regulation and government of the land and naval forces. The exclusivity view reads these as separate and distinct powers, which means that Congress may not make rules and regulations that burden the President's ability to act as commander in chief. The reciprocity model views these powers as components of a shared war power. The Constitution, on this view, means for the President and Congress each to wield aspects of the war power , which means that the powers should be understood in a way that accommodates the exercise of each and recognizes that they overlap and interrelate. While debate over these competing conceptions stretches back to our early constitutional history, n2 the reciprocity model has come to be accepted as the appropriate way to approach questions of power . n3 The model has its most famous articulation in Justice Jackson's concurring opinion in Youngstown Sheet & Tube. n4 "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." n5 The reciprocity model follows from James Madison's formulation of the principle of separation of powers. Those opposing the ratification of the Constitution argued that the document mingled powers among the President and Congress, thus violating the principle. Madison rejoined that this objection misapprehends the separation of powers principle. The separation of powers principle does not forbid the blending of power between the branches: [Montesquieu] did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. n6 [*1171] Nevertheless, the exclusivity model occasionally rears its head. Most notoriously, the Department of Justice employed this model in its original Torture Memo. n7 In that memorandum, the Office of Legal Counsel (OLC) opined that the anti-torture statute could not prohibit the President from ordering the use of torture in interrogations of enemy combatants, because such a prohibition would violate the President's constitutional powers. OLC opined that the Constitution assigns the war power to the President. n8 It failed even to cite to Justice Jackson's seminal opinion from Youngstown. This is no mere violation of citation etiquette, for it led OLC to fail to acknowledge that Congress has any relevant authority whatsoever. Had OLC employed Justice Jackson's framework, OLC would have been unable to avoid recognizing Congress's relevant powers, including the power to make rules to govern the military and to define and punish violations of the law of war. As there is no plausible interpretation that these powers are irrelevant to the validity of the prohibition on torture, the application of the correct interpretive model--reciprocity rather than exclusivity--has decisive significance. Despite the apparent resolution in favor of the reciprocity model, OLC has continued to apply the exclusivity model. Although the Department of Justice eventually withdrew the Torture Memo, n9 OLC continues to invest the dispute with significance by following the exclusivity model. The memorandum withdrawing the Torture Memo rescinds the section dealing with the President's commander-in-chief power only because it regards the discussion to have been unnecessary. n10 The withdrawing memo, however, does not repudiate or even question the substance of the Torture Memo's reasoning on the issue of presidential power. Moreover, contemporaneous OLC opinions--which have been neither repudiated nor withdrawn- -continue to employ the exclusive approach to presidential power. The continuing salience of the controversy over how to construe the President's powers relating to foreign and military affairs has been most recently highlighted in the debate over the legal validity of President Bush's domestic surveillance program . The particulars of the program remain secret, but the broad parameters pose the issues quite starkly. The President has authorized the National Security Agency (NSA) to engage in domestic surveillance by wire-tapping communications between persons within the United States (including, but not limited to, United States citizens) and persons outside the United States where one party to the communication is "linked to al Qaeda or related terrorist organizations." n11 The Justice Department has taken the position that [*1172 ] the President has "inherent constitutional authority" to engage in surveillance designed to protect national security . n12 This much is, or should be, uncontroversial. It is widely accepted that the President holds a protective power n13 to respond to emergencies that threaten national security. What is controversial is the claim that this power is exclusive and not subject to regulation or limitation . This assertion was the foundation of the Torture Memo n14 and underlies the Justice Department's defense of the domestic surveillance program. The domestic surveillance program directly implicates the controversy over the nature of the President's inherent constitutional powers because it runs
afoul of a specific statutory prohibition , the Foreign Intelligence Surveillance Act (FISA). FISA is a comprehensive regulation of electronic surveillance within the United States. FISA requires that the government acquire a warrant from a special court (the Foreign Intelligence Surveillance Court) before undertaking any electronic surveillance within the United States. n15 By the terms of the act, FISA is the "exclusive means by which electronic surveillance . . . may be conducted." n16 FISA sets forth several categories of exception to the warrant requirement, and the nature of these exceptions underscores FISA's comprehensive scope. For example, FISA specifically addresses itself to the context of wartime surveillance, authorizing warrantless searches for a fifteen-day period after war is declared. n17 Moreover, FISA provides that in an emergency situation, surveillance may commence before a warrant is obtained, as long as a warrant application is made within Presidential War Powers 14
seventy-two hours after surveillance is initiated. n18 If the President's inherent authority to engage in national security surveillance is exclusive, in that it is not susceptible to statutory regulation , then FISA is
unconstitutional in requiring that such surveillance be conducted only pursuant to a warrant . If, on the other hand, the President's inherent power is not exclusive, Congress retains power to impose regulations that apply to the President's exercise of his authority . Here, Congress has authority to regulate the instrumentalities of interstate and foreign commerce, which paradigmatically include lines of communication such as cell phones, telephones, and email . n19 Moreover, the agencies that the President would deploy to conduct the surveillance are created and structured by Congress pursuant to its substantive powers generally under Article I, Section 8, and especially under the [*1173] Necessary and Proper Clause. n20 Congress is empowered by these authorities to determine how those agencies will and will not operate. Under a reciprocal understanding of constitutional power, the appropriate inquiry is suggested by Justice Jackson's concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer. "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." n21 The Supreme Court refined this inquiry in Morrison v. Olson, asking whether the statute in question "disrupts the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions." n22 Given the secrecy of the NSA surveillance program, it is impossible to offer a definitive conclusion to this question. Nevertheless, none of the Bush Administration's burgeoning attempts to defend the program would satisfy the standard. n23
While Article II, Section Two of the U.S. Constitution establishes the broad parameters of presidential war powers, they are not defined with much specific detail. For instance, the Commander in Chief powers are described as: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States.” Because of this, statutes are what define the full extent and limits of presidential authority. As Kinkopf continues, Neil Kinkopf , Associate Professor, Georgia State University College of Law, 2005 , “The Statutory Commander in Chief,” Indiana Law Journal, Fall, pp. LN.
This symposium asks us to consider the scope and limits of presidential power in the context of war and terrorism. This question strongly suggests a constitutional focus. n1 Because the Constitution establishes the presidential office and sets forth its powers and duties, it is the appropriate starting point for considering this question. The Constitution alone, however, does not get us very far . A wide range of statutes bear on the President's power in this realm and serve to define the
extent and limits of his power . As a practical matter, then, the question of presidential power in the context of war and terrorism is one of statutory interpretation . Recognizing the centrality of statutory interpretation in this crucial area, a number of scholars have turned their attention to this question . From their writings, a consensus appears to be emerging on some important foundational points . First, these scholars claim that the President is entitled to deference. Second, where assertions of presidential power implicate individual constitutional rights, these scholars claim that the President's assertion must be founded on a statute that includes a clear statement of authority .
Courts can apply statutory restrictions by interpreting laws in ways to now apply to current war powers.
David J. Barron, Professor of Law, Harvard Law School, & Martin S. Lederman, Visiting Professor of Law, Georgetown University Law Center, 2008 , “THE COMMANDER IN CHIEF AT THE LOWEST EBB - FRAMING THE PROBLEM, DOCTRINE, AND ORIGINAL UNDERSTANDING,” Harvard Law Review, January, pp. LN.
4. Judicial Enforcement of Implied Statutory Restrictions. - The way the Supreme Court approaches war powers generally, when combined with the increased mass of potentially relevant legislative restrictions on the conduct of this military conflict, further increases the Presidential War Powers 15
likelihood that the "lowest ebb" issue will be joined in the future . Principles of deference to executive authority tend to dominate academic discussion of statutory interpretation and war powers. As we have indicated, however, Hamdan, Youngstown, and other modern war powers cases demonstrate that the Court cannot be counted on to give the President the benefit of the doubt. And in many war powers cases, the Court has been perfectly willing to construe ambiguous statutory language against certain background rules that it presumes Congress intended to honor , n84 including a presumption that the Executive must [*719] comply with the laws of war. n85 This general and longstanding judicial willingness to find implied limitations in ambiguous texts concerning the use of military force and national security powers is sometimes controversial . But whether justified or not, such an interpretive approach is of particular import now, given the sheer mass of preexisting statutes potentially applicable to the conflict with al Qaeda and the likelihood that this body of law will grow. Executive branch lawyers may be hard-pressed to advise their client agencies that creative construction can overcome the apparent statutory restrictions, at least if there is a reasonable prospect of judicial review (as there often will be in the war on terrorism due to its peculiar domestic connections). Instead, the prospect of judicial review will impel these lawyers to advise that the courts could well construe the potentially restrictive language to impose hard constraints on the Executive's preferred course of conduct - and that only the assertion of a superseding constitutional power of the President could, possibly, overcome such limits. Thus, the relatively weak deference the Court has long shown the President in many war powers cases, when combined with the relatively high likelihood in the war on terrorism of the applicability of restrictive but ambiguous statutory language and a justiciable case to hear, make constitutional assertions of preclusive executive powers a more likely occurrence than war powers scholarship typically assumes.
Although the status quo has a number of statutory limitations on presidential war powers, these restrictions are ineffective due to political compromises made during their crafting. This is why an academic debate about what should be the limits on presidential power rather than what would they be is worthwhile. Christopher Schroeder, Charles S. Murphy Professor of Law and Professor of Public Policy Studies, Director of the Program in Public Law, Duke University, 2005 , “Loaded Dice and Other Problems: A Further Reflection on the Statutory Commander in Chief,” Indiana Law Journal, Fall, pp. LN.
When Congress has the political will to take a more proactive approach to problems in the areas of foreign and military affairs, it often does not fare much better in establishing parity in any supposed partnership with the President . As already noted, legislation is the product of compromises, and Presidents almost always have supporters within the legislative chambers who will work with the President's forces to push for such compromises. Occasionally, political stars may align to produce a genuinely reciprocal arrangemen t, as they did when the Foreign Intelligence Surveillance Act (FISA) was enacted with the full support of President Carter and his Attorney General, Griffin Bell. n28 Such moments, however, are extremely rare . Much more common are situations like enactment of the War Powers Resolution . n29 Because [*1330] presidential opposition prompted compromises, the Resolution did not accomplish its objective (whatever one might think of its merits), namely to "put the pressure where it should be--on the [P]resident to start thinking about removing armed forces sixty days after he has committed them to a hostile situation;" instead it "puts pressure on Congress to declare that United States forces are 'in hostilities' in order to trigger the sixty-day clock for troop removal." n30
B. Broad Statutory Approaches to Restrict the Use of War Powers
More specific statutory limitations that can be placed on the use of executive war authority will be discussed in more detail after this section of the paper. However, we would like to begin by listing what some broad proposals to limit the use of presidential war powers would look like. While the Presidential War Powers 16
examples here are in the context of reforming the WPR, they also represent most of the mainstream policy options for limiting presidential war powers. 1) Return to the original Senate version of the WPR and eliminate the delay before presidential notification or declaration of war . This would require prior notification to and authorization by Congress to any use of U.S. military forces without a declaration of war except to prevent a direct attack on the U.S. or its forces abroad. In particular, noted foreign policy experts Leslie Gelb and Anne-Marie Slaughter, among others, suggest this option. 24
2) Shorten the Time Limitation before Consultation. Rather than eliminating the time period over which the president can maintain forces in a conflict without congressional approval, some scholars call for shortening that time period from 60 to 30 days. 25
3) Increase oversight/create a permanent consultation group in Congress for war powers issues. Senators Byrd, Nunn, Warner, and Mitchell have proposed such an option. 26 In the specific context of UAV drone strikes, mainstream proposals for change include creating a “drone court” with the federal judiciary or a permanent congressional committee, like the oversight created by the Foreign Intelligence and Surveillance Act (FISA), to review executive decisions about drone targets and deployment. 27
4) Create legal standing for members of Congress to sue the executive for violations of the WPR. This option would allow any member of Congress to bring an action in the U.S. District Court for the District of Columbia for judgment and injunctive relief on the grounds that the President or U.S. forces have violated the WPR. In the status quo, courts routinely reject such cases on the grounds that they lack standing to sue. 28
5) Repeal parts or all of PL 107-40, the 2001 Authorization for Use of Military Force (AUMF), the congressional consent to the Bush and now Obama administration to use all necessary military force to fight the War on Terror. The AUMF has been used to as evidence of congressional consent for most of the presidential powers discussed in this paper. For instance, Representative Barbara Lee (D-CA) introduced H.R. 198, a measure to repeal the AUMF. 29 Our discussion of UAVs/drones also discusses this as a solvency mechanism. Parts or the entirety of this AUMF can be revised or repealed.
24 “Declare War: It's time to stop slipping into armed conflict,” Foreign Affairs, Nov 2005, http://www.theatlantic.com/magazine/archive/2005/11/declare-war/304301/. Also see Gene Healy, “10. Reclaiming the War Power,” Cato Handbook for Policymakers, 2009, 7th edition, http://www.cato.org/cato- handbook-policymakers/cato-handbook-policymakers-7th-edition-2009 25 Grimmett. 26 Ibid. 27 E.g., Carlo Munoz, “Sens. Feinstein, Leahy push for court oversight of armed drone strikes,” The Hill, Feb 10, 2013, http://thehill.com/blogs/defcon-hill/policy-and-strategy/282033-feinstein-leahy-push-for-court-oversight- of-armed-drone-strikes- 28 Grimmet. 29 Norman Solomon, “Congress: End Endless War and Stop Becoming “the Evil That We Deplore,” Truth-Out, Feb 24, 2013, http://truth-out.org/news/item/14755-congress-end-endless-war-and-stop-becoming-the-evil-that-we- deplore Presidential War Powers 17
This is obviously not an exhaustive list of options, merely a sampling of the types of reforms recommended. The next sections provide more specific suggestions for each area we explore. C. Specific Approaches to Restrict the Use of War Powers 1. Deploy offensive forces - UAV/Drone Strikes
The use of UAV drone strikes is a highly controversial area that could produce excellent debates. As David Adler writes, “The ongoing controversies surrounding President Barack Obama's use of drones to target ‘enemies’ of the United States raises anew the question of the president's legal authority to conduct the war on terror.” 30 Moreover, “it has broad implications…for the constitutional allocation of war powers and the responsibilities of Congress and the president in the management and conduct of this, or any, war.”31 These were among the reasons cited by presidential candidate Obama for the need to reform Bush’s counterterrorism practices. However, despite these promises President Obama has expanded Bush’s War on Terrorism, especially the usage of drones. 32 This increased use of drone technology has led to a number of questions about the constitutional and legal basis for the commander-in-chief to unilaterally kill suspected terrorists. 33 Overall, the president has been given this type of authority because Congress has abdicated its duty to check the executive branch and in some instances, as with authorization of the 2001 AUMF, have actually voted to expand the president’s power. The problem is not the president, but Congress’ inability to constrain the office. 34 Given this historical precedent, what can Congress do to limit the power of the presidency in regards to drones? Affirmative cases would likely focus on overall drone policy or a more narrow focus on the targeting of American citizens. In both cases, the most effective solvency mechanism would be for Congress to pass a new AUMF.
Crowley 4/1/13 (Michael, Writer for Time, http://www.time.com/time/printout/0,8816,2139176,00.html)
Those activities probably include drone strikes. But one reason Obama's drone campaign is under pressure is that it is increasingly straining against its legal authority. The legal basis for Obama's targeted-killing operations (which can also involve strikes from manned airplanes, among other tactics) is the 2001 Authorization for Use of Military Force (AUMF), a law passed by Congress three days after 9/11. The AUMF was as broad in meaning as it was concise in language--a 395-word measure whose key passage empowered the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the Sept. 11 attacks. ¶ For years, only a handful of critics questioned whether the drone campaign begun by George W. Bush and Cheney and accelerated by Obama was operating outside the law. Now members of Congress and legal scholars are asking whether it
30 http://www.idahostatesman.com/2013/03/14/2490377/congress-needs-to-restrict-presidents.html 31 Ibid. 32 Michael Boyle, The Guardian, June 11, 2012, http://www.guardian.co.uk/commentisfree/2012/jun/11/obama- drone-wars-normalisation-extrajudicial-killing 33 Ibid. 34 Charles Sanders 5/29/12, Esquire, http://www.esquire.com/blogs/politics/obama-kill-list-9257224) Presidential War Powers 18
makes sense for U.S. counterterrorism policy to be guided by language hastily drafted as the wreckage of the World Trade Center still burned. "I believe most everybody thought--certainly I thought--it was limited in time and space," says Jane Harman, a former Democratic Congresswoman from California with expertise in intelligence issues. "I never imagined it would be around 12 years later." In a speech last year, Johnson warned that the law "should not be interpreted to mean ... that we can use military force whenever we want, wherever we want ." ¶ But sometimes that's how it looks. In recent years, Administration lawyers have decreed that international law permits the U.S. to target "associated forces" of al-Qaeda. That has allowed for strikes against a broad range of individuals, most of whom have no real connection to the Sept. 11 attacks and may not even openly threaten the U.S. In some cases, U.S. drone strikes have targeted militants in Pakistan and Yemen who mainly threatened the governments of those countries. As Brooks puts it, "The enemy is inchoate and expanding ... We've gotten further and further from any sense of what, exactly, is the threat." ¶ A new AUMF would clarify, both legally and politically, whom we should be killing and why. It might also help reassure other nations that the U.S. has some sense of limits . Legal debates aside, a big practical problem with the drone war is that the rest of the world hates it. Drone strikes and the unintended deaths of innocents they sometimes cause have fanned severe anti-Americanism in places like Pakistan. (One would-be terrorist, Faisal Shahzad, who was plotting to bomb New York City in 2010, even cited U.S. drone strikes as a motivator.) A 2012 Pew Research Center poll of international opinion found that American drone strikes are deeply unpopular around the world, not only in Muslim countries but also in such nations as Germany, Russia, Japan and China. "We're losing the argument," Harman says. In January, a U.N. special investigator from Britain kicked off a nine-month official inquiry into U.S. drone strikes to determine "whether there is a plausible allegation of unlawful killing."
Completely scraping the AUMF is certainly one solvency mechanism for solving drones, but its complete repeal would likely implicate other issues in the War on Terrorism. However, there are narrower ways to solve for drones, such as amending the AUMF.
Hayden 3/11/13 (Tom, Nation Institute's Carey McWilliams Fellow, http://www.thenation.com/article/173289/threat- imperial-presidency)
Drone attacks clearly are acts of war as defined by the War Powers Resolution , although the WPR was written mainly to contain the deployment of American ground forces. The drone war rests more squarely on the 2001 Authorization for Use of Military Force (AUMF), the underlying legal rationale for the “global war on terrorism.”¶ The challenge of reform, as opposed to emergency tinkering, will require prolonged efforts to amend and clarify both the WPR and AUMF . Allowing any president a sixty-day period before seeking congressional authorization, as the WPR does, makes no sense in drone warfare. Instead, the president should be required to seek congressional permission if he wishes to target a clearly definable “enemy,” and be required to issue public guidelines, including necessary disclosure, governing the use of force he contemplates. That means:¶ First, Congress should establish a special inspector genera l, like the SIGUR created for Iraq and Afghanistan, to define, monitor and determine civilian casualties (“collateral damage”) from drone strikes . Currently that information is collected by the CIA,
which has a conflict of interest, not to mention a curtain of secrecy. ¶ Second, Congress will need to draft guidelines sharply narrowing—or even banning—the use of “signature strikes,” which permit drone attacks against targets profiled according to identity, such as young males of military age (which
could be civilians, participants in a wedding or funeral, etc.). ¶ Third, Congress or the courts will have to restore the open-ended concept of “imminent threat” to its traditional meaning, as an immediate operational threat aimed at American citizens, US territory or facilities . Under the elastic formulation employed by Brennan and others, the simple fact of ill-defined jihadists holding meetings anywhere on the planet is an “imminent threat” justifying military action. And according to the CIA interpretation, the threat is a “continuous” one, carrying over from war to war. But if every “potential” threat is defined as “imminent,” and all the threats are continuous, the CIA, Special Forces and American military will be spread thin indeed from the jungles of the Philippines to the ghettos of Britain.
Congress could also formally declare war, which would override the 2001 AUMF and limit the scope of where drones could be used and whom could be targeted by the commander-in-chief. Presidential War Powers 19
Calabresi 2/14/13 (Massimo, Writer for Time, http://swampland.time.com/2013/02/14/checking-obamas-assasination- power-a-drone-court-is-just-one-way/)
The authority of the commander in chief to kill Americans who have joined an enemy in war is (nearly) undisputed. But Congress has ceased performing its constitutional duty as the only branch of government given the authority to declare war under the Constitution. A better guarantee of a protection of citizen’s rights in the war against al Qaeda might be for Congress to declare war under its constitutional authority (rather than issue a vague Authorization for the Use of Military Force, as it did in 2001); define the battlefield (downtown Karachi?); the nature of the organization against whom the commander in chief had the authority to wage war (a network, not a nation state); and conduct regular oversight. To restrain the executive branch, Congress could explicitly empower the courts to deliberate on damages for Americans hurt or killed by drone strikes in that war (as Stephen Vladeck argues here).¶ Another idea is to follow the precedent of executive branch courts (including military commissions) and establish a “court-like” process for adjudicating whom the president can put on the targeted killing list. That too could be subject to Congressional oversight . That approach has been advanced by former acting Solicitor General and the lead lawyer in the Hamdan case, Neal Katyal. “The notion that a generalist federal court is going to sit to review drone strikes is simply implausible and unwise,” Katyal says. “However, there are some very good reasons why the Executive Branch should employ an internal process that resembles a court in some ways, but that would be staffed by experts.”
One of the most talked about potential affirmatives would be the establishment of a drone court. The court would certainly have jurisdiction over cases involving American citizens; however, some are pushing for it to also have jurisdiction over foreign agents as well. Berger 2/11/13 (Judson, Fox News, http://www.foxnews.com/politics/2013/02/11/us- senators-propose-assassination-court-to-screen-drone-targets/#ixzz2Pp5zTLnM)
But U.S. senators are now floating the idea of an assassination court as a way to rein in the
ever-expanding drone program -- a secretive operation that, as it is, sounds like thriller fiction, but isn't. ¶ The idea was bandied about during Thursday's confirmation hearing for CIA director nominee John Brennan, who fueled the talk by saying he thinks the concept is "worthy of discussion." The nominee, as a vocal supporter of the targeted-killing program, has come under scrutiny for what some lawmakers see as the administration's unchecked power to kill, even if the target is an American citizen. ¶ Sen. Dianne Feinstein, D-Calif., chairwoman of the Senate Intelligence Committee , said as part of an effort to regulate the killing, she wants to review proposals to create something similar to the Foreign Intelligence Surveillance Court -- which reviews requests for wiretaps against suspected foreign agents --
for drone strikes . ¶ Sen. Angus King, I-Maine, is pushing the idea the hardest. ¶ According to his vision, the drone court would be an avenue for U.S. officials to argue in secret before a judge why an American citizen should be targeted for death. He said it would be like "going to a court for a warrant" and
proving probable cause. ¶ Except in this case, the judge would be ruling not on a search warrant or a wiretap -- but a missile strike from thousands of feet in the air, and thousands of miles away.
As can be seen then, there are several potential and nuanced solvency mechanisms for the affirmative to defend. Additionally, the literature points to several potential advantages to limiting the use of drones. For instance,
Presidential War Powers 20
Boyle 6/11/12 (Michael, Writer for The Guardian, http://www.guardian.co.uk/commentisfree/2012/jun/11/obama-drone- wars-normalisation-extrajudicial-killing)
But such a portrayal conflates a tactical victory (killing one al-Qaida commander) with a strategic success (that is, dampening the growth of extremist movements in Afghanistan and Pakistan). It also rarely looks at the other side of the ledger and asks whether the drone strikes have jeopardized the stability of the governments of Pakistan and Yemen, possibly risking more chaos if they are overthrown .¶ During his first presidential campaign, Obama promised to control counterterrorism operations and to put them in their proper place as one piece of a wider set of relationships with other governments. But he has done the opposite, allowing short-term tactical victories against terrorist networks to overwhelm America's wider strategic priorities and leave its relations with key governments in a parlous state. His embrace of drones and his willingness to shoot first may also be policies that the US comes to regret when its rivals, such as China begin to develop and use their own drones .¶ Beyond simply failing to live up to campaign promises, the real tragedy of Obama's counterterrorism policy is that he has squandered an unprecedented opportunity to redefine the struggle against al-Qaida in a way that moves decisively beyond the Bush administration's mindset. Instead, he has provided another iteration of that approach, with a level of cold-blooded ruthlessness and a contempt for the constitutional limits imposed on executive power that rivals his predecessor.
There is also strong evidence suggesting that the United States needs to set a precedent for use of drones before other countries, such as China, develop the technology and use them in as loose a manner as we have in the last decade. 35 This drone technology proliferation could cause India to attack suspected terrorists in Kashmir, China to strike Uighur separatists, or Iran to attack Baluchi nationalists in Pakistan. 36 Drones fuel dangerous anti-American sentiment and destroy our human rights and U.S. soft- power credibility. Morely 6/12/2012 (Jefferson, Salon Staff and Former Washing Post World News Editor, http://www.salon.com/2012/06/12/hatred_what_drones_sow/)
The biggest danger that the United States now faces as a result of the drone war is not an al- Qaida attack on U.S. civilians (though that remains a possibility) but a Pakistani defection from the U.S. war on the Taliban as the U.S. prepares to withdraw from Afghanistan in 2014. In Pakistani public discourse, Obama’s America is fast replacing India as the country’s leading enemy. When Defense Secretary Leon Panetta said in India last week that the United States was reaching the “limits of its patience” with Pakistan, the pro-American Dawn newspaper in Islamabad responded that the feeling was mutual: The language the secretary has used, in the locations he has chosen to use it, only runs the risk of making Pakistan’s security establishment more intransigent and paranoid and will become fodder for right-wing forces propagating anti-India and anti-America opinions. All of which will only make it tougher for the Pakistani government to cooperate with the U.S. That’s a polite way to put it. Less polite Pakistanis are talking about shooting down a U.S. drone — an act of war against the United States. As Slate explained last week, “Pakistan talks about shooting down a drone but never does.” In December, Pakistan’s Army Chief of Staff Gen. Ashfaq Pervez Kayani let it be known that he had issued multiple directives to shoot down U.S. drones, which did not happen. In February, populist presidential contender Imran Kahn said his government would shoot down drones, a promise that doesn’t seem to worry U.S. officials yet. Last week, Dr. Abdul Qadeer Khan, a national hero for founding Pakistan’s nuclear program, said that U.S. drones could be shot down with a Hamza missile, a staple of Pakistan’s air arsenal. Americans may dismiss all of this as bluffing, and so far it has been. But we have seen many examples of “green on blue” violence where U.S.-trained Afghan soldiers have turned their guns on their putative American friends with deadly results. The Obama administration seems to assume the Pakistanis, individually or collectively, will not do such a thing because it would jeopardize U.S. military aid. But with Panetta (and Congress ) saying U.S. aid to Pakistan is already in jeopardy, that assumption is growing more dubious. Obama’s drone war has made this dysfunctional relationship more
35 Micah Zenko “Reforming U.S. Drone Strike Policies,” Council on Foreign Relations Special Report, Jan 2013, http://www.cfr.org/wars-and-warfare/reforming-us-drone-strike-policies/p29736 36 Paul Waldman, American Prospect, 2/14/2013, http://prospect.org/article/game-drones Presidential War Powers 21
dangerous. If the U.S. drone war is blue, Pakistan is green, and the possibilities for misunderstanding and betrayal are evident.
Moreover, the literature also points to the potential for drones to increase the threat of terrorism. 37 The implication of this is that it undermines the war against terrorism and puts the world at risk. For instance, drone strikes cause the U.S. to lose the hearts and minds of local citizens and fuel extremism in target nations. Additionally, in countries like Yemen, our drone strategy allows nations like Iran to interfere and gain greater regional influence. 38 Thus, affirmatives can claim that drones cause unnecessary civilian deaths, fuel anti-American sentiment, and create dangerous precedent for drone technology proliferation. It should also be noted that there is literature that supports the idea that constraining presidential power and usage of drones solves these advantages. In other words, affirmatives do not need to necessarily defend the end of drone strikes in order to solve their advantages, as constraining the executive is potentially sufficient enough. 39 There are also a wide number of critical implications for drone affirmatives. Depending on whether the affirmative ends drone strikes, or merely makes them more legitimate, these critical arguments could also be ran on the negative. There is a clear link between drones and Judith Butler’s arguments about precarious life. Another line of critical inquiry is provided by Douglas Kellner, who makes the connection between postmodernism, concepts of reality, and war. Kellner 8 (The Ideology of High-Tech/Postmodern War vs. the Reality of Messy Wars. Douglas Kellner is George Kneller Chair in the Philosophy of Education at UCLA and is author of many books on social theory, politics, history, and culture, www.gseis.ucla.edu/faculty/kellner/essays/pomowar.pdf, 6-22-10)
The postmodernization of war thus pertains to the increasing displacement of humans by technology, and the next phase of technowar will probably reveal more "smart machines" supplementing and even replacing human beings. The 1991 Gulf intervention, the 1999 NATO war against Serbia, the 2001 Afghan war, and second Iraq war of 2003, still raging despite Bush’s claim of “Mission Accomplished in May 2003, saw a widespread exploiting of drones, pilotless planes engaged as decoys and as instruments of surveillance, in addition to Cruise missiles and other “smart” weapons. The U.S. military is developing "unmanned" technologies for ground, air, and undersea vehicles. Smart tanks are already under production and as Chris Hables Gray (1989, 54) notes in Les Levidow and Kevin Robin’s book Cyborg Worlds: There are projects to create autonomous land vehicles, minelayers, minesweepers, obstacle breachers, construction equipment, surveillance platforms, and anti-radar, anti-armor and anti-everything drones. They are working on smart artillery shells, smart torpedoes, smart depth charges, smart rocks (scavenged meteors collected and then 'thrown' in space), smart bombs, smart nuclear missiles and brilliant cruise missiles. Computer battle-managers are being developed for AirLand battle, tactical fighter wings, naval carrier groups, and space-based ballistic-missile defense.... the Army even hopes to have a robot to “decontaminate human remains, inter remains, and refill and mark the graves." By now the concept of postmodern war is widespread in the media and public sphere like the Internet. For instance, a 1999 ABC news program on "Postmodern War" indicated a profound reorganization process in the military that is undergoing changes from heavy, slow, and largescale machinery, such as 70 ton tanks, to smaller, lighter, faster, and more flexible vehicles. These are equipped with more accurate "smart" weapons and better mapping and sensor technologies which demand less "manpower" (see abcnews.com, 11/03/99).
37 Owen Bowcott, “Drone strikes threaten 50 years of international law, says UN rapporteur”, Guardian, 2012, http://www.guardian.co.uk/world/2012/jun/21/drone-strikes-international-law-un 38 Ibrahim Mothana, Yemeni Democracy Activist and Opponent of Al Queda, NY Times, 06/14/2012, http://www.nytimes.com/2012/06/14/opinion/how-drones-help-al-qaeda.html?_r=0) 39 Paul Harris, “Drone attacks create terrorist safe havens, warns former CIA official”, 2012, http://www.guardian.co.uk/world/2012/jun/05/al-qaida-drone-attacks-too-broad
Presidential War Powers 22
Exotic high-tech military devices include MEMS (Micro Electrono-Mechanical Systems) that will produce tiny airplanes or insect-like devices that can gather intelligence or attack enemies. MARV (Miniature Autonomous Robotic Vehicle) technologies and various other automated military systems would guide robot-ships, disable land-mines and unexploded arms, and provide more effective sensors, stabilization, navigation, control, and maintenance devices. These technologies would ultimately construct cyborg soldiers who will incorporate such devices into their own bodies and equipment. Such miniature machines and cyberwarriors would be capable of gathering information, processing it, and then acting upon it, thus carrying through a technological revolution based on new intelligent machines. Indeed, military strategists and capability builders claim that the next generation of Armed forces will be "Net-ready," as in the U.S. Army development of a battlefield digitization project while it develops and fields a new family of lightweight, easily deployable combat vehicles, which will have digital technology built into them, rather than bolting it on as the Army has had to do with older tanks and Bradley Fighting Vehicles. Cyborg soldiers are also utilizing the Global Positioning Satellite system (which can be accessed from a computerized helmet) for precise mapping of the "enemy" and terrain. With the complex communications systems now emerging, all aspects of war -- from soldiers on the ground and thundering tanks to pilotless planes overhead -- are becoming networked with wireless computers providing information and exact locations of all parties. Robot scouts can roam the terrain sending back data instantaneously to commanders. SIPE (Soldier Integrated Protection Ensemble) is an army software program designed to merge all military digital technologies into one integrated data system. Even the physical state of the soldier can be monitored by computers, and one can imagine surgeons operating on wounds from continents away by using robots and the technology of "telemedicine." Hence, phenomenal new military technologies are being produced in the Third Millennium, described as the instruments of an emergent postmodern warfare, and envisaged earlier by Philip K. Dick and other SF writers. These military technologies, described in Messy Wars, are changing the nature of warfare and are part of a turbulent technological revolution with wide-ranging effects. They are helping to engender a novel type of highly intense "hyperwar," cyberwar, or technowar, where technical systems make military decisions and humans are put out of the loop, or are forced to make instant judgments based on technical data. As computer programs displace military planners and computer simulations supplant charts and maps of the territory, technology supersedes humans in terms of planning, decision making and execution. On the level of the battlefield itself, human power is replaced by machines, reducing the soldier to a cog in a servomechanism. These developments are alarming and led French theorist Paul Virilio (1989, 84) to comment in War and Cinema: The disintegration of the warrior's personality is at a very advanced stage. Looking up, he sees the digital display (optoelectronic or holographic) of the windscreen collimator; looking down, the radar screen, the onboard computer, the radio and the video screen, which enables him to follow the terrain with its four or five simultaneous targets; and to monitor his selfnavigating Sidewinder missiles fitted with a camera of infra-red guidance system . The autonomization of warfare and ongoing displacement of humans by technology creates the specter of technology taking over and the possibility of military accidents, leading to, Virilio warns us, the specter of global catastrophe. There is a fierce argument raging in military circles between those who want to delegate more power and fighting to the new "brilliant" weapons opposed to those who want to keep human operators in charge of technical systems. Critics of cyberwar worry that as technology supplants human beings, taking humans out of decision-making loops, the possibility of accidental firing of arms at inappropriate targets and even nuclear war increases . Since the 1980s, Virilio criticized the accelerating speed of modern technology and indicated how it was producing developments that were spinning out of control, and that, in the case of military technology, could lead to the end of the human race ( see Virilio and Lotringer’s Pure War 1983). For Virilio, the acceleration of events, technological development, and speed in the current era unfolds such that "the new war machine combines a double disappearance: the disappearance of matter in nuclear disintegration and the disappearance of places in vehicular extermination" (Virilio 1986: 134
Stephen Graham, Professor of Cities and Society at the Global Urban Research Unit, makes a similar arguments about our obsession with technology and the implications for what he calls automated killing systems, such as drones.40 On the flip side of this controversy, there are a number of potential negative arguments against limiting the president’s status quo ability to use drones. First, there are several potential counterplans. The most obvious would be for the president to act on his/her own. While we later discuss how the affirmative can make a number of arguments against this counterplan (including object fiat arguments), this counterplan also calls into question the need for Congress/Courts to act, which is a core area of debate. The community will have to decide the question of object fiat, but absent that argument cards exist both ways to support a substantive debate on who needs to act to restrain the executive branch. Here is a card that calls for the president to act:
NY Times 5/30/12 (http://www.nytimes.com/2012/05/31/opinion/too-much-power-for-a-president.html?_r=1&)
A unilateral campaign of death is untenable. To provide real assurance, President Obama should publish clear guidelines for targeting to be carried out by nonpoliticians, making assassination truly a last resort, and allow an outside court to review the evidence before
40 Stephen Graham Centre for the Study of Cities and Regions, Department of Geography Cities and the ‘War on Terror’ Volume 30.2 June 2006 255–76 International Journal of Urban and Regional Research, http://www3.interscience.wiley.com/cgi-bin/fulltext/118603050/PDFSTART Presidential War Powers 23
placing Americans on a kill list. And it should release the legal briefs upon which the targeted killing was based.
Also, Congress could create a court that would award damages to those who suffered in wrongful drone attacks. This action does not curtail the president’s ability to use drones, but would likely result in a more careful approach to their use. 41 There is also good evidence to support the idea that we do not need to restrain the power of the presidency, but instead require transparency.
Pearlstein 3/26/13 (Deborah, Professor of Public and International Affairs at Princeton, http://www.slate.com/articles/news_and_politics/jurisprudence/2013/03/congress_shouldn_t_give_president_obama_new_power _to_fight_terrorists.html)
Despite this, Leiter and others seem convinced that Congress should pass a new law authorizing force. Strangely, these calls for Congress to delegate new power to the executive branch seem animated less by an articulated security strategy or identified target than by a sense that this will actually help constrain the use of presidential power . As the argument goes, the president—any president—will want the option at some point of using force against some terrorist group. If Congress legislates, it can establish limits on the scope of the president’s authority by setting the rules for him to exercise it. The search for meaningful constraints on power is indeed the central challenge of our constitutional system. But Congress has an abysmal track record of successfully reining in presidential uses of force overseas. And there is little cause for hope it will succeed here . Consider the recent history. Congress decided in the days after 9/11 to authorize the use of force against a limited set of targets responsible for the attacks of 9/11, and two presidents have now used that authority to its fullest. But such broad congressional authority has not stopped President Obama, just like his predecessors, from asserting that he retains inherent authority to use force in self-defense under Article II of the Constitution, above and beyond what Congress authorizes. Congress can authorize whatever new wars it wishes; the president can still use force against imminent threats without it. This is hardly to say the president’s decision to use force operates under no constraint at all. Using force is expensive, it is alienating, it is provocative, and it may create greater threats to the American people than it prevents. Presidents have to convince the American public that war is worth fighting. This has even been true when they respond to acts of terror in self-defense. When President Reagan ordered strikes against Libya following the bombing of the civilian airliner over Lockerbie, Scotland, he made a speech from the Oval Office. Ditto for President Clinton when he bombed Sudan in response to al-Qaida’s attacks on the U.S. Embassies in Kenya and Tanzania. Mission details were rightly few, but both presidents explained who we had targeted and why . And the public, if they were displeased, could hold accountable the president or his party .¶ Today, it is this lack of transparency—not Congress’ relative apathy—that has boosted executive power and threatened the legitimacy of current drone operations. If Congress wants to do something about this, it should start by beefing up its own oversight efforts. Current federal laws require the president to notify the intelligence committees of all covert actions carried out by CIA (after the fact if need be). Congress should also require the same degree of notification of the Senate and House Armed Services Committees for operations carried out by the military’s Joint Special Operations Command, an active participant in U.S. targeting operations. The much maligned War Powers Resolution has been modestly effective in requiring the White House to report the introduction of military forces into hostilities. In the age of drones, Congress should explore strengthening that reporting requirement further .¶ If a terrorist group poses a threat to the United States that is truly imminent, the president of course retains his power to respond with force in self-defense. If and when a new terrorist group emerges that poses the kind of profound threat to the American people al-Qaida posed in the years leading up to 9/11, the president should seek authorization from Congress to use force against that group. New authority to use force is unlikely to diminish the president’s power. Neither does it
41 Steve Vladeck, http://www.lawfareblog.com/2013/02/whats-really-wrong-with-the-targeted-killing-white- paper/ Presidential War Powers 24
ensure the public will be told who the United States attacks or why. Absent either, the case for new use-of-force legislation is impossibly thin.
In addition to counterplans, there is also substantive literature from which to draw arguments for disadvantages. First, changing drone policy would alter our current military strategy, which would result in military overstretch, budget problems, and continued reliance on our nuclear deterrent. Also, the affirmative would reduce our ability to decrease our troop presence and close bases in Europe. Any of those ideas present a feasible basis for a disadvantage that could outweigh those of the affirmative.
Alexander and Stewart 1/6/12 (David and Phil, Reuters Staff, http://www.reuters.com/article/2012/01/06/us- usa-military-obama-idUSTRE8031Z020120106)
President Barack Obama unveiled a defense strategy on Thursday that would expand the U.S. military presence in Asia but shrink the overall size of the force as the Pentagon seeks to slash spending by nearly half a trillion dollars after a decade of war.¶ The strategy, if carried out, would significantly reshape the world's most powerful military following the buildup that was a key part of President George W. Bush's "war on terrorism" in Iraq and Afghanistan.¶ Cyberwarfare and unmanned drones would continue to grow in priority , as would countering attempts by China and Iran to block U.S. power projection capabilities in areas like the South China Sea and the Strait of Hormuz.¶ But the size of the U.S. Army and Marines Corps would shrink. So too might the U.S. nuclear arsenal and the U.S. military footprint in Europe.Troop- and time- intensive counter-insurgency operations, a staple of U.S. military strategy since the 2007 "surge" of extra troops to Iraq, would be far more limited. ¶ "The tide of war is receding but the question that this strategy answers is what kind of military will we need long after the wars of the last decade are over," Obama told a Pentagon news conference alongside Defense Secretary Leon Panetta.
Along these same lines, a change in drone policy could affect our ability to leave Afghanistan.
CBS New 2/5/13 (http://www.cbsnews.com/8301-250_162-57567793/congress-looks-to-limit-drone-strikes/)
The Pentagon is also considering basing surveillance drones in Niger to monitor on burgeoning extremist violence in North Africa, but it's not clear if they will be armed. Scaling back the use of drones also would hamper war plans in Afghanistan after combat troops are scheduled to withdraw in 2014. Drones represent a major thrust of the post-troops campaign to help the limited number of special forces units that remain there keep the Taliban from regrouping .
These are a few of the more drone policy specific disadvantages. For those whose bread and butter is the politics disadvantage, the controversial nature of drone policy should also allow this argument to flourish on this topic.
Vlahos 4/10/13 (Kelley, Editor for the American Conservative Magazine, http://original.antiwar.com/vlahos/2013/04/09/beware-lawyers-bearing-aumf-fix/)
The authors — Benjamin Wittes (co-director of Harvard Law School-Brookings Project on Law and Security), Robert Chesney (law professor, Texas University School of Law), Jack Goldsmith (Bush II-era Assistant Attorney General, Office of Legal Counsel, as well as Department of Defense attorney), and Matthew Waxman (law professor at Columbia University and director of that school’s neoconservative-funded Program on Law and National Security) – recommend congress should pass fresh statutory language authorizing the White House to identify and “list” new enemies that would be covered by an updated AUMF, adding and removing names of targeted terror entities as it Presidential War Powers 25
sees fit :¶ One model to draw on, with modifications, is the State Department’s Foreign Terrorist Organization designation process. Under this process, the Secretary of State pursuant to specific statutory standards, in consultation with other departments, and following a notification period to Congress designates particular groups as terrorist organizations and thereby triggers statutory consequences for those groups and their members.Here is what the current State Department list of designated terrorist organizations looks like today. The first thing that comes to mind when suggesting a similar template for the use of military force is the politics, which would be inevitable when you are inviting various levels of bureaucracy and congress to participate in designating targets. Take the recent State Department de-listing of the Mujahedin e-Khalq (MEK), which came after an audacious public relations blitz that involved millions in shadowy money, A-list campaigners and spokespersons, and a guerilla media war. Is this the kind of theater we are to expect as new terror groups cross the radar of competing Washington interests, or will groups pop on and off with little notice (until of course, their “associates” are flattened one day by a hellfire missile from the sky)?
And, lastly, as we suggest earlier, the core disadvantages on the topic are U.S. hegemony and terrorism credibility. Eliminating a core element of current anti-terrorism responses would harm both.
Carafano 2/27/13 (James, VP for Defense and Foreign Policy Studies at Heritage Foundation, http://www.heritage.org/research/commentary/2013/2/drone-of-battle)
Drone strikes and other covert operations clearly serve a military purpose: defending the U.S. against real, legitimate threats of armed violence . Yet , the president's drone wars raise some serious concerns. They have become this administration's primary means for battling transnational terrorism - and they are inadequate.¶ Al Qaeda is not simply about attacking the U.S. That is just a means to an end. The terrorist organization is part of a global Islamist insurgency, dedicated to seizing power and territory and ruling in a manner that is contrary to the vital national interests of this nation . It will rule without humanity or prudence, bringing war and crushing freedom wherever its shadow can spread .¶ So even though we are preventing them from attacking our homeland, it doesn't mean we are winning. Al Qaeda and its affiliates are making progress on other fronts - in the Caucuses, the Middle East, North Africa and South Asia .¶ Further, just killing its leadership won't stop al Qaeda. This organization is a human web. Killing a few nodes in the web - just like cutting a few strands in a real web - won't take it down. ¶ Worrying about the legality of drone wars is distracting concern from what Washington really ought to be worried about: the very real possibility that it may be losing the larger war against radical Islamism .
In conclusion, this area of the controversy is vibrant and provides a good division of ground for both sides of the controversy. The affirmative has several different solvency mechanisms from which to choose from and varied advantages that provide them immediate and big impacts. However, the negative also has plenty of ground to support counterplans that do not curtail the power of the president, but still potentially solve the affirmative. 2. Deploy offensive forces – Offense Cyber Operations Leading up to the 2011 military intervention in Libya, President Obama and his staff considered using a new military strategy to disable and confuse Libyan military command: Offensive Cyber Operations. Although the administration opted not to use these operations in Libya, reporters discovered in June 2012 that the United States and Israel developed the Stuxnet worm, which was Presidential War Powers 26
deployed to assault the computer systems in Iran’s nuclear enrichment facilities. This attack marked “America’s first sustained use of cyberweapons”. 42 The use of Offense Cyber Operations (OSO) poses interesting challenges for the constitutional limits of presidential war powers. Building off its expanded war powers authorized by the 2001 AUMF, the Obama administration is developing new OSO policies, with legal support from secret executive memos, to justify offensive cyber-warfare powers. The “legal justification for this sweeping war-making power does not exist in public, and therefore its basis in the Constitution–or lack of any such basis– cannot be analyzed and debated.” 43 What are the implications of this expanded authority to use OSO? First, this new offensive strategy risks provoking a global cyber-arms race that would be detrimental to the U.S. Tom Gjelten notes how OSOs will cause an arms race: Tom Gjelten, Jan/Feb 2013 , “First Strike: US Cyber Warriors Seize the Offensive,” World Affairs, http://www.worldaffairsjournal.org/article/first-strike-us-cyber-warriors-seize-offensive
In addition, there are policy questions raised by the escalating government investment in offensive cyber war capabilities . One fear is that each new offensive cyberweapon introduced into use will prompt the development of an even more lethal weapon by an adversary and trigger a fierce cyber arms race. A hint of such an escalatory cycle may be seen in the confrontation with Iran over its nuclear program . US officials suspect the Iranian government was responsible for the recent wave of cyber attacks directed against Aramco, the Saudi oil company, and may also have been behind a series of denial-of-service attacks on US financial institutions. Such attacks could be in retaliation for the Stuxnet worm.
In addition to creating an arms race, OSOs will cause China and Russia to seek to constrain our ability to use such operations, which will undermine overall US cyber superiority and threatens to cause overregulation of free expression and information on the internet. Tom Gjelten, Jan/Feb 2013 , “First Strike: US Cyber Warriors Seize the Offensive,” World Affairs, http://www.worldaffairsjournal.org/article/first-strike-us-cyber-warriors-seize-offensive
Some writers foresee a dangerous new world, created by the U nited States and Israel with the deployment of Stuxnet . Misha Glenny, writing in the Financial Times, argued that the tacit US admission of responsibility for Stuxnet will act “as a starting gun; countries around the world can now argue that it is legitimate to use malware pre-emptively against their enemies .” One danger is that US adversaries, notably including Russia and China, may now cite the use of Stuxnet to support their argument that an international treaty regulating the use of cyberweapons may
42 Tom Gjelten, “First Strike: US Cyber Warriors Seize the Offensive,” World Affairs, Jan/Feb 2013, http://www.worldaffairsjournal.org/article/first-strike-us-cyber-warriors-seize-offensive 43 Lyle Denniston, “Constitution Check: Is the War Powers Clause a dead letter in the Cyberspace Age?,” Constitution Daily, , Feb 2013, http://blog.constitutioncenter.org/2013/02/constitution-check-is-the-war-powers- clause-a-dead-letter-in-the-cyberspace-age/ Presidential War Powers 27
be needed. The U nited States has long opposed such a treaty on the grounds that it would undermine its own technological advantages in cyberspace and could also lead to efforts to regulate the Internet in ways that would harm freedom of expression and information .
The arms race and potential retaliatory strikes from multiple unknown asymmetrical sources would harm the U.S. worse than it would our adversaries. DAVID E. SANGER, JOHN MARKOFF and THOM SHANKER , April 27, 2009 , “U.S. Steps Up Effort on Digital Defenses,” New York Times, http://www.nytimes.com/2009/04/28/us/28cyber.html?pagewanted=all&_r=0
But in cyberwar, it is hard to know where to strike back, or even who the attacker might be . Others have argued for borrowing a page from Mr. Bush’s pre-emption doctrine by going into foreign computers to destroy malicious software before it is unleashed into the world’s digital bloodstream. But that could amount to an act of war, and many argue it is a losing game, because the U nited States is more dependent on a constantly running Internet system than many of its potential adversaries, and therefore could suffer more damage in a counterattack .
Scholars contend that given the costs of these policies – including the devastating harm they could cause to adversaries – we must treat OSOs the same as military operations with proper congressional oversight through WPR application. Jason Healey & AJ Wilson, February 2013 , Jason Healey is the director of the Cyber Statecraft Initiative at the Atlantic Council. A.J. Wilson is a visiting fellow at the Atlantic Council, “Cyber Conflict and the War Powers Resolution: Congressional Oversight of Hostilities in the Fifth Domain,” Atlantic Council Issue Brief, papers.ssrn.com/sol3/papers.cfm?abstract_id=2017036
Involving the legislative branch in cyber conflict decisionmaking in this gradated manner —which, as the table shows, is easily transposed to the physical realm—need be neither unreasonable nor disproportionate . After all, transparency is required of those who govern open societies. Especially in this information age, we as citizens are right to expect it. The U nited States needs the capacity to carry out offensive operations in cyberspace, but the Executive branch must accept that the same checks and balances that apply to physical hostilities apply also to cyber conflict . Future cyber attacks may have the ability to destroy or degrade an adversary’s critical infrastructure, cripple its economy, and seriously compromise its ability to defend itself . They may cause physical injury or even death . Their strategic consequences—not to mention their fiscal and economic costs—may be just as significant as a physical attack. This is, indeed, why the Pentagon has rightly decided to treat cyberspace as the fifth domain. But it must, by the same token, accept that logical forms of presence matter in cyberspace in the same way that physical forms matter in the kinetic space, and therefore it must apply the War Powers Resolution accordingly. The Founding Fathers could not have imagined a world in which weapons made of information travel around the globe at the speed of light; but they did know how to distribute power to encourage restraint in its application. Even in cyberspace, there is a voice for both branches .
Oversight can maintain strategic flexibility while providing necessary transparency and review.
Eric Lorber, March 1, 2013 , “Executive Warmaking Authority and Offensive Cyber Operations: Can Existing Legislation Successfully Constrain Presidential Power?” University of Presidential War Powers 28
Pennsylvania Journal of Constitutional Law, Vol. 15, No. 3, pp. 961, 2013 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2017036
Should these statutes be adjusted (or new ones created) that give Congress additional oversight in this area? Two competing desiderata suggest that oversight should be increased , but only to a limited extent. On the one hand, policymakers have suggested that developing strict rules and limitations on the use of offensive cyber operations will handicap the military’s ability to quickly and effectively employ these tools in critical situations, such as cyber warfare against adversarial states.236 According to these arguments, developing red lines that proscribe the use of these capabilities will create reluctance and trepidation among strategists and will lead to disadvantages in combat situations.237 On the other hand, developing some legal rules is necessary to ensure that, as these cyber capabilities continue to develop, the President does not gain sufficient leverage to substantially tilt the balance between the President and Congress . Moreover, because these capabilities are still developing at a fast rate, understanding how they should and should not be employed is an important goal and having senior members of Congress and their staffs— professional staff members on the intelligence committees, who likely have substantial experience in these areas— provide input would be useful in developing this understanding. These competing arguments —one for limiting any oversight and one for increasing it—suggest a middle ground that will avoid drawing red lines but will still provide useful congressional insight into the doctrinal and legal development of offensive cyber operations. Such an approach would include new legislation, similar to the Intelligence Authorization Act, explicitly requiring the President to report its use of covert cyber activities to the heads of Senate and House intelligence committees (i.e. the Gang of Eight).238 Congress would not have the ability to veto such actions , however it would be able to raise potential legal issues with the executive branch, as well as provide policy advice as to the wisdom of employing these capabilities in such circumstances . As a result, while the heads of these committees would not have the ability to draw red lines themselves, they would be able to consult with the executive branch—as the branch employs these capabilities—to determine their likely legality and wisdom. While the President could ignore this advice, such an approach would at the very least keep Congress informed of the developing capabilities and their employment . With such an approach, Congress could play a meaningful role in the shifting and uncertain legal and policy realms of offensive cyber operations, which will undoubtedly become increasingly important as the United States and other nations develop and employ these capabilities with ever-greater frequency.
What are the disadvantages to applying limits to presidential war powers to conduct OSOs? The core disadvantage is that these limits undermine our ability to counter cyber threats that have no corresponding legal limits placed on them. The literature on this argument contends that our legal framework for checks and balances are simply too outdated to give the necessary flexibility and speed to appropriately respond to these threats. Jan Kallberg, researcher at the Cyber Security Research and Educational Center, Erik Jonsson School of Engineering and Computer Science, the University of Texas at Dallas , “Offensive Cyber: Superiority or Stuck in Legal Hurdles?,” Defense News, Feb 17 , 2013, www.defensenews.com/article/20130217/DEFFEAT05/302170016/Offensive-Cyber- Superiority-Stuck-Legal-Hurdles-
At a time when the U nited States has already lost an estimated $4 trillion in intellectual property as a result of foreign cyber espionage, not to mention the loss of military advantage, focusing on what the U nited States cannot do in cyberspace only hinders efforts to defend the country from future cyber attack . The country is facing an enemy unrestrained by limitations , clearly visible in blatant cyber attacks on military networks, major banks and media outlets.
Presidential War Powers 29
Defined by military experts as the “fifth domain” of warfare, unrestricted U.S. superiority in cyber warfare is necessary to maintain U.S. hegemony. Stephanie Dreyer, Media Relations Director for the Truman National Security Project, an institute that trains and positions progressives to lead on national security, “Cyber Warfare: The War America is Losing,” Policymic, 2012 , http://www.policymic.com/articles/3645/cyber- warfare-the-war-america-is-losing/featured_writer
It is becoming increasingly clear that countries like China and Russia have no misgivings about using cyber warfare as a highly effective and inexpensive means to obtain information and improve their national superiority. As cyber security expert Joseph Steinberg explains in Why the U.S. is losing the cyber war against China, "spying via computer systems … poses far fewer risks than its physical-world counterpart. Deniability is always an option; no highly trained people are at risk; and there is far less of a threat of agents defecting, betraying their sponsor or becoming double agents.” Fortunately, it looks like the U.S. is finally catching on and making some of the necessary changes to protect our nation from cyber-attacks. In his State of the Union address, President Barack Obama announced that he is working with our military leaders to create a new defense strategy that will save trillions of dollars and ensure that we are safe from foreign threats — both on the ground and in the virtual arena. He said, “[t]o stay one step ahead of our adversaries, I have already sent this Congress legislation that will secure our country from the growing danger of cyber- threats.” This is a good first step. If we are going to defend ourselves from 21st century threats, we need to change the way we look at cyber warfare . We must educate Americans about the real dangers that cyber-attacks pose and encourage our students to study computer science to create a new generation of professionals who know how to safeguard our nation against cyber terrorism. In addition, we must not be afraid to use our intelligence and technology to our advantage. If America wants to remain a super power and maintain a strong geopolitical standing, we must use every weapon at our disposal to protect ourselves.
Overall, we believe that there is a clear controversy surrounding OSOs that provide a fair balance between affirmative and negative arguments. 3. Indefinite Detention Indefinite detention of terrorism suspects and informants is another controversial presidential war powers issue. 168 detainees remain imprisoned in the Guantanamo Bay center without due process rights and they will likely remain in captivity with “no end in sight.” 44 Instead of opposing detainment, the Obama administration has actually increased rules and regulations on detainees that further erode their due process rights by refusing to allow lawyers to visit their clients at the facility and prohibit attorneys from sharing information with one another or to use information from the detention centers in their defense arguments. 45 As Glenn Greenwald, an author about detention issues and former constitutional and civil rights litigator, explains,
Glenn Greenwald, is a former Constitutional and civil rights litigator and is the author of three New York Times Bestselling books: two on the Bush administration's executive power and foreign policy abuses, and his latest book, With Liberty and Justice for Some, an indictment of America's two-tiered system of justice. Greenwald was named by The Atlantic as one of the 25 most
44 Glenn Greenwald, “The Obama GITMO myth”, Salon, 7/23/2012, http://www.salon.com/2012/07/23/the_obama_gitmo_myth/ 45 Ibid. Presidential War Powers 30
influential political commentators in the nation, “The Obama GITMO myth”, 7/23/20 12 , http://www.salon.com/2012/07/23/the_obama_gitmo_myth/
Last week, the Obama administration imposed new arbitrary rules for Guantanamo detainees who have lost their first habeas corpus challenge . Those new rules eliminate the right of lawyers to visit their clients at the detention facility ; the old rules establishing that right were in place since 2004, and were bolstered by the Supreme Court’s 2008 Boumediene ruling that detainees were entitled to a “meaningful” opportunity to contest the legality of their detention. The DOJ recently informed a lawyer for a Yemeni detainee , Yasein Khasem Mohammad Esmail, that he would be barred from visiting his client unless he agreed to a new regime of restrictive rules, including acknowledging that such visits are within the sole discretion of the camp’s military commander . Moreover, as SCOTUSblog’s Lyle Denniston explains: Besides putting control over legal contacts entirely under a military commander’s control, the “memorandum of understanding” does not allow attorneys to share with other detainee lawyers what they learn, and does not appear to allow them to use any such information to help prepare their own client for a system of periodic review at Guantanamo of whether continued detention is justified, and may even forbid the use of such information to help prepare a defense to formal terrorism criminal charges against their client. The New York Times Editorial Page today denounced these new rules as “spiteful,” cited it as “the Obama administration’s latest overuse of executive authority ,” and said “ the administration looks as if it is imperiously punishing detainees for their temerity in bringing legal challenges to their detention and losing .” Detainee lawyers are refusing to submit to these new rules and are asking a federal court to rule that they violate the detainees’ right to legal counsel.
As a result, uniqueness clearly goes in the direction of the status quo expanding its detention powers and limitations on detainees’ rights. The important legal issue present in this debate is not whether the Guantanamo Bay detention center closes. Indeed, even if the Obama administration and Congress had agreed to close the facility,46 it would do little to end the practice of indefinite detainment. Even with the closure of the facility, the precedent for the practice would remain and the Obama administration has made it clear that it would continue to use this power. As Greenwald notes, in citing from ACLU Executive Director Anthony Romero, “the creation of a ‘Gitmo North’ in Illinois is hardly a meaningful step forward. Shutting down Guantanamo will be nothing more than a symbolic gesture if we continue its lawless policies onshore.” 47 And, as Greenwald concludes about the danger of the precedent established by this war power and policy,
Glenn Greenwald, is a former Constitutional and civil rights litigator and is the author of three New York Times Bestselling books: two on the Bush administration's executive power and foreign policy abuses, and his latest book, With Liberty and Justice for Some, an indictment of America's two-tiered system of justice. Greenwald was named by The Atlantic as one of the 25 most influential political commentators in the nation, “The Obama GITMO myth”, 7/23/20 12 , http://www.salon.com/2012/07/23/the_obama_gitmo_myth/
46 See ibid for an excellent discussion of why Congress is not to blame for the Obama administration’s failure to close the GITMO center. He also details why the Obama administration is more strongly embracing detention rather than opposing it. 47 Ibid. Presidential War Powers 31
Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful . And, while your administration may resist such a temptation, future administrations may not. There is a real risk , then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security. Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues. Feingold was not going to vote for a plan to close Guantanamo if it meant that its core injustice — indefinite detention — was going simply to be re-located onto American soil, where it would be entrenched rather than dismantled. That, as all of this evidence makes clear, is why so many Democratic Senators voted to deny funding for the closing of Guantanamo: not because they favored the continuation of indefinite detention, but precisely because they did not want to fund its continuation on American soil, as Obama clearly intended. Now, here we are, almost four years after the vow to close Guantanamo was enshrined in an Executive Order, and the rights of detainees — including the basic right to legal counsel — are being constricted further, in plainly vindictive ways. Conditions at Guantanamo are undoubtedly better than they were in 2003 , and some of the deficiencies in military commissions (for the few who appear before them) have been redressed. But the real stain of Guantanamo — keeping people locked up in cages for years with no charges — endures. And contrary to the blatant myth propagated by Obama defenders, that has happened not because Obama tried but failed to eliminate it, but precisely because he embraced it as his own policy from the start.
The current due process status for detainees is completely inadequate. According to law professor at the University of Utah, Amos Guiora, rather than clarifying these detainees status as criminal or war prisoner, status quo policies define them as neither. Instead, they have a hybrid status that creates confusion about the state of the detainees’ due process rights. Although the Hamdi v. Rumsfeld decision clarified that detained U.S. citizens have due process rights, Justice O’Connor’s arguments make it clear that non-citizens are not protected by the Constitution. 48 Additionally, the Boumediene v. Bush decision has had no effect on limiting Executive detention powers.
Glenn Greenwald, is a former Constitutional and civil rights litigator and is the author of three New York Times Bestselling books: two on the Bush administration's executive power and foreign policy abuses, and his latest book, With Liberty and Justice for Some, an indictment of America's two-tiered system of justice. Greenwald was named by The Atlantic as one of the 25 most influential political commentators in the nation, “The evil of indefinite detention and those wanting to de-prioritize it”, Jan 8 th 20 12 , http://www.salon.com/2012/01/08/the_evils_of_indefinite_detention_and_those_wanting_to_de_prioritze_them/
Post-Boumediene, indefinite detention remains a staple of Obama policy . The Obama DOJ has repeatedly argued that the Boumediene ruling should not apply to Bagram , where — the Obama administration insists — it has the power to imprison people with no due process, not even a habeas hearing; the Obama DOJ has succeeded in having that power enshrined . Obama has proposed a law to vest him with powers of “prolonged detention” to allow Terrorist suspects to be imprisoned with no trials. His plan for closing Guantanamo entailed the mere re-location of its indefinite detention system to U.S. soil, where dozens of detainees, at least, would continue to be imprisoned with
48 Amos N. Guiora, “DUE PROCESS AND COUNTERTERRORISM”, Emory International Law Review, June 28th 2012, http://www.law.emory.edu/fileadmin/journals/eilr/26/26.1/Guiora.pdf Presidential War Powers 32
no trial. And, of course, the President just signed into law the NDAA which contains — as the ACLU put it — “a sweeping worldwide indefinite detention provision,” meaning — as Human Rights Watch put it — that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.” Those held at Guantanamo will continue to receive at
least a habeas hearing, but those held in other American War on Terror prisons will not . Read Boumediene’s Op-Ed to see why this is so odious.
Like the Courts, rather than provide a check on the Obama administration, Congress has maintained deference to the Administration’s extraordinary rendition, tribunals, and CIA prisons policies. John E. Owens The Centre for the Study of Democracy The University of Westminster, “The Impact of the “War on Terror” on Executive-Legislative Relations in the UK and US: A Comparative Analysis”, 20 10 , http://www.britishpoliticsgroup.org/BPG%202010-Owens- Shephard.pdf
Notwithstanding some efforts to challenge and check the Obama administration (as during the Bush administration) – notably on military involvement in Iraq and Afghanistan and Pakistan, and detainees at Guantánamo - on most “war on terror” issues the Democratic Congress has not challenged the Obama administration to overturn many of the Bush administration’s “war on terror” policies (including extraordinary rendition, military tribunals, and the use of Bagram and other CIA prisons abroad ) or insist on the prosecution of CIA officials and others guilty of torture, Cabinet and other executive officers who lied or failed to disclose illegal programmes to the Congress, or manipulated intelligence (see Conyers 2009 for a more or less complete charge sheet). In February 2010 the President signed into law HR 3961 which provides for further time extensions of several terrorist surveillance provisions included in the PATRIOT Act . In sum, congressional non-decision making has continued, and although some legislators (mainly liberal Democrats) have raised issues and the administration has showed a new willingness to conduct conversations with the Congress, congressional legislators have collectively continued to offer deference to the executive in this domain.
In 2012, the Obama administration formalized indefinite detention without charge by signing the National Defense Authorization Act (NDAA) for 2012, which uses the same justifications in the AUMF Act to allow the executive to detain so long as they could be interpreted as "part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” 49 And with little more than a whimper, Obama and Congress re- authorized the NDAA in 2013, making it more difficult to close the Guantanamo center and maintaining unchecked authority to detain suspects. 50 Although some safeguards were written into the NDAA, they are insufficient to protect against indefinite detention without trial. The Gohmert Amendment, for
49 J.D. Tuccille, “How Obama Came to Be the Biggest Defender of Indefinite Detention”, Sept 21st 2012, http://reason.com/archives/2012/09/21/were-all-in-detention-now 50 Joe A. Wolverton, II, J.D, correspondent for The New American, “Obama Signs 2013 NDAA: May Still Arrest, Detain Citizens Without Charge”, Jan 5th 2013, www.thenewamerican.com/usnews/constitution/item/14120- obama-signs-2013-ndaa-may-still-arrest-detain-citizens-without-charge Presidential War Powers 33
example, was written too vaguely and does not address the unchecked nature of detention powers. 51 Because of this environment, we believe that the status quo will remain very stable for debates over indefinite detention powers. Every indicator demonstrates that uniqueness will run in favor of maintaining, if not further increasing, these presidential war powers. There are several potential advantage areas contained in the literature on detention: American soft/hard power legitimacy, recruitment tool for terrorism, and the reduction of detainees to the status of bare life. This area of the topic would nicely access a number of policy and critical issues.
David Welsh , J.D. from the University of Utah. He is currently a doctoral student in the Eller School of Business at the University of Arizona where his research focuses on organizational fairness and ethics, “Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on Perceptions of Global Legitimacy”, 9 U.N.H. L. Rev. 261, March 20 11 , Lexis
The Global War on Terror n1 has been ideologically framed as a struggle between the principles of freedom and democracy on the one hand and tyranny and extremism on the other . n2 Although this war has arguably led to a short-term disruption of terrorist threats such as al-Qaeda, it has also damaged America's image both at home and abroad . n3 Throughout the world, there is a growing consensus that America has "a lack of credibility as a fair and just world leader ." n4 The perceived legitimacy of the United States in the War on Terror is critical because terrorism is not a conventional threat that can surrender or can be defeated in the traditional sense . Instead, this battle can only be won through legitimizing the rule of law and undermining the use of terror as a means of political influence . n5 Although a variety of political, economic, and security pol icies have negatively impacted the perceived legitimacy of the United States , one of the most
damaging has been the detention , treatment, and trial (or in many cases the lack thereof) of suspected terrorists . While many scholars have raised constitutional questions about the [*263] legality of U.S. detention procedures , n6 this article offers a psychological perspective of legitimacy in the context of detention .
Legitimacy of the rule of law is critical to combating terrorism and maintaining U.S. hard/soft power (obviously, this advantage also serves as links to a number of disadvantages and critical arguments as well)52
David Welsh , J.D. from the University of Utah. He is currently a doctoral student in the Eller School of Business at the University of Arizona where his research focuses on organizational fairness and ethics, “Procedural Justice Post-9/11: The Effects of Procedurally Unfair Treatment of Detainees on Perceptions of Global Legitimacy”, 9 U.N.H. L. Rev. 261, March 20 11 , Lexis
While the United States received a virtually unprecedented outpouring of support from the international community following 9/11, a nation's reservoir of support will quickly evaporate
51 Ibid. 52 The Welsh paper goes on to identify several more linkages between detention and legitimacy in war on terror fighting. There are also several relevant footnotes cited that, for the purpose of updating this literature, is a bit outdated (ex. Kevin E. Lunday & Harvey Rishikof, Due Process Is a Strategic Choice: Legitimacy and the Establishment of an Article III National Security Court, 39 CAL. W. INT'L L.J. 87, 87 (2008).) But if the policy advantage area is still questionable, I invite you to follow up on these articles. Presidential War Powers 34
when its government overreacts. Across the globe, individuals have expressed a growing dissatisfaction with U.S. conduct in the War on Terror, and by 2006, even western allies of the United States lobbied for the immediate closure of Guantanamo Bay , calling it "an embarrassment." n67 Former Secretary of State Colin Powell proclaimed that "Guantanamo has become a major, major problem . . . in the way the world perceives America and if it were up to me I would close Guantanamo not tomorrow but this afternoon . . . ." n68 Similarly, [*272] President Obama noted in his campaign that "Guantanamo has become a recruiting tool for our enemies." n69 Current U.S. detention policies erode each of the four pillars on which the
United States established global legitimacy . In fact, critics have argued that the "United States has assumed many of the very features of the 'rogue nations' against which it has rhetorically- -and sometimes literally--done battle over the years." n70 While legitimacy cannot be regained overnight, the recent election of President Barack Obama presents a critical opportunity for a re-articulation of U.S. detention policies. Although President Obama issued an executive order calling for the closure of Guantanamo Bay only two days after being sworn into office, n71 significant controversy remains about the kind of alternate detention system that will replace it . n72 In contrast to the current model, which has largely rendered inefficient decisions based on ad hoc policies, I argue for the establishment of a domestic terror court (DTC) created specifically to deal with the unique procedural issues created by a growing number of suspected terrorists.
And Executive authority to conduct the War on Terror, specifically detention, is type of policy philosophers like Agamban criticize: Corinna Mullin is currently a Visiting Assistant Professor of International Relations at the University of Tunis, “Resisting the other of the ‘war on terror’: lessons from Japanese internment camps?”, Feb 20 13 , http://www.opendemocracy.net/corinna-mullin/resisting- other-of-%E2%80%98war-on-terror%E2%80%99-lessons-from-japanese-internment-camps
As the Italian philosopher Giorgio Agamben explained, the ‘state of exception’ is not characterised by ‘a special kind of law (like the law of war)’ but rather by the ‘suspension of the juridical order itself’, marked by ‘the extension of the military authority’s wartime powers into the civil sphere’ in which the normal protections provided by the constitution and rule of law are no longer provided. Though intended to be temporary in nature, Agamben argues that the ‘state of exception’ has become a permanent fixture of democratic governance. The ‘state of exception’ as applied in the ‘war on terror’, a ‘war’ declared by the US and its allies against a tactic, and therefore unbound by time or space, is ongoing. One of its most prominent features is drone warfare, initially focused on established ‘war on terror’ battlefields such as Afghanistan, Pakistan, Yemen and Somalia, and now expanding into largely unchartered territory, as evidenced by the opening of a US drone base in Northwest Africa coinciding with the US-backed French intervention in Mali. First established under the Bush administration, and touted by its supporters as a relatively cheap and technologically sophisticated means of targeting suspected terrorists in remote areas, the programme has expanded seven fold under Obama. The ‘guilty until proven innocent’ premise on which the targeted-killing programme is based, demonstrates the current president’s similar disregard for international law and humanitarian norms when it comes to fighting terrorism. The recent passage of the US 2013 National Defense Authorization Act (NDAA) and the choice of newly inaugurated US President Barak Obama’s chief counterterrorism advisor, aka the ‘assassination tsar’, John Brennan to head the CIA, signal that the legal and discursive components of the ‘war on terror’ will be further institutionalized over the next four years. These developments are connected to an overall restructuring of US power in the region, linked to ethical and strategic losses in the wars in Iraq and Afghanistan, an economic crisis at home, the multipolarisation of power in the international system and increasing attention to developments further east. In the coming years, US austerity intervention in West Asia and North Africa is more likely to take the form of covert military operations rather than boots on the ground, and a greater reliance on regional allies. The US’ ability to project its power in the region has proven adept at responding to fast moving Presidential War Powers 35
developments on the ground in the past. However, ongoing challenges to the dehumanising discourses, policies and practices associated with the latest iteration of US hegemony have also proven dynamic, and have taken several different forms over the years.
Additionally, the executive powers to detain have significantly minimized the role of the legislature and judiciary in counterterrorism policy – this blurs the lines of separation of powers and checks and balances.53 The literature discusses two ways to solve the advantages through limiting executive war powers: 1) The federal courts striking down the NDAA; and 2) Congress repealing the NDAA.54 The Courts have the power to grant 5th and 14th amendment rights to prisoners in US territories (including Guantanamo Bay), and the Congress has oversight powers – both can be used to limit Executive authority to detain. Amos N. Guiora , Professor of Law, S.J. Quinney College of Law, University of Utah, “DUE PROCESS AND COUNTERTERRORISM”, Emory International Law Review, June 28th 20 12 , http://www.law.emory.edu/fileadmin/journals/eilr/26/26.1/Guiora.pdf
The question of whether to extend constitutional protections to non-citizens was originally addressed in the Dred Scott decision, which held that the Fifth Amendment was not limited to the geographic boundaries of the states, but rather, such protections were extended to all incorporated territories of the United States.67 In the 150 years since Dred Scott, the Court has discussed similar cases with two distinct “lines of demarcation” important for determining detainee rights: first, distinguishing between individuals within and outside of the United States; and second, distinguishing between citizens and non-citizens.68 In discussing these two issues, case law slowly extended constitutional protections to include non-citizens , provided they could demonstrate cognizable ties to the United States .69 The clearest tie was physical location within the borders of the United States .70 In accordance with Johnson v. Eisentrager, 71 this specific inquiry directly influences this Article’s question, as the decision of Guantanamo Bay’s status as a territory of the United States is of the utmost importance. If Guantanamo Bay is held as a territory of the United States, then the precedent dictates that fundamental rights, like the Fifth and Fourteenth Amendments, should apply. However, if it is not held to be a territory, then the constitutional protections would not necessarily be afforded. Failing to institutionalize independent judicial review of detention decisions directly resulted in the significant number of detainees held indefinitely. If there are no criteria for determining what actions pose a threat to American national security, the detentions are reflective of an approach best described as “round up the usual suspects.” This is not a policy; it is a tragic reality of the past ten years. Indefinite detention perhaps sounds attractive, for it removes from the zone of combat—indefinitely—individuals suspected of involvement in terrorism. The qualifier “perhaps” is essential to the discussion, for the inherent unconstitutionality of indefinite detention has a pervasive effect on U.S. counterterrorism. Furthermore, the dearth of articulated criteria for initial detention and subsequent remand alike inevitably guarantees that individuals have been wrongly detained precisely because threat has not been defined. While Judge Bates’ decision was of the utmost importance—more than any Supreme Court holding addressing counterterrorism in the past eight years, save Boumediene—it has not resulted either in a significant re-articulation of U.S. policy nor in the granting of habeas corpus to thousands of detainees.72 Aside from its decision in Boumediene, the Supreme Court has failed to articulate the rights granted to suspected terrorists. Similarly, Congress has failed to articulate these rights through its constitutionally granted oversight powers. It is essential to balance—or maximize—the legitimate rights of the individual with the equally legitimate national security rights of the state. Furthermore, Judge Bates’ decision seeks to move beyond the amorphousness that has defined much of the debate over the last ten years.73
53 Amos N. Guiora, Professor of Law, S.J. Quinney College of Law, University of Utah, “DUE PROCESS AND COUNTERTERRORISM”, Emory International Law Review, June 28th 2012, http://www.law.emory.edu/fileadmin/journals/eilr/26/26.1/Guiora.pdf 54 OpenSalon, March 26th 2013, http://open.salon.com/blog/watchingfrogsboil/2013/03/25/aumf_2001_is_the_disease_ndaa_2012_is_only_one_ symptom Presidential War Powers 36
Defining the limits of Executive Authority, for example in the AUMF, is critical to reign in detention powers in this area.55 For the negative, the detention debate provides a number of points for offensive. In terms of disadvantages, Greg Jacobs, Legal partner at O’Melveny & Myers, Policy Director at the Service Women’s Action Network, and combat veteran, provides a nice overview of the main disadvantages to providing Habeas rights to detainees. In this particular article, Mr. Jacobs and Professor Stephen Vladeck provided written responses to each other’s arguments, providing credibility to the quality of both aff and neg ground for detention policy. For instance, expanding Habeas rights to detainees would severely harm our war on terror efforts:
Greg Jacob , Partner at O’Melveny & Myers in Washington, D.C, and Policy Director at the Service Women's Action Network, “Detention Policies: What Role for Judicial Review?”, October 20 12 , http://www.abajournal.com/magazine/article/detention_policies_what_role_for_judicial_review/
Probably the most important war on terror decision handed down by the D.C. Circuit since Boumediene was decided is Maqaleh, in which the court declined to extend the writ of habeas corpus to aliens captured abroad, designated enemy combatants and held at Bagram Air Force Base in Afghanistan. From the military’s perspective , the nightmare scenario has always been the prospect that the judiciary would assert the right to engage in a searching inquiry into the basis for every capture and detention of an alien abroad, even while active combat operations are ongoing . In World War II, such a rule could have required the government to litigate hundreds of thousands of habeas claims , costing the government significant expense and causing substantial disruption to military operations. Maqaleh puts such fears to rest.
The status quo provides a sufficient check on detainees rights – Expanding those rights further would be a substantial burden to commanders in the battlefield and clog the Courts.
Greg Jacob , Partner at O’Melveny & Myers in Washington, D.C, and Policy Director at the Service Women's Action Network, “Detention Policies: What Role for Judicial Review?”, October 20 12 , http://www.abajournal.com/magazine/article/detention_policies_what_role_for_judicial_review/
Does the Maqaleh rule create the possibility, and perhaps even the likelihood, of erroneous detentions? Certainly. Mankind has not yet devised a perfect system for correcting such errors. But the decision is founded on a principle long recognized by the courts: That absent extraordinary circumstances, the cost to security of judicial interference in active overseas military operations outweighs the liberty cost of potentially erroneous detentions pursuant to those operations . Thus, five years after World War II formally ended, the Supreme Court declined to extend the writ of habeas corpus to prisoners held in Germany, explaining that “such trials would hamper the war effort and bring aid and comfort to the enemy. … It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home .” Through Maqaleh, these legitimate concerns continue to govern the enemy combatant jurisprudence of
55 Laurie R. Blank, 63 Rutgers L. Rev. 1169, Summer 2011, Lexis Presidential War Powers 37
today. The law developed by the D.C. Circuit for reviewing enemy combatant habeas petitions is perhaps more important for its symbolic than its practical effect, as the government has stopped transferring detainees to Guantanamo Bay, and the number of individuals to which the body of law applies is thus small and shrinking. Nevertheless, we are a nation that prizes liberty, fairness and the rule of law, and the Boumediene court may well have been correct that outside the theater of war, the liberty cost of potentially erroneous detentions must under some circumstances outweigh the security costs attendant to habeas review. The key question in a habeas inquiry concerning a captured enemy combatant is not whether the individual committed a crime, but whether the government properly designated the individual an enemy combatant. This inquiry requires review of highly classified intelligence reports, which often contain hearsay statements gathered from a variety of intelligence sources. The D.C. Circuit has established that hearsay evidence is admissible in detainee review cases (al-Bihani v. Obama), that the recording of hearsay statements by government agents is entitled to a presumption of regularity, but not to a presumption that the recorded hearsay statements are actually true (Latif), that the various items of evidence used by the government to support a detention must be viewed by a reviewing court as a whole, rather than in isolation (Salahi v. Obama), and that a governmental showing by a preponderance of the evidence is sufficient to support a detention (Bihani). These standards, which have for the most part gained the support of judges across the D.C. Circuit’s ideological spectrum, are both flexible and fair, ensuring that detainees are not held at the whim of the executive and with no supporting evidence, while recognizing that judicial review of military detentions requires some reasonable alterations to the habeas standards to which we are more accustomed.
Judicial review for detainees captured on the battlefield would hinder the effectiveness of the operations – the link is not small – you should be especially reluctant given that SQ checks are sufficient to solve
Greg Jacob , Partner at O’Melveny & Myers in Washington, D.C, and Policy Director at the Service Women's Action Network, “Detention Policies: What Role for Judicial Review?”, October 20 12 , http://www.abajournal.com/magazine/article/detention_policies_what_role_for_judicial_review/
Professor Vladeck simply cannot imagine how judicial review of military detentions, even in active theaters of war, could possibly disrupt the government’s war efforts. If the courts order that detainees be released, then judicial review was clearly necessary to correct erroneous detentions. And if the courts do not order that detainees be released, then what does the government have to complain about? By this standard, judicial review of military detentions is always justified, without regard to cost or outcome. But of course, this standard does not measure the true cost of judicial review. It must be remembered that the kind of judicial review at issue here was not carefully constructed and balanced by our political leaders, but rather was imposed by the courts as a matter of constitutional requirement. The war on terror and the wars in Afghanistan and Iraq are wars of choice waged against vastly outmatched opponents, but constitutional requirements apply equally during wars of necessity in which the nation’s very survival is at stake. We held hundreds of thousands of prisoners of war during the Civil War and World War II —how is Professor Vladeck’s expansive judicial review supposed to be administered under such circumstances without seriously compromising our security interests ? No practicable answer is even remotely suggested in my sparring partner’s essay. Until the new kind of war presented by the war on terror came along, the courts uniformly recognized that war is a matter best handled by the political branches, and that at least in active theaters of combat operations, the judiciary should stay out. That is why the D.C. Circuit’s decision in Maqaleh is so important: It recognizes there are times and places in which the substantial costs in time, energy and resources that necessarily
accompany the judiciary’s error-correcting function simply aren’t worth it , and to which the framers accordingly never intended to extend constitutional habeas protections. To be sure, the circumstances in which constitutional habeas protections do not apply are carefully circumscribed; U.S. citizens, for example, will always be entitled to habeas review. And after Boumediene, most if not all aliens detained domestically will be as well. But within that narrow sphere from which the judiciary has been excluded —and has by and large accepted its exclusion—the time, energy and resources at stake can be a matter of life or death for our troops, and for the nation as a whole. Professor Vladeck does not believe the stakes could possibly be so high. And in a war of choice in which only a few hundred detainees being held an ocean away from the front lines are permitted access to our courts, perhaps they are not. But how could the military possibly have defended hundreds of thousands of habeas petitions in the midst of World War II? With the witnesses to captures primarily being front-line soldiers still engaged in fighting, should we pull half of Easy Company out of Operation Market Garden to type up detention affidavits? With military intelligence attempting to secure mission- critical information that could turn the tide of war, should we allow their operations to be chilled and disrupted by a stream of discovery requests? And having disarmed enemy troops on the battlefield and placed them in detention camps where they can do no further harm, Presidential War Powers 38
should we rearm them with legal causes of action that will consume significant time and manpower to defend, and further provide them a public platform from which to denounce the United States? In light of these costs and disruptions, it is unsurprising that the Geneva Conventions, for example, do not even hint at any kind of judicial review requirement for the ordinary detention of military prisoners. Will mistakes be made in war, including erroneous detentions? Certainly. Would robust judicial review correct those errors? Some of them, probably. Courts are no more infallible than military review boards, however, and the fact that the D.C. Circuit has overturned every award of habeas relief the government has appealed shows that courts get it wrong plenty of the time, too—having reached opposite conclusions in those cases, the district court and the court of appeals cannot both be right. In the end, however, Professor Vladeck simply presents no evidence that the D.C. Circuit’s habeas review procedures have failed to provide adequate error correction for the Guantanamo detainees, or that the expected benefits of extending such review to active theaters of war would outweigh the attendant costs.
In addition to these disadvantages, there are a number of critical implications to detention affirmatives that negative teams could explore. For example, there is an implicit assumption by the affirmative that a detainee could, at some point, receive a “fair trial”. This is questionable in our current security focused worldview. The article below is not peer-reviewed, but it provides a nice summary of a potential negative criticism of “fair trials for detainees”. Ondelette , “Can a terrorist get a fair trial?,” August 2, 2009 http://my.firedoglake.com/ondelette/2009/08/02/can-a-terrorist-get-a-fair-trial/
On both sides of the debate over detention and what to do with all the prisoners who have been denied rights, abused, tortured, rendered, or kept incommunicado, both during and after
the Bush administration’s foray into lawless incarceration, there is an implicit assumption that a terrorist can get a fair trial if
brought to a ‘regularly constituted court’, to use the phrase from the Geneva Conventions. Those in favor of continued
detention without charge worry that such a person will get too many rights, rights they believe should be restricted to those
who ‘deserve’ them. Those opposed to the current state of indefinite detention and those who have vigilantly opposed torture and promoted human rights often point to the near flawless record of convictions of terrorists in U.S. courts as proof that the country will be safe if real trials are
held. Glenn Greenwald, for instance, rightfully calls the ability to convict terrorists in court "breathtakingly broad": Second, as a result of breathtakingly broad criminal laws in the U.S. defining "material support for terrorism," there are few things easier than obtaining a criminal conviction in federal court against people accused of being Terrorists. Even if the only thing someone has done is joined a group decreed to be a Terrorist organization, without even engaging in (or even planning) any violent acts, federal
prosecutors are well-armed to convict them. So can a terrorist get a fair trial ? Let’s make it specific: What would sane behavior look like for Aafia Siddiqui, whose competency hearing was held on July 6th, during which she interrupted the hearing with outbursts like, "I’m not psychotic — I can assure you I am not", "I didn’t ask to come here", and reportedly stated that the real reason she wished to be declared competent was so she could fire her counsel. Judge Berman handed down his ruling finding her competent on July 29th, the New York Times wrote it up here, and you can read the decision, together with Ms. Siddiqui’s letter which was disseminated to bolster the contention of those in the courtroom that she was "off" at the hearing, and to prove she was anti-Semitic, amalgamated by the Times, here. At first glance, the judge’s decision seems straight-forward. He outlines the previous filings and court appearances in the case, check. He then summarizes the testimony of five psychiatrists who had observed her, check. He kind of takes a poll over these psychiatrists, factoring in his own courtroom judgments, check…er, or maybe a little off, how do you poll 3 prosecution psychiatrists and 2 defense psychiatrists and come to a fair outcome? He states the applicable law and the burden of proof, and the rights of the defendant. Apparently, under the law he states, she had the right to testify for herself during the hearing, as opposed to shouting out her rebuttals and being told to be quiet. There is no record that she did so testify or was asked if she wanted to. But it kind of goes deeper than that. In August 2008, as part of a signed deposition, her lawyer at the time, Elizabeth Fink, stated that, "Based on multiple factors and investigation, I have a good faith basis to believe that [Dr. Siddiqui] is a victim of torture,…" and had asked that she be transferred to "the Forensic Unit at Elmhurst Hospital administered by the New York City Department of Corrections…", which Judge Berman notes in his ruling (p. 5, p.8 of the NYT amalgamated pdf), "is not a part of the BOP".Which presumably is why they sent her to Carswell, TX, to a Federal criminal psychiatric unit, which is where she got the notion that she had but this one hearing to speak if she were declared unfit, "I’ve seen what the drugs do and people can’t speak." You see, there is another important distinction between the facility at Elmhurst and that at Carswell. Elmhurst has forensic psychiatrists who specialize in torture victims. The five hundred pound gorilla in Aafia Siddiqui’s courtroom is whether or not the U.S. government or agents for another power on behest of the U.S. government, held and tortured her for 5 years, and disposed with or are still holding one or two of her children. She says so. Her family says so. Her son recounts being shackled and moved from place to place. Moazzam Begg and Binyam Mohamed believe they saw her at Bagram. And something has to account for psychological symptoms which were variously described as, depressive psychosis, paranoid schizophrenia, PTSD, and tangentiality, none of which are commonly contracted without a major incident when someone is in their thirties. Even if that "mental disease" as it was put when she went to Carswell, is not sufficient grounds for her to be mentally unfit to stand trial. The prosecution psychiatrists found her to be malingering: a psychological term for exhibiting behavior purposely to achieve an end, which they assumed was to be declared unfit and avoid prosecution "for her crimes". All the psychiatrists, perhaps at Judge Berman’s request, discussed in their testimony how to distinguish where jihadi extremism leaves off and insanity begins. The trial has not yet begun, there have been no witnesses supposedly called (except to determine her mental state) and yet there is a determination of "jihadi extremism" assumed by all? The verdict first, trial after! Although she is not charged with any act of terrorism (what she is charged with is very similar to charging her with being an unlawful combatant in many ways, cf. Major Frakt on Mohamed Jawad), the prosecution has entered court papers tying the case to that of Uzair Paracha, who was convicted in the same court of participating in a plot to blow up gas stations. The only witness accusing the mastermind of the plot, Majid Khan, recanted. Mr. Khan is unfit for trial (three suicide attempts after being held at a black site and then Guantanamo Bay). The plot was divulged by someone named Khalid Sheikh Mohammad in custody, he of the 183 waterboarding sessions. Again, torture comes into U.S. courts. Is it legal to assert intelligence against a plotter taken in torture?Uzair Paracha’s other accomplice, other than, that is, Majid Khan, was supposed to be Aafia Siddiqui, the "al Qaeda Matahari". Who also is supposed to have negotiated $30 million dollar blood diamond deals in Sierra Leone and taken the money back to al Qaeda in Afghanistan while putting her thesis material together for a journal article and taking care of her own and her neighbors kids in Roxbury, Mass. And a lot of other things. Put simply, in the courtroom during her competency hearing, the prosecution wanted her put away for life in ADO Florence,CO, the defense wanted her put away for life in Carswell, TX, the Judge is finding her anti-Semitic, and the court reporters want her convicted a half a mile from ground zero. No possibility of an Istanbul Protocol examination, no investigation into her disappearance, no hunt for her children (the court in Pakistan which had ordered one was itself ordered out of existence yesterday, because it had been constituted during the Musharraf emergency, it’s up to the Senate there to re-instate any court orders over the next 120 days). So about those outbursts which the judge treated as insanity while they were happening, and as malingering afterward: Exactly what would sane behavior in such circumstances have been? There is always more. No consular access in Afghanistan, no judicial hearing for extradition, interrogation while she was hospitalized at Craig Joint Theater Hospital in Bagram with wounds the U.S. military considered non-life threatening but required removal of part of her intestines and possibly one kidney and caused her to lose consciousness (note the FBI notes at page 41 of the NYT amalgamation). That’s an interesting phenomenon, that interrogation. Rumors are that she was on a restraint bed with 24/7 lights during that two weeks at Craig. She supposedly opened up to the same people who had just shot her a few days before? And why wasn’t she read her Miranda Rights then until she arrived in court in Manhattan, on August 5, 2008 before Judge Ellis
(S.D.N.Y., p.4 of the NYT amalgamation), the judge who remarked at the time that her extradition from Afghanistan had been speedier than he could get a prison from across town in Brooklyn. At the end of the day, unless and until the conditions of her previous treatment are brought into the court, until information explicitly derived from torture by waterboarding is banned from the courtroom, until a defendant can testify at her own competency hearing, until she is given proper tests for a credible allegation of torture, until subpoenas can be assured for the Ghazni police and the governor of Ghazni, who say she never fired on anyone and the U.S. officers panicked and shot, until the U.S. Attorney who wrote extraordinary rendition memoes for the State
Department that rival those of John Yoo and Jack Goldsmith (see this, for example) is forbidden to introduce damning evidence to the judge before the trial starts, Aafia Siddiqui goes on trial not as a defendant who is innocent until proven guilty, but as a terrorist, who is getting far more
justice than she deserves, isn’t she? Besides, she believes in Zionist plots. The days of the ACLU going to bat for George Presidential War Powers 39
Lincoln Rockwell are long forgotten . And Ms. Siddiqui probably wouldn’t accept them anyway, she also believes in Indian plots, American plots, just about any kind of plot imaginable. Just like someone
who’s been kept in extreme isolation too long, hunh? There was another woman who in fact became a fugitive from justice and the subject of a nationwide manhunt because she didn’t feel she could ever get a fair trial in America. Does anybody remember Angela Davis?
We can also envision a rather persuasive “whitewashing” argument. Changing our detention policy certainly wouldn’t end some of the more egregious practices of the war on terror, and could potentially result in more drone strikes if “taking prisoners” is not an option. Such an argument is talked at greater length in the general section of the topic paper.
4. Warrantless Wiretapping As a presidential war power that operates at the intersection of debates about foreign policy, the war on terror, and civil liberties, warrantless wiretapping promises to be a unique and exciting case area. Although it might not appear that wiretapping would be a “war power,” the Bush administration used commander in chief powers to justify the need for National Security Agency use of illegal wiretaps. Louis Fisher 2008, Specialist in Constitutional Law, Law Library, Library of Congress, “Domestic Commander in Chief: Early Check by Other Branches,” CARDOZO LAW REVIEW, http://loc.gov/law/help/usconlaw/pdf/cardozo_fisher.pdf
Broad definitions of the President’s role as commander in chief in contemporary times would have astonished the framers , particularly when the title is meant to justify and empower the president to take offensive actions against other nations without coming first to Congress for approval. During George W. Bush’s administration, the Commander in Chief Clause has regularly been invoked to justify the creation of military commissions and decide their rules and procedures ; designate U.S. citizens as “enemy combatants” and hold them indefinitely without being charged, given counsel, or ever tried; engage in “extraordinary rendition” to take a suspect from one country to another for interrogation and likely torture; and authorize the National Security Agency to listen to phone conversations between the United States and a foreign country involving suspected terrorists .1
Like many of the other subareas of this controversy, candidate Obama promised to revoke the authority to conduct illegal wiretapping. However, President Obama has extended Bush-era policies and justifications for these policies. For example, without much attention, Obama reauthorized the PATRIOT Act, which allows for a number of surveillance options in order to fight terrorism.56 In addition, Congress passed and Obama signed a five year extension to the Foreign Intelligence Surveillance Act, which
56 Radley Balko & Gene Healy, “Obama, Civil Liberties, And The Presidency: An Interview With Gene Healy,” Huffington Post, March 15, 2013, http://www.huffingtonpost.com/2013/03/15/obama-civil-liberties- and_n_2885529.html Presidential War Powers 40
authorizes warrantless wiretapping and new internet taps. 57 Although recent Court rulings have been made that appear to limit executive wiretapping powers, these rulings have created such as high bar for plaintiffs that the decisions are virtually meaningless. Julian Sanchez ’12 , Cato Institute, 8/10, Illegally Wiretapped? Sorry, the Courts Won’t Help You. http://www.cato.org/blog/illegally-wiretapped-sorry-courts-wont-help-you-0
In a case challenging the latest version of NSA’s vaccum-cleaner wiretapping, Amnesty v. Clapper, the Obama administration is arguing that only those who can demonstrate that they have actually been wiretapped (under a top secret program) are eligible to sue the government—and that therefore the courts should toss out a suit brought by lawyers, journalists, and activists who regularly communicate with clients and sources in the Middle East, reasonably believe (based on public information) that their communications are highly likely to be swept up in the NSA’s broad collection programs, and have taken costly measures to reduce the risk of this occurring. The trouble here is that almost none of the thousands or millions of people intercepted—many (if not most) of whom are entirely innocent—will ever
be informed about the surveillance of their calls and e-mails . As the legislative history of FISA makes clear, Congress expected that most electronic surveillance for intelligence purposes was not necessarily being conducted with a view to criminal prosecution. Moreover, federal prosecutors actually decline to pursue about 80 percent of the terrorism-related cases referred to them by the FBI. Perversely, then, the most evidently guilty stand some chance of learning they have been spied on—but the innocent almost never will, and thus never have an opportunity to have a court determine whether their rights have been violated. Because the plaintiffs in Amnesty are seeking a ruling on the legality of current and future surveillance, rather than monetary damages for past conduct, this latest ruling doesn’t necessarily sink their suit, which the Supreme Court is slated to hear in October to determine whether the challenge can proceed. There too, however, the Obama administration’s position is that it should not. ¶
And, as Sachez concludes, there is little hope that the Court will intervene to limit the Obama administration’s use of wiretapping.
Julian Sanchez ’12 , Cato Institute, 8/10, Illegally Wiretapped? Sorry, the Courts Won’t Help You. http://www.cato.org/blog/illegally-wiretapped-sorry-courts-wont-help-you-0
“we’re now approaching seven years since the original exposure of Bush’s version of the NSA spy program, widely deemed illegal by experts, yet with no decisive public ruling on the question from our courts, and no real prospect that the thousands of innocents spied upon
will ever get an opportunity to seek redress.”
Two potential advantages for a wiretapping affirmative could be about: (1) the restoration of separation of powers; and (2) the revitalization of American democracy. The U.S. wiretapping program hurts American democracy and will be used to spy on dissenters:
Sanchez ’08 Julian Sanchez is a Washington writer who studies privacy and surveillance., 3-16-08, Los Angeles Times, Wiretapping's true danger, http://articles.latimes.com/2008/mar/16/opinion/op-sanchez16/2
As the battle over reforms to the Foreign Intelligence Surveillance Act rages in Congress, civil libertarians warn that legislation sought by the
White House could enable spying on "ordinary Americans ." Others, like Sen. Orrin Hatch (R-Utah), counter that only those with an "irrational
fear of government" believe that "our country's intelligence analysts are more concerned with random innocent Americans than foreign terrorists overseas." ¶ But focusing on the privacy of the average Joe in this way obscures the deeper threat that warrantless wiretaps
poses to a democratic society. Without meaningful oversight, presidents and intelligence agencies can -- and repeatedly have -- abused their surveillance authority to spy on political
57 Dell Cameron, Motherboard, 4-5-13, 'Going Dark': What's So Wrong with the Government's Plan to Tap Our Internet?, http://motherboard.vice.com/blog/fbi-data-wiretap-trevor-timm-interview Presidential War Powers 41
enemies and dissenters .¶ The original FISA law was passed in 1978 after a thorough congressional investigation headed by Sen. Frank Church (D-Idaho) revealed that for decades, intelligence analysts -- and the presidents they served -- had spied on the letters and phone conversations of union chiefs, civil rights leaders, journalists, antiwar activists, lobbyists, members of Congress, Supreme Court justices -- even Eleanor Roosevelt and the
Rev. Martin Luther King Jr . The Church Committee reports painstakingly documented how the information obtained was often "collected and disseminated in order to serve the purely political interests of an intelligence agency or the administration, and to influence social policy
and political action ." ¶ Political abuse of electronic surveillance goes back at least as far as the Teapot Dome scandal that roiled the Warren G. Harding administration in the early 1920s. When Atty. Gen. Harry Daugherty stood accused of shielding corrupt Cabinet officials, his friend FBI Director William Burns went after Sen. Burton Wheeler, the fiery Montana progressive who helped spearhead the investigation of the scandal. FBI agents tapped Wheeler's phone, read his mail and broke into his office. Wheeler was indicted on trumped-up charges by a Montana grand jury, and though he was ultimately cleared, the FBI became more adept in later years at exploiting private information to blackmail or ruin troublesome public figures. (As New York Gov. Eliot Spitzer can attest, a single wiretap is all it takes to torpedo a political career.) ¶ In 1945, Harry Truman had the FBI wiretap Thomas Corcoran, a member of Franklin D. Roosevelt's "brain trust" whom Truman despised and whose influence he resented. Following the death of Chief Justice Harlan Stone the next year, the taps picked up Corcoran's conversations about succession with Justice William O. Douglas. Six weeks later, having reviewed the FBI's transcripts, Truman passed over Douglas and the other sitting justices to select Secretary of the Treasury (and poker buddy) Fred Vinson for the court's top spot. ¶ "Foreign intelligence" was often used as a pretext for gathering political intelligence. John F. Kennedy's attorney general, brother Bobby, authorized wiretaps on lobbyists, Agriculture Department officials and even a congressman's secretary in hopes of discovering whether the Dominican Republic was paying bribes to influence U.S. sugar policy. The nine-week investigation didn't turn up evidence of money changing hands, but it did turn up plenty of useful information about the wrangling over the sugar quota in Congress -- information that an FBI memo concluded "contributed heavily to the administration's success" in passing its own preferred legislation. ¶ In the FISA debate, Bush administration officials oppose any explicit rules against "reverse targeting" Americans in conversations with noncitizens, though they say they'd never do it. ¶ But Lyndon Johnson found the tactic useful when he wanted to know what promises then-candidate Richard Nixon might be making to our allies in South Vietnam through confidant Anna Chenault. FBI officials worried that directly tapping Chenault would put the bureau "in a most untenable and embarrassing position," so they recorded her conversations with her Vietnamese contacts. ¶ Johnson famously heard recordings of King's conversations and personal liaisons with various women. Less well known is that he received wiretap reports on King's strategy conferences with other civil rights leaders, hoping to use the information to block their efforts to seat several Mississippi delegates at the 1964 Democratic National Convention. Johnson even complained that it was taking him "hours each night" to read the reports. ¶ Few presidents were quite as brazen as Nixon, whom the Church Committee found had "authorized a program of wiretaps which produced for the White House purely political or personal information unrelated to national security." They didn't need to be, perhaps. Through programs such as the National Security Agency's Operation Shamrock (1947 to 1975), which swept up international telegrams en masse, the government already had a vast store of data, and presidents could easily run "name checks" on opponents using these existing databases. ¶ It's probably true that ordinary citizens uninvolved in political activism have little reason to fear being spied on, just as most Americans
seldom need to invoke their 1st Amendment right to freedom of speech. But we understand that the 1st Amendment serves a dual role: It protects the private right to speak your mind, but it serves an even more important structural function, ensuring open debate about matters of public importance. You might not care about that first function if you don't plan to say anything controversial. But anyone who lives in a democracy,
who is subject to its laws and affected by its policies, ought to care about the second .¶ Harvard University
legal scholar William Stuntz has argued that the framers of the Constitution viewed the 4th Amendment as a
mechanism for protecting political dissent . In England, agents of the crown had ransacked the homes of pamphleteers critical of the king -- something the
founders resolved that the American system would not countenance. ¶ In that light, the security-versus-privacy framing of the contemporary FISA debate seems oddly incomplete. Your personal phone calls and e-mails may be of limited interest to the spymasters of Langley and Ft. Meade. But if you think an executive branch unchecked by courts won't turn its "national security" surveillance powers to political ends -- well, it would be a first.
Undoubtedly the biggest disadvantage to wiretapping affirmatives will be the argument that giving the Commander and Chief broad latitude to conduct domestic surveillance operations is necessary to combat terrorism. Teams that read wiretapping affirmatives can get offense in that debate contending that broad wiretapping programs hurt our counter-terror efforts.
Agrast ’06 Mark Agrast is a Senior Fellow at the Center for American Progress. Ken Gude is the Associate Director of the International Rights and Responsibility Program at the Center for American Progress. February 2, 2006, Center for American Progress, NSA Domestic Warrantless Wiretapping and the “Trust Me” President, http://www.americanprogress.org/issues/civil- liberties/news/2006/02/02/1836/nsa-domestic-warrantless-wiretapping-and-the-trust-me-president/
The constitutional rights of an unknown number of innocent Americans have been violated .
And the program has compromised our national security in three primary ways .¶ First , it has jeopardized the prosecution of alleged terrorists . If evidence obtained under the warrantless surveillance program was or will be used in any criminal prosecutions (as the administration has asserted), then those convicted or accused terrorists can and surely will raise a constitutional
challenge, potentially irreparably jeopardizing these criminal cases .¶ Second , the NSA program could harm ongoing investigations . The FISA Court , which approves or denies applications for FISA warrants, Presidential War Powers 42
could shut down any counterterrorism wiretaps that it authorized on the basis of unlawfully collected information . This is not a hypothetical situation. In 2001, the FISA Court shut down numerous wiretaps after learning that the FBI had supplied faulty information in the FISA warrant
applications. ¶ Third , the program has misdirected resources that would be better spent pursuing
terrorists . NSA eavesdropping – “turning on the spigot” in the words of former NSA Director Michael Hayden –
yielded a tremendous volume of information that led nowhere .
Wiretapping is also a fruitful area for critical affirmatives about the modern surveillance state. There are many philosophical objections to Bush and Obama’s wiretapping efforts:
Williams ’09 Daniel R. Williams ** Associate Professor, Northeastern University School of Law, Boston, MA, 2008 - 2009 ¶ Michigan State Journal of International Law ¶ 17 Mich. St. J. Int'l L. 493, AVERTING A LEGITIMATION CRISIS AND THE PARADOX OF THE WAR ON TERROR, Lexis
II. DOMESTIC WARRANTLESS SURVEILLANCE AND MONARCHICAL SOVEREIGNTY IN AN AGE OF TERROR ¶ Within days of 9/11, the N ational S ecurity A gency n18 launched a surveillance program n19 that would, upon public disclosure, expose a paradox: the United States, perhaps the most open society ever witnessed in history, already had the apparatus and the wherewithal to be perhaps the most sophisticated surveillance state ever witnessed in [*499] history. We do not know how to comprehend this paradox n20 --and so, I suspect, we pretend it does not exist. Bobbitt seems to understand the dilemma arising from this paradox when he says that the "most difficult intelligence challenge of all" is finding a way "to develop rules that will effectively empower the secret state that protects us without compromising our commitment to the rule of law." n21 We can all join Bobbitt in decrying our nation's lassitude in trying to resolve this paradox by simply turning away from it. n22 ¶ Domestic spying, without warrants, and thus bypassing judicial oversight, was carried out without public awareness and congressional approval, performed in the name of national security; before 9/11, such surveillance perhaps seemed to some to be a rather fanciful, archaic, a sort of it-can't-happen-here activity that needn't worry us too-busy Americans. When the New York Times broke the story that the Bush Administration did exactly that, when we learned that it actually did happen, that it was happening, that arguments were being marshaled and rhetorical code words and scare tactics were being pumped through all our media outlets to justify it, many regarded the revelation as uncovering something new, not just another feature of this state of exception we call post-9/11 America, a.k.a. the War on Terror. n23 ¶ That is the sense one gets from reading Eric Lichtblau's account of his experiences as a New York Times reporter covering the Bush Administration's construction and prosecution of the War on Terror, in [*500] his book, Bush's Law. n24 There is no considering the possibility that, in fact, what we were witnessing, are witnessing, is not something new at all, but rather something old-- the resurgence of something so old and out of mind that we thought it was dead and gone: monarchical rule, which in its classical form is the expression of a nation's sovereignty through the power of a King . That possibility is not only considered in another account of the Bush Administration's handling of the War on Terror--the excellent book, Unchecked and Unbalanced: Presidential Power in a Time of Terror, by Frederick A.O. Schwarz Jr. and Aziz Huq--it is the principal accusation leveled at the architects of this War. n25¶ Because this country was built upon the earlier defeat of the monarchical ideal, a defeat that occurred in the wake of the English Civil War and the Glorious Revolution of 1688; n26 because the Founding Generation was radical enough to replace that defeated ideal with a modernist constitutional framework dedicated to a system of power- sharing; n27 because the historical record is replete with convincing evidence that the Founding Generation feared and repudiated the notion of an executive power that gave discretionary authority to disregard legislative enactments n28 --because of all this, Schwarz and Huq argue, the resurgence of monarchical-style sovereignty, dressed up in the academically neutered name, the unitary executive theory, is more than just worrisome--it threatens democracy itself. n29 Though they are somewhat tentative and sparing in their analysis of exactly why democracy is threatened, it seems clear to this author that the threat is ominous precisely because this resurgence is occurring at a time when our public sphere has been degraded through a spiritually deadening and ecologically unsustainable consumerism. The media has the unprecedented power and sophistication to manipulate wants, tastes, and opinions, and the onset of more devastating terrorist attacks within the United States is virtually assured. n30¶ [*501] We may miss out on the most fundamentally troubling aspects of what is taking place at this precarious moment in our nation's history if we see the NSA spy scandal as merely or primarily a question of legality: Did the President and others in his administration, or the lawyers who enabled the War on Terror, break the law? The NSA spy scandal exemplifies the Bush Administration's view that the commitment to divided and shared powers--a vital hallmark of our constitutional system, if not the key ingredient of it--must bend to accommodate a new form of sovereignty, a new vision of state power, one where this Nation must act decisively through executive action unburdened by other branches of the government.¶ This state of emergency requires, on this view, not the actions of a government, but the actions of a Nation, and the Nation must express itself not through governmental activity, but through the bold and decisive decision making of its Head of State. So, when the government detains people without formal due process (often indiscriminately and recklessly), the President is exercising sovereign authority in a way that trumps an existing regime of rights whereby the government must justify the detention through an established juridical process. What is crucial to see in the many cases of indiscriminate detention is that this exercise of sovereign authority is not one in defiance of law, but rather is a form of sovereignty that expresses itself through the manufacturing of law, the creation of an entirely new legal regime that has at its core the anachronistic ideal of monarchy. n31¶ A clear rhetorical signal of this resurgence of the monarchical ideal is the prevalence of the word deeming. We are becoming a nation where the State may deem you a dangerous person through a suitable label like terrorist, and an entirely new regime of legality gets triggered, a regime heretofore Presidential War Powers 43
unimagined in this country. n32 Deeming is not proving. Deeming is a form of identifying under the mantle of assumed authority. In times of old you could be deemed worthy of detention; in this country, we have long believed, you must be proven to deserve detention. Monarchs deem; Presidents don't.¶ [*502] The NSA spy scandal is another, perhaps starker, revelation of ambition to convert the Presidency into a modern-day monarchy where a new regime of law governing domestic surveillance must come into existence in this time of emergency, not through normal political channels, but through the sheer force of the President's authority as Head of State . Some suggest that it is in that sense that the Bush Administration's policies threaten to render this country unrecognizable .
And, warrantless wire-tapping leaves us in a permanent state of racial exception.
Michaelsen & Shershow ’05 Scott Michaelsen is an associate professor of English at Michigan State University. Scott Cutler Shershow is Professor of English and director of the graduate program in Critical Theory at the University of California, Davis. Discourse 27.2&3 (2005) 124-154, Is Nothing Secret?, Project Muse, online
We have written elsewhere about one other notable exception to the warrant requirement that is of particular concern here because of its direct theoretical linkage to the USA PATRIOT Act and therefore to FISA warranting procedures: the so-called "border exception," or what we have called " the permanent state of racial exception " (also, see Kerr). In a long series of Supreme Court rulings in the 1970s, the approximately 200,000 miles of the Mexico/U.S. borderlands were deemed exceptional with regard both to warrants and probable cause, thus permitting the U.S. Border Patrol to stop automobiles in random car stops and at checkpoints— searching for undocumented aliens—under a doctrine of suspicion that Chicano activists have long called "DWM" ("Driving While Mexican") (Michaelsen 96–97). In this way, Chicanos and Mexicanos have been subjected for decades to a rule of law in the borderlands that strips everyone riding in automobiles of even basic Fourth Amendment rights, as well as what the U.S. Supreme Court has called a "right to travel" that "has been firmly established and repeatedly recognized" (United States. v. Guest 757; and cf. Michaelsen and Shershow, "Practical Politics"). ¶ This overall doctrine of "border exception" was the crucial precedent for the FISA Court when it issued a rare public ruling in 2002 on the constitutionality of the dismantling of the "firewall" between law enforcement wiretapping governed by Title III (for example, by the FBI) and more generalized foreign surveillance operations governed by FISA law (CIA/NSA, for instance). In this decision, known as In re: Sealed Case No. 02–001, the three-member court suggested that the need to maintain the "integrity of the border" constitutes the sort of ongoing, permanent "emergency" that lays the constitutional foundation for the USA PATRIOT Act. This would be a rule of law in which, the court concedes, traditional "Fourth Amendment warrant standards" are not met, but in which we "come close" to meeting them. The only question that remains is whether "close" is the right word for a system in which the CIA , for instance, is entitled to wiretap whomever the [End Page 129] Secretary of State deems "an agent of a foreign power" ( flexibly defined so as to
equate the figure of the typically racialized foreigner with an inherent criminality ) and to turn
over any evidence of criminal activity directly to the FBI for prosecution (Michaelsen 93–94). ¶ In other words, the ongoing, racialized application of the law of the U.S. Border Patrol and the USA PATRIOT Act has already stretched traditional Fourth Amendment requirements past the breaking point. The prosecution of all of the relevant cases falling within this network of emergency law, and the deportation of illegal immigrants by the United States Citizenship and Immigration Service, takes place in a legal environment that for decades has been dismantling the requirements of warrants and probable cause when it comes to persons of color. In effect, a permanent and fully-institutionalized exceptionalism , beginning in the Fourth Amendment and spreading progressively outward, has now dismantled the distinction between the "alien" and the "citizen" (or what Carl Schmitt called the "enemy" and the "friend ") to such an extent that massive groupings of persons of color in the United States (Chicanos, Mexicanos, peoples of the southern Americas in general; and now Arab nationals, Arab-Americans, and Islamic peoples in general) live under what one has to call a fully-racialized rule of law.
A potential solvency mechanism is for Congress to repeal FISA or for the executive to take measures to increase accountability.
Jones ’09 TIM JONES, Electronic Frontier Foundation, 4-16-09, New Wiretapping Revelations Should Prompt New Action from
Congress and the White House, https://www.eff.org/deeplinks/2009/04/new-revelations Presidential War Powers 44
The article also provides details of an NSA attempt in 2005 or 2006 "to wiretap a member of Congress, without court approval, on an overseas trip." As EFF and others have pointed out before, allowing the NSA unchecked access to our domestic telecommunications network will inevitably lead to this kind of political abuse .¶ These revelations underline the need for new action on NSA surveillance abuses, both from Congress and from the White House .¶ Congress should repeal or reform the FISA Amendments Act, as it has now become undeniable that the checks it set on surveillance power are insufficent and dysfunctional. In addition, Congress should establish a comission or a select committee to fully and publicly investigate the NSA program, past and present .¶ As for the White House and the DOJ — First, they should do as Senator Feingold recommended earlier today, and waive the state secrets privilege in pending surveillance litigation. Second, they should withdraw their baseless claims of sovereign immunity. These simple actions would clear the way for true accountability through an independent judicial ruling on the legality of the program.
Another solvency mechanism would include creation of an independent executive agency created by FISA to review the reasonability of each individual wiretap. Adam Burton, associate at White & Case LLP in New York, 2006 , “Fixing FISA for Long War: Regulating Warrantless Surveillance in the Age of Terrorism,” Pierce Law Review, Summer, pp. LN.
The terrorist attacks of September 11 unleashed an unprecedented epoch in modern United States history characterized by the consciousness of vulnerability. Fear of another attack, especially one involving weapons of mass destruction, has provoked a recalibration of the balance between civil liberties and the power of the state on the one hand and between the powers of Congress and the President on the other. The Bush Administration asked for and received controversial new legal tools expanding the capability of the executive to conduct foreign intelligence surveillance with the enactment of the Patriot Act . However, the Administration concluded that these amendments to FISA, while useful, granted insufficient power to the President to uphold his constitutional duty to protect the United States, and therefore authorized the NSA to begin surveillance on selected persons within the United States outside the guidelines established by the Patriot Act. With this bold, extra-legal act, the President returned the conduct of foreign intelligence surveillance to the pre-FISA era, reclaiming for the executive the unfettered discretion to direct intelligence collection by the procedures the Administration alone deems necessary and proper . While these procedures might be "reasonable" under the Fourth Amendment, the Administration's efforts to evade any meaningful congressional or judicial supervision of the program presents problematic questions regarding the President's constitutional right to decide unilaterally how best to balance individual rights with the needs of the state . If the President must have the power to conduct warrantless surveillance, then there must be adequate checks on that power to ensure it is used responsibly and properly. An independent executive agency appointed by the FISA court with the power to review the reasonability of individual surveillance would provide that check without inhibiting the President's ability to gather foreign intelligence information .
Despite these strong affirmative arguments, wiretapping is certainly a controversial area ripe for debate. Many people defend the practice of wiretapping and claim it has been effective at preventing terrorist Presidential War Powers 45
attacks with minimal costs to our privacy.58 For instance, warrantless wiretapping is a necessary evil --- it’s the only way to track terrorists. Increased congressional oversight would slow down the process and invite attacks:
Yoo ’09 Mr. Yoo is a law professor at the University of California, Berkeley. He was an official in the Justice Department from 2001-03 and is a visiting scholar at the American Enterprise Institute. 7-16-09, Wall Street Journal, Why We Endorsed Warrantless Wiretaps, http://online.wsj.com/article/SB124770304290648701.html#mod=rss_opinion_main
It was instantly clear after Sept. 11, 2001, that our security agencies knew little about al Qaeda's inner workings, could not detect its operatives' entry into the country, nor predict where it might strike next .¶ Suppose an al Qaeda cell in New York, Chicago or Los Angeles was planning a second attack using small arms, conventional explosives or even biological, chemical or nuclear weapons. Our intelligence and law enforcement agencies faced a near impossible task locating them. Now suppose the National Security Agency ( NSA ), which collects signals intelligence, threw up a virtual net to intercept all electronic communications leaving and entering Osama bin Laden's Afghanistan headquarters. What better way of detecting follow- up attacks? And what president -- of either political party -- wouldn't immediately order the NSA to start, so as to find and stop the attackers?¶ Evidently, none of the inspectors general of the five leading national security agencies would approve. In a report issued last week, they suggested that President George W. Bush might have violated the 1978 Foreign Intelligence Surveillance Act (FISA) by ordering the interception of international communications of terrorists without a judicial warrant. The report also suggests that "other" intelligence measures -- still classified only because they are yet to be reported on the front page of the New York Times -- similarly lacked approval from other branches of government. ¶ It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States . Congress enacted FISA during the waning days of the Cold War. As the 9/11 Commission found, FISA's wall between domestic law enforcement and foreign intelligence proved dysfunctional and contributed to our government's failure to prevent the 9/11 attacks .¶ Under FISA, to obtain a judicial wiretapping warrant the government is supposed to show probable cause that a specified target is a foreign agent . Unlike, say, Soviet spies working under diplomatic cover, terrorists are hard to identify . Yet they are vastly more dangerous . Monitoring their likely communications channels is the best way to track and stop them. Building evidence to prove past crimes, as in the civilian criminal system, is entirely beside the point . The best way to find an al Qaeda operative is to look at all email, text and phone traffic between Afghanistan and Pakistan and the U.S . This might involve the filtering of innocent traffic, just as roadblocks and airport screenings do. ¶ In FISA, President Bush and his advisers faced an obsolete law not written with live war with an international terrorist organization in mind . It was to meet such emergency circumstances that the Founders designed the presidency. As John Locke first observed, foreign threats "are much less capable to be directed by antecedent, standing, positive laws." Legislatures are too slow and their members too numerous to respond effectively to unforeseen situations . Only the executive can act to protect the "security and interest of the public. "¶
In addition to preventing foreign threats, wiretapping is useful to several law enforcement duties, such as combating domestic “homegrown” terrorism.
New York Daily News ’09 – 9/25, Enemies within: America must face the threat posed by homegrown terrorists, http://www.nydailynews.com/opinion/enemies-america-face-threat-posed-homegrown-terrorists-article-1.407896
58 John G. Malcolm, 9-18-12, Heritage Foundation, Foreign Intelligence Surveillance Amendments Act of 2008 Set to Expire, http://www.heritage.org/research/reports/2012/09/foreign-intelligence-surveillance-amendments-act- of-2008-set-to-expire Presidential War Powers 46
Homegrown terror, so lightly dismissed by so many for so long, is sprouting perilously from American soil . Najibullah Zazi, indicted this week on charges of plotting an Al Qaeda bomb strike, is the terrifying face of a strain of radical, violent Islam within the U.S. ¶ His case history documents how terrorists can fade into the fabric of the country's pluralistic population and how easily they can fashion explosives out of readily available products. ¶ But Zazi is not alone: ¶ Brooklyn-born Betim Kaziu was charged Thursday with attempting to join a Pakistani-based Al Qaeda affiliate in hopes of killing U.S. troops. ¶ Jordanian Hosam Maher Husein Smadi was arrested Thursday in Dallas for putting what he believed was a car bomb in an office-tower garage.¶ Michael Finton, a 29-year-old Illinois man who idolized American Taliban John Walker Lindh, was arrested Wednesday on charges of plotting to bomb a federal courthouse. ¶ Long Islander Bryant Neal Vinas was busted in July for allegedly training with Al Qaeda in Pakistan, joining rocket attacks on U.S. forces and giving "expert advice" on the subways and Long Island Rail Road. ¶ Three U.S. citizens and a Haitian immigrant were charged in May with conspiring to plant 37 pounds of explosive at two Bronx synagogues. ¶ Three illegal-immigrant brothers from Macedonia were sentenced in April to life for plotting in 2007 to kill soldiers at Fort Dix, N.J. ¶ Zazi, who was born in Afghanistan , ran a Manhattan doughnut cart. That's how law-abiding, hardworking and, yes, normal, he seemed even as, probers believe, his heart beat as an engine of mass destruction. ¶ How plausible his denials seemed before his arrest. The fire in his brain is matched by the ice in his veins. And, evidence indicates, he was well on the way to assembling devices, concealable in backpacks, that could have blown speeding trains off their rails. ¶ New York and America are lucky the NYPD and FBI grabbed Zazi before he wreaked havoc. But his associates are out there, with more to come. ¶ That's why the see-something- say-something rule must be reinforced . Why authorities must educate sellers of beauty and hair products that can be perverted to evil. Zazi bought loads of such stuff in Colorado. ¶ Why New Yorkers must accept the mild intrusion of even more bag inspections in the subways. And why Congress must not weaken Patriot Act provisions that enable authorities, with warrants, to wiretap and seize records of terror suspects.
Warrantless wiretaps are also necessary to check domestic organized crime, drug trafficking, and white collar crime. Freeman 13 , Law Office of John Freeman, © 2013, Hedge-Fund Mogul Raj Rajaratnam Sunk by Wiretap Evidence, http://www.formerfedlawyer.com/CM/Articles/Wiretapping-a-New-Tactic- for-Prosecutors-in-White-Collar-Cases.asp, date accessed: 4/12/13
Wiretapping has typically been used for building cases against organized-crime families and drug traffickers. The jump to white-collar crime marks a bold new direction in government prosecution. With such a powerful tool, the government can be expected to use wiretapping extensively in future insider-trading investigations . Prosecutors should not expect this new tactic to go unchallenged. Wiretapping raises significant concerns over privacy rights. Defense attorneys are likely to heavily scrutinize and aggressively challenge the use of wiretap evidence in the white-collar criminal arena .
5. DOD Covert Operations The Bin Laden raid was demonstrative of the impressive intelligence gathering and military capabilities of the United States. Perhaps most impressive was the level of secrecy that was maintained which allowed this mission to succeed. After the operation defense secretary Leon Panetta offered an important explanation that helped explain how this mission was kept secret. By describing the mission as a title 50 action Panetta defined the mission to kill Bin Laden not as a department of defense military Presidential War Powers 47
operation, but rather as an intelligence gathering operation that carried with it significantly different standards for oversight. 59 This raid illustrates what the stakes are in the debate over Presidential powers and the department of defense. With the increased use of covert operations and intelligence gathering activities as a tool of foreign policy there is an increased emphasis on executive control over foreign affairs. 60 This debate encompasses two of the biggest concerns when selecting a topic. It is a timely issue that governs ongoing policy, as the United States continues to pursue the war on terror the President’s role as commander in chief will continue to be a topic for public policy debates. At the same time, changes like those in the literature are sufficiently difficult to manage that massive changes are unlikely to take place and interfere with affirmative inherency or negative uniqueness claims. Mechanisms Mechanisms for the affirmative to constrain Presidential power to command the use of the CIA and covert operations through the DOD are diverse. This is due to the immense power the Presidency has in the status quo to use both the CIA and the military to pursue foreign policy objectives. We will describe two basic ways that the affirmative could constrain Executive decision making power. The first is to constrain the Executive power to pursue foreign policy objectives. To do this could take several forms. One of the more straightforward approaches advocated by Vermule 61 would be to create judicial oversight. This would be done by overturning case law in the Vermont Yankee decision which limited judicial oversight of Executive agencies. Vermule hypothesizes that such a decision would establish grounds for judicial oversight that could constrain executive decision making ability. This is not done by establishing Supreme Court oversight of every Executive action. Instead, it would authorize lower courts to create legal tests that constrain what the Executive might legally do. The emphasis in this mechanism is using lower courts to set precedent. Although my review will focus on advantage areas intrinsic to the Executive power to use the CIA and covert operations it is worth noting that there is a lively debate over the desirability of empowering lower courts that provides significant advantage and disadvantage ground.
59 Wall, Andru. (2011): “Demystifying the Title 10-Title 50 Debate: Distinguishing Military Operations, Intelligence Activities & Covert Action”, Harvard National Security Journal, Vol. 3. http://harvardnsj.org/wp- content/uploads/2012/01/Vol.-3_Wall1.pdf 60 Carusan, Kiki and Farar-Meyers, Victoria. (2007): “Promoting the President's Foreign Policy Agenda: Presidential Use of Executive Agreementsas Policy Vehicles”, Political Research Quarterly, Vol. 60, No. 4. http://www.jstor.org/stable/4623862. 61 Vermoule, Adrian. (2009): “Our Schmittian Administrative Law”, Harvard Law Review, Vol. 122, No. 4. http://www.jstor.org/stable/40379741 . Presidential War Powers 48
There is also the option for the affirmative to use the courts to overrule specific cases that are relevant to Presidential powers. While much of this conversation has taken place with regards to the detainment of prisoners during the War on Terror there is ample ground for it to be applied to Presidential power more generally. A recent article by Charlie Savage 62 reported on a Supreme Court decision that limited the ability of the CIA to maintain the secrecy surrounding the drone program. While that particular issue will be covered in greater detail in other parts of the paper the grounds offered in that decision dealing with government secrecy significantly limit the way the Executive would be able to use the CIA or covert operations. There are legislative means by which the power of the Presidency could be limited as well. The first of these would be to limit funding for such operations. Traditionally this is done through wording written into appropriations bills that require oversight be permitted as a condition for funding special programs. While this mechanism has the limitation that at times the Executive has rejected such restrictions the use of funding as a bargaining tool has been proven to be effective in many cases . 63 This approach has been frequently used in the context of Department of Defense operations as a way to limit what policy options are available to the President. A significant part of the problem with providing limitations on Presidential authorities is the difficulty in getting information on CIA activities dispersed to both houses in congress. One solution that has been proposed has been increasing the frequency of joint hearings. 64 Joint hearings would allow for congress to take united action to limit executive powers. This could be done either in conjunction with or separate from empowering the Government Accounting Office to audit the intelligence community. As Halchin and Kaiser argue, such a move would provide an investigative approach which does not rely on self-disclosure from the intelligence community. This would again, enable congress to receive more complete information on Executive activities which would allow for limits to be placed on Presidential power. The second approach to limiting Presidential power over the CIA and covert operations is discussed in other parts of the paper, but I will briefly point out the particular import that it has here. Many of the policies that pertain to the functioning of the CIA and covert operations are derived from Executive Orders, Signing Statements, and other policy documents released by the Presidency. A
62 Savage, Charlie. (2013): “Court Orders the C.I.A. to Disclose Drone Data”, New York Times, March 15. http://www.nytimes.com/2013/03/16/us/court-says-cia-must-yield-some-data-on-drones.html?_r=3&. 63 Elsea, Jennifer; Garcia, Michael and Nicola, Thomas. (2013): “Congressional Authority to Limit Military Operations”, Congressional Research Service. http://www.fas.org/sgp/crs/natsec/R41989.pdf. 64 Halchin, Elaine and Kaiser, Frank. (2012): “Congressional Oversight of Intelligence: Current Structure and Alternatives”, Congressional Research Service. http://www.fas.org/sgp/crs/misc/97-936.pdf Presidential War Powers 49
particularly noteworthy example can be found in the signing statement attached to The Department of Defense and Emergency Supplemental Appropriations for Recovery from and Response to Terrorist Attacks on the United States Act, 2002 . In this signing statement Bush specifically rejected demands that congress be notified of funding for special programs including covert operations. Steps taken by either Congress or the Legislature to override similar documents would also very easily be defended on constraints against the exercise of Presidential power on foreign policy. (Dis)Advantage Ground An important consideration in this topic area is the inherent bidirectionality of the advantage ground. Limiting Presidential power could ostensibly be either good or bad from almost any political perspective. For every advantage that a plan can claim to solve, there are also significant negative claims that the status quo or an anti-topical counterplan to solve the same advantage. In this section I will break down the advantage areas and briefly articulate what I think are reasonable affirmative and negative claims to each. The first advantage is bureaucratization. As Wall notes there is a major tension that exists between the DOD and CIA regarding human intelligence operations. As a result information gathering is weakened by a lack of information sharing that begins with the Presidential limitations on congressional involvement. Because congress does not know which activities each branch claims they are unable to properly fund either agency. A potential solution would be to decrease Executive control by allowing greater congressional influence on decision making over what each branch is responsible for by providing oversight. An advantage dealing with bureaucratization has clear implications for military effectiveness based on the basic claim that accurate intelligence is a pre-requisite to military activity. A distinct policy option available to the negative is to argue that Executive authority is needed to resolve this particular problem. As Wall argues later in his article, the Executive because of its more unitary character is better suited to a more nuanced definition of what intelligence gathering powers ought to be given to which agency. As such, the negative could argue that the Presidential power to define the functions of its agencies should be expanded beyond the powers currently permitted by Congress. A second advantage is war powers. Although this is discussed in other parts of the paper, covert operations could also fall under the war powers debate. Because declarations of war can be done by deed or word, there is a legitimate claim that congress should have the ability to veto certain covert operations that could be described as acts of war (Sloan et. Al 2012). This change of powers offers numerous advantages to how the U.S. utilizes its covert forces and the CIA. Presidential War Powers 50
The first advantage is international law:
Sloan et. al 2005 (Virginia E., Spencer Boyer, Sharon Franklin, Joseph Onek, Amber Lindsay, Pedro Ribeiro, and Kathryn Monroe. Deciding to Use Force Abroad: War Powers in a System of Checks and Balances. The Constitution Project, 2005. http://www.constitutionproject.org/pdf/War_Powers_Deciding_To_Use_Force_Abroad1.pdf)
Although treaties are part of the supreme law of the land, authorization by a treaty organization such as the North Atlantic Treaty Organization or by an international body such as the United Nations Security Council for the use of force to preserve international or regional peace and security is not a constitutional substitute for authorization by Congress. Whether or not initiating the use of force abroad by the United States is lawful under international law or authorized by a treaty to which the United States is a party or by an international organization of which it is a member, under our Constitution only Congress can authorize initiating the use of force abroad except for a limited range of defensive purposes. Congress can also condition the use of force on compliance with international law or with treaty obligations. Furthermore, it can express its sense that the President should consult with an international organization before he or she orders the use of force abroad. But it cannot delegate to any international body the decision whether to use force.
This advantage would provide a good bridge to debates about the role of U.S. military policy governing covert operations in the context of international law. There is a wide body of literature that calls into question the legitimacy of the way the United States uses covert operations capabilities as a way to avoid the standards set by international law. This affirmative would work to impose compliance and gives the affirmative ready access to a wide body of literature. There is also significant ground for the negative to argue this issue as well. There are legitimate sovereignty disadvantages that could be used to respond not just to affirmatives defending international law as an advantage, but affirmatives that seek to limit Executive authority to use exceptional and unconventional military and intelligence gathering techniques. The vigorous responses offered by the Executive branch to such attempts through signing statements and other mechanisms gives reason to believe that the sovereignty of the United States could be effected by limiting the Presidential authority to conduct foreign affairs. The second advantage is terrorism:
Sloan et. al 2005 (Virginia E., Spencer Boyer, Sharon Franklin, Joseph Onek, Amber Lindsay, Pedro Ribeiro, and Kathryn Monroe. Deciding to Use Force Abroad: War Powers in a System of Checks and Balances. The Constitution Project, 2005. http://www.constitutionproject.org/pdf/War_Powers_Deciding_To_Use_Force_Abroad1.pdf)
The Declare War Clause gives Congress the choice between authorizing the use of force abroad by declaration of war or by legislation Public accountability for the decision to use force requires that Congress speak as clearly in legislation as it does in a declaration. Under this constitutionally-derived clear statement rule, which is restated in the WPR, authorization for the use of force abroad should not usually be inferred from a general defense appropriation, let alone from other legislation regarding military procurement, conscription or other collateral subjects. However, the nature and source of terrorist attacks and threats Presidential War Powers 51
posed by WMD, and the need for secrecy and speed in clandestine operations against them, may justify more general authorization of some counter-terrorist operations that are not already authorized by the President’s defensive war power . Even in such cases, Congress must always state the purposes and scope of its authorization as clearly as the circumstances permit in order to satisfy the constitutional objectives of legislative deliberation and political accountability.
What is distinct in this congressional declaration is a clear understanding for what operations must commence. While this card notes that secrecy is a concern, general authorization resolves many of these problems. At the same time, a constitutional mandate for public accountability is upheld representing a major change in status quo policies. There is also the advantage of congress being able to offer a broader mandate than what is constitutionally available to the Executive. The third advantage is collective judgment:
Sloan et. al 2005 (Virginia E., Spencer Boyer, Sharon Franklin, Joseph Onek, Amber Lindsay, Pedro Ribeiro, and Kathryn Monroe. Deciding to Use Force Abroad: War Powers in a System of Checks and Balances. The Constitution Project, 2005. http://www.constitutionproject.org/pdf/War_Powers_Deciding_To_Use_Force_Abroad1.pdf)
Neither consulting nor notifying Congress is a substitute for its collective judgment expressed in authorizing legislation. In any case, all members of the War Powers Initiative agree that it is in the President’s institutional interests and in the national interest for the use of force abroad to be supported by the collective judgment of Congress and the President, because such a judgment reflects a political consensus that makes them jointly responsible for the resulting costs. To persuade a majority of both houses of Congress to make the collective judgment that the use of force is in the national interest, a President must, in effect, persuade the people. If he cannot persuade the people’s representatives, he is unlikely to persuade the people who elected them.
This advantage would be at the core of many affirmative cases on the topic. The advantage argues that a more restrained military policy is desirable and requiring congressional authorization is an effective means to do that. This creates a consistent link for a number of different takes on the standard hegemony advantage. Rather than arguing that a particular policy or technology is key to maintaining hegemony, in this case there is a debate to be had over what hegemony looks like. Rather than continuing the same hackneyed debates over military dominance and power projection more nuanced advantages based on limited visions of U.S. leadership become much easier ground for the affirmative to defend. This advantage would focus debates on how subjecting covert operations and intelligence gathering can help create a more limited vision of U.S. leadership. By contrast the negative has strong arguments for a more conservative vision of U.S. leadership. Rather than the more militarily restrained vision created under the affirmative the negative would be able to argue for a more aggressive use of covert operations to maintain U.S. military or geopolitical Presidential War Powers 52
dominance. This could be done again, either through the use of anti-topical counterplans or disadvantages that contend that the status quo Executive leadership makes executing covert operations easier. Specific to the CIA there is significant advantage ground to be argued based on the need to strengthen congressional oversight. Perhaps most broad and intuitive is the claim advanced by Genevieve Lester that almost every foreign policy failure including 9/11 is the result of an intelligence failure (2011). This creates the possibility for both broad advantages based on the need for stronger oversight generally to improve the quality of intelligence. It also allows for the ability to make more specific claims over the need to improve intelligence in particular regions. The foundational role that the CIA plays in geopolitics makes for very diverse affirmative advantage ground that can be accessed with changes in oversight and leadership. Overall, we would strongly advocate that this area be included in a topic dealing with Presidential powers. There are legitimate mechanisms with a strong academic literature base. This is also an incredibly timely and pressing issue. As the United States continues to pursue the War on Terror and use unconventional means to gather intelligence and pursue military objectives the need to question Executive authority will only grow larger. We foresee one realistic argument against the inclusion of this topic. The changes that would be made would by definition be substantial and would require a complete change in the way the constitution is interpreted. The result is that some parts of the literature base could be considered extremist or unrealistic. We offer two responses. The first is that the War Powers Resolution demonstrates that such changes are not unrealistic, but rather occur in response to perceived problems. The second is that this is what makes for good negative ground. If the affirmative is allowed to defend very minute changes the ability for the negative to generate substantive links is very small. The larger change required by the affirmative to address these harms are both realistic and a good basis for debate. 6. Approval for UN/NATO Action Obligations created by international and security treaties implicate the larger debate about unchecked presidential war powers. In particular, presidents frequently contend that U.S. participation in NATO or UN-authorized military operations are automatic treaty requirements that do not require prior congressional approval or declaration of war. The 2011 military intervention in Libya sparked a large debate in the literature about both the role of the UN and NATO and executive war powers.
Presidential War Powers 53
Jeremiah Gertler et al, “No-Fly Zones: Strategic, Operational, and Legal Considerations for Congress ,” CRS Report for Congress, April 4, 2011 , http://www.fas.org/sgp/crs/natsec/R41701.pdf
On November 7, 1973, Congress passed the War Powers Resolution , P.L. 93-148, over the veto of President Nixon. The War Powers Resolution (WPR) states that the President’s powers as Commander in Chief to introduce U.S. forces into hostilities or imminent hostilities can only be exercised pursuant to (1) a declaration of war; (2) specific statutory authorization; or (3) a national emergency created by an attack on the United States or its forces. It requires the President in every possible instance to consult with Congress before introducing American Armed Forces into hostilities or imminent hostilities unless there has been a declaration of war or other specific congressional authorization . It also requires the President to report to Congress any introduction of forces into hostilities or imminent hostilities, Section 4(a)(1); into foreign territory while equipped for combat, Section 4(a)(2); or in numbers which substantially enlarge U.S. forces equipped for combat already in a foreign nation, Section 4(a)(3). Once a report is submitted “or required to be submitted” under Section 4(a)(1), Congress must authorize the use of force within 60 to 90 days or the forces must be withdrawn. Since the War Powers Resolution’s enactment in 1973, every President has taken the position that this statute is an unconstitutional infringement by Congress on the President’s authority as Commander in Chief. The courts have not directly addressed this question, even though lawsuits have been filed relating to the War Powers Resolution and its constitutionality. Some recent operations—in particular U.S. participation in North Atlantic Treaty Organization ( NATO) military operations in Kosovo, and in U.N.-authorized operations in Bosnia and Herzegovina, in the 1990s —have raised questions concerning whether NATO operations and/or U.N.-authorized operations are exempt from the requirements of the War Powers Resolution. Regarding NATO operations, Article 11 of the North Atlantic Treaty states that its provisions are to be carried out by the parties “in accordance with their respective constitutional processes,” implying that NATO Treaty commitments do not override U.S. constitutional provisions regarding the role of Congress in determining the extent of U.S. participation in NATO missions. Section 8(a) of the War Powers Resolution states specifically that authority to introduce U.S. forces into hostilities is not to be inferred from any treaty, ratified before or after 1973, unless implementing legislation specifically authorizes such introduction and says it is intended to constitute an authorization within the meaning of the War Powers Resolution. Regarding U.N.-authorized operations, for “Chapter VII” operations, undertaken in accordance with Articles 42 and 43 of the U.N. Charter, Section 6 of the U.N. Participation Act, P.L. 79-264, as amended, authorizes the President to negotiate special agreements with the U.N. Security Council, subject to the approval of Congress, providing for the numbers and types of armed forces and facilities to be made available to the Security Council. Once the agreements have been concluded, the law states, further congressional authorization is not necessary. To date, no such agreements have been concluded. Given these provisions of U.S. law, and the history of disagreements between the President and the Congress over presidential authority to introduce U.S. military personnel into hostilities in the absence of prior congressional authorization for such actions, it seems likely that a presidential effort to establish a “no-fly zone” on his own authority would be controversial. Controversy would be all the more likely if the President were to undertake action “pre-emptively” or in the absence of a direct military threat to the United States .
This part of the controversy provides bidirectional advantage ground for affirmatives. On one hand, affirmatives could contend that the precedent set by the NATO Libya operation is dangerous because it justifies reckless foreign policy that will fuel adventurist and diversionary wars and will undermine global non-proliferation efforts. For instance, David Gibbs, Associate Professor of History and Political Science at the University of Arizona , “Libya and the New Warmongering,” Foreign Policy in Focus, January 12, 2012, http://www.globalpolicy.org/security-council/index-of-countries-on-the-security-council- agenda/libya/51177-libya-and-the-new-warmongering.html
The NATO intervention in Libya is likely to produce a more militarized and insecure world , and this will be its most enduring legacy. The military “success”in Libya has increased the possibility of new Presidential War Powers 54
wars. There is a widespread perception that NATO has achieved an easy victory against Gaddafi, and the resulting sense of hubris augments the risk of future military actions against Iran, Syria, and other possible targets . Politicians in NATO countries surely welcome the public distraction that war provides, especially in the context of the world-wide economic slump, and this may prove an additional motivation for new military action . And the Libyan success will generate heightened levels of military expenditure . The British military has already been using the intervention as an argument for more funding; the same situation will no doubt occur in France and the United States as well, where the intervention will bring political benefits to the military-industrial complexes of each country. Given limited funds, the relatively higher military budgets that result from this situation will probably reduce funds for education, health, environmental protection, and disease eradication, and also for aid to developing countries, which include Libya. Another consequence of intervention is the erosion of international law, as indicated by NATO’s disregard of the UN Charter and also the U.S. War Powers Resolution, which were openly flouted in the course of the bombing campaign and the efforts at regime change . In previous eras, U.S. liberals might have criticized the unchecked use of executive power shown by the Obama administration. But such concerns are a thing of the past. With Libya, liberals have shown themselves to be perfectly comfortable with an “imperial presidency.” In addition, the intervention constitutes a setback for international cooperation aimed at curbing nuclear proliferation: NATO’s decision to overthrow Gaddafi after he had agreed to give up his nuclear weapons development program will surely dissuade other countries such as North Korea from repeating Gaddafi’s mistake . The significance of the intervention will thus extend far beyond Libya itself, and it is this larger class of implications that constitutes the most dangerous implication of the intervention. No one likes to think about the long-term consequences of policy actions, especially where “victory” is involved; but these long-term consequences will remain, all the same, and international security will be compromised as a result.
On the other hand, affirmatives could contend that the Libya mission creates a dangerous precedent that overly constrains U.S. hard power through justifying the UN’s Responsibility to Protect (R2P) doctrine. For instance, affirmatives can argue that the R2P precedent allows for the UN to veto future US military operations, which destroys US hard power. Steven Groves, Groves, Bernard and Barbara Lomas Senior Research Fellow in Heritage’s Margaret Thatcher Center for Freedom , “Obama Wrongly Adopts U.N. “Responsibility to Protect” to Justify Libya Intervention,” Heritage Foundation, March 31, 2011 , http://www.heritage.org/research/reports/2011/03/libya-intervention-obama-wrongly-adopts- un-responsibility-to-protect
R2P Constrains U.S. Decision Making Therefore it would appear that the Obama Administration has adopted both the basic philosophy and the operational characteristics of R2P . This should come as no surprise when the key decision makers regarding Libya included Samantha Power, who authored a Pulitzer Prize-winning book on genocide, and Secretary of State Hillary Clinton, who promised during her presidential campaign to “operationalize” the R2P doctrine and “adopt a policy that recognizes the prevention of mass atrocities as an important national security interest of the United States, not just a humanitarian goal” and “develop a government-wide strategy to support this policy, including a strategy for working with other leading democracies, the United Nations, and regional organizations .”[5] But the Administration should renounce its flirtation with R2P and reject it as its philosophical basis for military intervention. Adhering to the R2P doctrine sets a dangerous precedent. The more nations that appear to follow the doctrine out of a sense of obligation, the more that the doctrine may be considered to have attained normative status—a step towards recognition of R2P as binding customary international law. If R2P is considered to have attained Presidential War Powers 55
that status, its principles may be considered obligatory, rather than voluntary . Such an occurrence is likely to constrain U.S. action in the future . Inevitably a time will come when the U.S. will want to intervene in a situation, perhaps to stop an atrocity, only to be criticized for not first
receiving authorization from the U.N. Security Council. U.S. strikes against a nation’s leadership in some future intervention may be condemned as “disproportionate” to the humanitarian mission of protecting a civilian population. In short, by adopting the principles of R2P in the Libyan intervention, the President is legitimizing the doctrine and raising the bar for justification for future U.S. military actions.
Additionally, affirmatives could argue a libertarian perspective in contending that any alliance system is problematic because it creates obligations on the U.S. to respond to threats to other members of the alliances, which risks entangling the U.S. in regional conflicts that risk nuclear-armed power confrontation. For instance, Ted Galen Carpenter of the CATO Institute and Christopher Layne, the Robert M. Gates Chair in Intelligence and National Security at the George Bush School of Government and Public Service at Texas A&M University, have written a number of articles that make these kinds of claims. For example, Ted Galen Carpenter, vice president for defense and foreign policy studies at the Cato Institute , “NATO at 60: A Hollow Alliance,” CATO Policy Analysis, No. 635, March 30, 2009, http://www.cato.org/publications/policy-analysis/nato-60-hollow-alliance
Although NATO has added numerous new members during the past decade, most of them possess minuscule military capabilities. Some of them also have murky political systems and contentious relations with neighboring states, including (and most troubling) a nuclear-armed Russia. Thus, NATO’s new members are weak, vulnerable, and provocative — an especially dangerous combination for the U nited States in its role as NATO’s leader. There are also growing fissures in the alliance about how to deal with Russia. The older, West European powers tend to favor a cautious, conciliatory policy, whereas the Central and East European countries advocate a more confrontational, hard-line approach. The United States is caught in the middle of that intra-alliance squabble. Perhaps most worrisome, the defense spending levels and military capabilities of NATO’s principal European members have plunged in recent years . The decay of those military forces has reached the point that American leaders now worry that joint operations with U.S. forces are becoming difficult, if not impossible. The ineffectiveness of the European militaries is apparent in NATO’s stumbling performance in Afghanistan . NATO has outlived whatever usefulness it had . Superficially, it remains an impressive institution, but it has become a hollow shell — far more a political honor society than a meaningful security organization. Yet, while the alliance exists, it is a vehicle for European countries to free ride on the U.S.military commitment instead of spending adequately on their own defenses and taking responsibility for the security of their own region. American calls for greater burden-sharing are even more futile today than they have been over the past 60 years. Until the United States changes the incentives by withdrawing its troops from Europe and phasing out its NATO commitment, the Europeans will happily continue to evade their responsibilities. Today’s NATO is a bad bargain for the U nited States. We have security obligations to countries that add little to our own military power. Even worse, some of those countries could easily entangle America in dangerous parochial disputes. It is time to terminate this increasingly dysfunctional alliance.
Unlike in previous debate seasons – particularly during the 2003-2004 Europe topics – when affirmatives could argue that we should withdraw from NATO, under this controversy, affirmatives would being debating about the justifications and precedence established by these alliance and international systems Presidential War Powers 56
for U.S. action. As a result, affirmative mechanisms would include actions such passing Dennis Kucinich’s (D-OH) legislation to require congressional approval for U.S. participation in NATO operations. Nathan White , “Kucinich Legislation Reins in NATO, Reclaims Constitutional War Powers of Congress,” Common Dreams, August 13, 2012 ,https://www.commondreams.org/newswire/2012/08/13-3
Congressman Dennis Kucinich (D-OH) is today urging Members of Congress to support legislation, H.R. 6290, to prevent future presidents from using the North Atlantic Treaty Organization ( NATO) to circumvent Congress’ constitutional authority to declare war . “ NATO has become a sock puppet to conduct military operations abroad absent congressional authorization, as required by Article 1, Section 8 of the Constitution . This practice undermines our Constitution and global security as it allows the president to perpetrate violence without congressional oversight. Congress must fight to regain its basic constitutional right to declare war ,” said Kucinich. H.R. 6290 would prohibit the deployment of a unit or individual of the U.S. Armed Forces or an element of the intelligence community in support of a NATO mission absent prior statutory authorization for such deployment from Congress, as enshrined in Article 1, Section 8 of the Constitution.
Or, affirmatives can argue that the WPR or the United Nations Participation Act should be amended to apply the WPR constraints on U.S. participation in U.N. operations. Richard Grimmett, Specialist in Intl Security, 2012 , “The War Powers Resolution: After Thirty-Eight Years,” Congressional Research Service, Sept 24, www.fas.org/sgp/crs/natsec/R42699.pdf.
With the increase in United Nations actions since the end of the Cold War, the question has been ¶ raised whether the War Powers Resolution should be amended to facilitate or restrain the ¶ President from supplying forces for U.N. actions without congressional approval. Alternatively, ¶ the United Nations Participation Act might be amended, or new legislation enacted, to specify ¶ how the War Powers Resolution is to be applied, and whether the approval of Congress would be ¶ required only for an initial framework agreement on providing forces to the United Nations, or ¶ whether Congress would be required to approve an agreement to supply forces in specified ¶ situations, particularly for U.N. peacekeeping operations.
We also envision affirmatives arguing that future specific NATO and U.N. military operations are bad and that limiting U.S. support for those operations would stop the missions from occurring. There are also a number of critical interrogations into global governance (for instance, Hardt and Negri’s work on Empire could be used for these kinds of arguments) and the whitewashing of U.S. imperialism and the National Security State through alliance and international systems. The negative has a number of excellent arguments its disposal to refute these kinds of affirmatives. In terms of counterplans, the negative can argue that rather than constrain U.S. executive Presidential War Powers 57
authority, full withdrawal from these organizations would best solve the case harms. 65 Additionally, against teams that argue that specific interventions will be dangerous, the negative can argue that Congress should cut DOD funding for particular NATO or U.N. operations. For example, in 2011, House Resolution 2278 was offered to limit use of funds for the NATO operation in Libya. 66 In terms of disadvantages and critiques, negatives can contend that the U.N. is necessary for global humanitarian missions and these are good (see the discussion under “Section V: Core Negative Arguments” for more discussion about this disadvantage). In addition, the negative can argue that Congressional oversight would slow down U.S. response to threats to key European allies or set precedent for other security alliances which would allow aggression against those allies and spark global nuclear conflict. Obviously, significant ground exists for the negative to debate various aspects of U.S. global leadership in relation to alliances and global institutions. The negative also has a number of critical options depending on which direction the affirmative takes with their advantages. Contingent on the direction of the aff, critiques of Empire or U.S. hegemony can be run.
7. Unilateral Preventive Military Operations Many journalists and political pundits denounced President George W. Bush’s National Security Strategy (NSS) of 2002—the Bush Doctrine – as dangerous because it articulated a policy of preemption. However, as David Mitchell and Gordon Mitchell note, the Administration actually enunciated a policy of preventive intervention. 67 The difference between preemption and prevention, as articulated by David Mitchell, is significant: The difference between the two concepts, as presented by Jonathan Renshon in Why Leaders Choose War: The Psychology of Prevention, is that preemption is a type of action taken in the face of an imminent threat, whereas preventive action is designed to "forestall a grave national threat ...that lies in the future.” 68
65 See for instance Doug Bandow, “NATO: An Alliance Past Its Prime,” CATO Institute, April 26, 2012, http://www.cato.org/blog/nato-alliance-past-its-prime and Robert Tracinski, “America Should Withdraw From The United Nations and Let It Collapse,” Capital Magazine, March 21, 2003, http://capitalismmagazine.com/2003/03/america-should-withdraw-from-the-united-nations-and-let-it-collapse/ 66 For a text of the bill, see http://www.gop.gov/bill/112/1/hr2278 67 David Mitchell, “Review: Why Leaders Choose War: The Psychology of Prevention by Jonathan Renshon, Praeger Security International, Westport, 2006,” International Studies Review, Vol 9 (1), 2009, http://www.politicalreviewnet.com/polrev/reviews/MISR/R_1521_9488_257_1007306.asp; Gordon R. Mitchell, “Gordon Mitchell: On the difference between pre-emptive and preventive war,” University of Pittsburgh University Times, Feb 19, 2004, http://www.utimes.pitt.edu/?p=283. 68 David Mitchell, 2009. Presidential War Powers 58
While preemption lays the foundation for a wide range of military interventions, prevention is so open- ended that it would allow the president to justify almost any military intervention without congressional approval. As a presidential candidate, Obama positioned his national security strategy as the opposite of the Bush administration’s. However, once in office, Obama has crafted a NSS that is virtually identical to the Bush Doctrine, particularly the right to act unilaterally to promote democracy through force. 69 According to Representative Dennis Kuchinich (D-OH), the Obama administration has gone one step beyond a preventive war doctrine, which has substantial implications for Executive-Congressional balance of powers over war. Rep. Dennis Kucinich (D-OH), “Obama in Libya,” The Progressive, June 2011 , http://www.progressive.org/kucinich0611.html
In two years, we have moved from President Bush’s doctrine of preventive war to President Obama’s assertion of the right to go to war without even the pretext of a threat to our nation . This Administration is now asserting the right to go to war because a nation may threaten force against those who have internally taken up arms against it . Our bombs began dropping even before the U.N.’s International Commission of Inquiry could verify allegations of murder of noncombatant civilians by the Qaddafi regime. The Administration deliberately avoided coming to Congress and furthermore rejects the principle that Congress has any role in this matter. Yesterday we learned that the Administration would forge ahead with military action even if Congress passed a resolution constraining the mission. This is a clear and arrogant violation of our Constitution.
Affirmatives under this area of the controversy would be able to claim a number of advantages from placing restrictions on preventive war powers. First, affirmatives could claim that status quo doctrine allows for limitless warfare and military intervention in places such as Iran, Syria, Yemen, Mali, Pakistan, North Korea, or China. 70 Or worse, without proper congressional oversight, a president with unlimited justification to prevent future (and perhaps illusory) threats can engage in wag-the-dog diversionary conflicts. 71 Affirmatives also can claim to best protect U.S. leadership and prevent counter-balancing to U.S. hegemony: Neta C. Crawford , professor of political science and African American studies at Boston University , “The Slippery Slope to Preventive War,” Ethics & International Affairs,
69 Michael Hirsch, “Obama's National Security Strategy: Not So Different From Bush's,” The Daily Beast, May 26, 2010, http://www.thedailybeast.com/newsweek/blogs/the-gaggle/2010/05/27/obama-s-national- security-strategy-not-so-different-from-bush-s.html 70 Bruce Fein, “A Limitless Presidency,” 8/17/2012, http://nationalinterest.org/commentary/limitless-presidency- 7360 71 Gene Healy, Cult of the Presidency: America's Dangerous Devotion to Executive Power, CATO Institute, 2008, http://www.cato.org/sites/cato.org/files/documents/cult-of-the-presidency-pb.pdf, p. 209-210) Presidential War Powers 59
Volume 17.1 (Spring 2003 ), http://www.carnegiecouncil.org/publications/journal/17_1/roundtable/868.html
Specifically, a legitimate preemptive war requires that states identify that potential aggressors have both the capability and the intention of doing great harm to you in the immediate future. However, while capability may not be in dispute, the motives and intentions of a potential adversary may be misinterpreted. Specifically, states may mobilize in what appear to be aggressive ways because they are fearful or because they are aggressive. A preemptive doctrine which has , because of great fear and a desire to control the international environment, become a preventive war doctrine of eliminating potential threats that may materialize at some point in the future is likely to create more of both fearful and aggressive states . Some states may defensively arm because they are afraid of the preemptive-preventive state; others may arm offensively because they resent the preventive war aggressor who may have killed many innocents in its quest for total security. In either case, whether states and groups armed because they were afraid or because they have aggressive intentions, instability is likely to grow as a preventive war doctrine creates the mutual fear of surprise attack. In the case of the U.S. preemptive-preventive war doctrine, instability is likely to increase because the doctrine is coupled with the U.S. goal of maintaining global preeminence and a military force "beyond challenge."9
Also, affirmatives can claim a number of international law, diplomacy, and U.S. soft power advantages.
Neta C. Crawford , professor of political science and African American studies at Boston University , “The Slippery Slope to Preventive War,” Ethics & International Affairs, Volume 17.1 (Spring 2003 ), http://www.carnegiecouncil.org/publications/journal/17_1/roundtable/868.html
Further, a preventive offensive war doctrine undermines international law and diplomacy, both of which can be useful, even to hegemonic powers. Preventive war short-circuits nonmilitary means of solving problems. If all states reacted to potential adversaries as if they faced a clear and present danger of imminent attack, security would be destabilized as tensions escalated along already tense borders and regions . Article 51 of the UN Charter would lose much of its force . In sum, a preemptive-preventive doctrine moves us closer to a state of nature than a state of international law. Moreover, while preventive war doctrines assume that today's potential rival will become tomorrow’s adversary, diplomacy or some other factor could work to change the relationship from antagonism to accommodation. As Otto von Bismarck said to Wilhelm I in 1875, "I would . . . never advise Your Majesty to declare war forthwith, simply because it appeared that our opponent would begin hostilities in the near future. One can never anticipate the ways of divine providence securely enough for that."10
As for solvency mechanisms, the affirmative can use a number of potential mechanisms (many of which are already outlined in section IIIB above). For example, as Michael Cohen suggests, affirmatives could modify the AUMF, cut funding for operations, or increase its oversight powers.
Cohen, ’12 (Michael, fellow at the Century Foundation, “The Imperial Presidency: Drone Power and Congressional Oversight,” http://www.worldpoliticsreview.com/articles/12194/the-imperial-presidency-drone-power-and-congressional-oversight)
In a sense we are witnessing a perfect storm of executive branch power-grabbing: a broad authorization of military force giving the president wide-ranging discretion to act, combined with a set of tools -- drones, special forces and cyber technology -- that allows him to do so in unprecedented ways. And since few troops are put in harm’s way, there is barely any public scrutiny. Congress has the ability to stop these excesses. On Libya, it possessed the power to Presidential War Powers 60
turn off the financial spigot and cut off funding, and indeed, there was a tepid effort in the House of Representatives to do so. On the AUMF, Congress could simply repeal it or more realistically modify it to take into account the new battlefields in the war on terror. Finally, it could conduct greater oversight, in particular public hearings, of how the executive branch is utilizing military force. But not only has Congress not taken these steps, in deliberations over the National Defense Authorization Act earlier this year, it tried to expand the AUMF. On the use of drones and targeted killings, Congress has made little effort to demand greater information from the White House and has not held any public hearings on either of these issues. As Micah Zenko recently noted, claims “that congressional oversight of targeted killings exclusively by the intelligence committees in closed sessions is adequate” are “indefensible.”
Bruce Ackerman, professor of law and political science at Yale, maintains that Congress must do something to limit presidential war powers in order to prevent a truly imperial presidency.
Ackerman, ’11 (Bruce, professor of law and political science at Yale and author of The Decline and Fall of the American Republic, “Obama's Unconstitutional War,” 3/24, http://www.foreignpolicy.com/articles/2011/03/24/obama_s_unconstitutional_war?page=0,0 )
The buck stops on Capitol Hill. As always, presidential unilateralism puts Congress in a tough position. It cannot afford to cut off funds immediately and put the lives of Americans, and U.S. allies, in danger. But it can pass a bill denying future funding after three months. This would prevent the president from expanding the mission unless he can gain express congressional consent. The U.S. Congress should also take more fundamental steps to bring the imperial presidency under control. In the aftermath of Watergate, Congress went beyond the War Powers Resolution to enact a series of framework statutes that tried to impose the rule of law on a runaway presidency. Many of these statutes have failed to work as planned, but they were the product of a serious investigation led by Senator Frank Church and Representative Otis Pike during the 1970s. A similar inquest is imperative today. In many respects, Bush's war on terrorism was a more sweeping breach of constitutional norms than anything Richard Nixon attempted in Watergate. Yet Congress has been silent, trusting Obama to clean house on his own. The president has shown, by his actions, that this trust is not justified. If Congress fails to respond, we have moved one large step further down the path to a truly imperial presidency.
This area of the controversy is ripe for critical approaches on the affirmative. A number of critiques of unilateralism, U.S. hegemony, security, and realism can be made into advantages for this type of affirmative. Also, many of the affirmatives listed under Section IIID of this paper could operate as advantages for preventive intervention affs. In addition, affirmatives could critique the status quo as the actualization of Carl Schmitt’s views of the State.
Colonomos, ’09 (Ariel, CNRS senior research fellow at the Centre d’Etudes et de Recherches Internationales and a lecturer at Sciences Po in Paris where he teaches international ethics, has taught at the School of International and Public Affairs (SIPA) at Columbia University as an associate adjunct professor from 2005 to 2007"Preventive War in the Rearview Mirror," http://www.iilj.org/newsandevents/documents/NYUPrevColonomos.pdf)
That being the case, Yoo’s views are consistent with a policy framework of prevention: preventive wars are declared by countries that have a strong executive branch, such as empires, dictatorships, autocracies, and strong presidential regimes. The larger the collective that is in charge of deciding whether or not to launch a preventive intervention, the more numerous the institutions involved in Presidential War Powers 61
these decisions, the greater the risk that the actual declaration of war will be delayed. Measuring the opening in the window of opportunity for prevention is a delicate matter and findings often diverge, resulting in the decision being blocked. In a sense, this principle also has a moral significance: it vests supreme authority within a rigid framework of secular transcendence. John Yoo’s interpretation has a special resonance. It merges into a troubling lineage of thought that echoes Carl Schmitt. The latter, who was strongly influenced by Hobbes and his concept of the strong State, holds the view that when it comes to exceptional situations, the decision should rest with the sovereign. The moment is one of solemnity. Political concepts, such as sovereignty are seen as theological concepts that have been secularized. In this regard, the decision carries with it transcendental implications. Carl Schmitt draws legitimate negative criticism because he supported the Nazi regime during the 30s. His thinking does indeed favor strong executive power and in this regard, he does not dispute the principles that would underlie the exercise of power by a totalitarian regime. Carl Schmitt is also subject to other criticisms that are equally well-founded. He openly expressed anti- Semitic sentiments in one of his books on Hobbes 63. These sentiments were relayed in the context of lamenting a certain breach of verticality or of transcendence that results from a lack of allegiance to the State, a trait which is identified with the Jews.
As for the negative, there are a wide range of potential strategic options against preventive intervention affs. The disadvantages – particularly hegemony and terrorism credibility, critiques, and counterplans listed under section V of this paper apply particularly well to this affirmative area. For example, prevention is necessary to solve terrorism and WMD proliferation:
Yoo, ’05 (John, author of The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11, “An interview with John Yoo,” http://www.press.uchicago.edu/Misc/Chicago/960315in.html)
These new threats to American national security, driven by changes in the international environment, should change the way we think about the relationship between the process and substance of the warmaking system. The international system allowed the United States to choose a warmaking system that placed a premium on consensus, time for deliberation, and the approval of multiple institutions. If , however, the nature and the level of threats are increasing, the magnitude of expected harm has risen dramatically, and military force unfortunately remains the most effective means for responding to those threats, then it makes little sense to commit our political system to a single method for making war. Given the threats posed by WMD proliferation, rogue nations, and international terrorism, we should not, at the very least, adopt a warmaking process that contains a built-in presumption against using force abroad. Earlier scholarly approaches assumed that in the absence of government action peace would generally be the default state. September 11 demonstrated that this assumption has become unrealistic in light of the new threats to American national security. These developments in the international system may demand that the United States have the ability to use force earlier and more quickly than in the past.
Additionally, negatives have a somewhat easier time making politics link arguments under this part of the controversy. For instance,
Cohen, ’12 (Michael A., PhD, Political Economy, University of Chicago, 1971 and Professor of International Affairs and Director at The New School, “Power Grab,” 3/28, http://www.foreignpolicy.com.s2.gvirabi.com/articles/2012/03/28/power_grab) Presidential War Powers 62
What has been Congress's response to this disregarding of its role in foreign policy decision- making? The usual hemming and hawing, but little in the way of concrete action. During the Bush years, Republicans were more than happy to let the president expand his executive powers when it came to Iraq, Afghanistan, and the global war on terrorism. When Democrats took back the House and Senate from Republicans in 2006, they placed greater scrutiny on the Bush administration's conduct of the war in Iraq -- but still continued to fund the conflict. Even in Washington's highly partisan current environment, little has changed; it's mostly sound and fury signifying nothing. Republicans eschewed a constitutional confrontation with the White House over Libya , though the House GOP did make a rather partisan effort to defund the Libya operations (a measure that failed) and still today House and Senate members raise their frustrations in committee hearings over their heavy-handed treatment by the White House. But the actions of some Republicans point in a different direction. Last year, House Armed Services Committee Chairman Buck McKeon actually tried to expand the original Authorization for Use of Military Force that granted U.S. kinetic actions just three days after 9/11 -- which would have actually increased executive war-making power. While some on the Hill have long suspected the constitutionality of the War Powers Resolution, it was one of the few checks that Congress maintained over the president (aside from ability to defund operations, which in itself is a difficult tool to wield effectively). Now they have been complicit in its further watering down. Aside from Ron Paul, there's been little mention of the president's overreach in Libya by the GOP's presidential aspirants. And why should there be? If any of them become president they too would want to enjoy the expanded executive power that Obama has helped provide for them. Quite simply, in a closely divided country in which each party has a fair shot to win the White House every four years, there is little political incentive for either Democrats or Republicans to say enough is enough.
Overall, preventive military operations are a great area for a presidential war powers topic. While we just briefly outline the major arguments and mechanisms here (mostly because the entire controversy paper has been discussing preventive war doctrine as its primary example in many sections), the political and legal issues raised by the Obama NSS offer a strong division of ground between the aff and neg.
D. Critical Approaches to Limiting Presidential Powers
Someone’s first reaction to this topic might be that there are few critical approaches to limiting presidential powers. However, that is not a fair assessment of the literature base. One of the appealing aspects of the topic is that both libertarians and progressives have been highly critical of expansive presidential powers, which provides several points of access for critical investigations of this controversy area. We offer some examples of potential critical approaches to the controversy. 1. Local/National focus and critique of presidentialism
Dr. Dana Nelson, Gertrude Conaway Vanderbilt Professor of English and Director of Graduate Studies at Vanderbilt University, maintains that an unrestrained presidency promotes the myth that all politics are national and controlled by the executive, which undermines local citizen action and democracy and promotes paternalistic relations between local citizens and the federal government. Presidential War Powers 63
Wikipedia http://en.wikipedia.org/wiki/Bad_for_Democracy (yes, Wikipedia is a terrible source, but it offers a nice summery of Nelson’s argument)
Dana Nelson (Bad for Democracy: How the Presidency Undermines the Power of the People, Minneapolis: University of Minnesota, 2008) criticizes excessive worship of the president which she terms presidentialism, that is, "our paternalistic view that presidents are godlike saviors - and therefore democracy's only important figures. "[6] People seem to believe a myth that the president can solve all national problems, and she studies how different presidents have encouraged people to think along these lines. She makes an argument that the office of the presidency is essentially undemocratic, and she calls for greater participation by citizens at the local level .[5] She joins a group of academics including Larry Sabato and Robert A. Dahl and Richard Labunski and Sanford Levinson as well as writers such as Naomi Wolf calling for substantive reform of the current Constitution . Nelson said in a radio interview in January 2009: " The problem with presidentialism is that it trains citizens to look for a strong leader to run democracy for us instead of remembering that that's our job. And it does this in a number of ways. First of all, I think it infantilizes citizens. It teaches us to see the president as the big father of democracy who is going to take care of all the problems for us and handle all of our disagreements. And so that makes us lazy and a little bit childish in our expectations about our responsibilities for our political system. It credits the president with super-heroic powers. Then, that allows him to operate often extralegally and unilaterally, and it teaches us to always want him always to have more power when things are wrong instead of asking why he has so much ." [10]
Nelson notes how presidentialism is linked to expanded presidential war powers:
Nelson, Dana D.. Bad for Democracy : How the Presidency Undermines the Power of the People. Minneapolis, MN, USA: University of Minnesota Press, 2008 . p 110.
What began as a respectful civility in the eighteenth century soon drummed up far more powerful associations. Presidents have actively labored to expand executive branch powers by appealing to their war powers , and in the twentieth century they discovered that they could command higher approval ratings from the nation when they ordered troops into combat. U.S. voters haven’t elected an active-service war veteran since George H. W. Bush, but we continue to link our respect for the presidency with the authority of the military , encouraged in no small part by the actions and gestures of presidents. This chapter reviews the founders’ reasons for conferring on the president the title of commander in chief. After a quick look at Abraham Lincoln’s wartime actions, the chapter examines a series of key twentieth century executive wartime expansions—along with judicial and legislative rebukes, and support. Finally it studies the institutional, political, and cultural consequences of how many have come to think of the nation’s executive as our “commander in chief.”
This focus on the presidency undermines localize movements and practical localized solutions that are already in place. David Sirota , August 22, 2008 , “Why cult of presidency is bad for democracy,” SF Gate, http://www.sfgate.com/politics/article/Why-cult-of-presidency-is-bad-for-democracy- 3272253.php#ixzz2PMRpP5RU
The resulting noise reiterates one message: The only thing that matters is 1600 Pennsylvania Ave. Why is this dangerous? First and foremost, by ignoring local elections and issue-based organizing in favor of presidential politics, activists make presidential progress less likely . " Even the best Presidential War Powers 64
presidents need social movements to accomplish transformational change, " warns community activist Deepak Bhargava in the Nation magazine's latest White House-centric edition. "FDR could not have succeeded without the agitation of the unemployed workers' councils and the unions, and LBJ's greatest accomplishments were made possible by the civil rights movement." Worse, presidentialism leads us to ignore the arenas where issues are already being sorted out . For example, how many of the Democratic convention delegates incensed by the Obama-McCain energy brouhaha have any idea that just beyond Denver's Rocky Mountain horizon, a battle over Colorado's massive gas reserves will more immediately impact the national energy crisis than the inane presidential back-and-forth about offshore drilling ? Better yet, how many Democratic enthusiasts donning Obama T-shirts know who their state representative or city council member is - or even what a state legislature or city council does? In his upcoming book, "You Can't Be President," journalist John MacArthur ponders the depressing answers to these kinds of questions, reminding readers of Alexis de Tocqueville's 19th century writing. "It is in vain to summon a people, which has been rendered so dependent on the central power, to choose from time to time the representatives of that power ," he observed. "This rare and brief exercise of their free choice, however important it may be, will not prevent them from gradually losing the faculties of thinking, feeling and acting for themselves, and thus gradually falling below the level of humanity." Published 168 years ago, the passage is a prescient warning as the upcoming Democratic and Republican conventions toast presidentialism's conquest of democracy in America.
Reigning in presidential powers through demands from the people solves presidentialism.
Jeremy Engels , “Bad for Democracy: How the Presidency Undermines the Power of the People (review),” Rhetoric & Public Affairs, Volume 12, Number 3, Fall 2009 , pp. 479-80
In turn, Nelson demonstrates that presidents have been particularly good at running with the needs and desires of citizens to strengthen the office of the president . Today, Nelson argues, we find ourselves at a crucial juncture from which there might be no turning bac k, as the Roberts Supreme Court is one justice away from gaining a majority that will support the vision of a unilateral, corporate president who stands above the other branches of government and can, during wartime, do anything he chooses. “ Once we’re there ,” she speculates, “it’s hard to see how we might take a more robust democracy—the kind of democracy where citizens have and can exercise self-governing power—back from the uncheckable presidency imagined by MansfIeld, Cheney, Bush, and other hardline unitary executive proponents” (180). This problem , Nelson concludes, “ will not likely be remedied by any person we elect to the Oval Office”—the answer will have to come from the people regaining their power and making demands that ultimately check the president and overthrow the logic of presidentialism (182).
2. Psychoanalytic analysis of uninterrogated war powers’ impact on liberal democracy and promotion of capitalism
A number of scholars have noted how the considerable war machine that current war powers have created justifies global imperialism in order to enable further capitalist expansion. For instance, Jodi Dean draws from psychoanalysis to examine how presidential war powers have led to these problems: Jodi Dean 2005 Professor of Political Science at Smith Colleges, Zizek against Democracy.
I conclude with a reference to an essay by Stanley Hoffman. In a rather odd sentence near the middle of essay, Hoffman writes, “The U.S. remains a liberal democracy, but …” First, why does he say the U.S. remains a liberal democracy? Given that, as Zizek points out, anxiety is a response to a lack in the Other, it seems to me like Hoffman wants to reassure his readers that the U nited States Presidential War Powers 65
remains a liberal democracy because his previous three paragraphs suggest the opposite . Hoffman details the curbing of civil liberties, the “Republicans’ relentless war against the state’s welfare functions,” the change in U.S. strategic doctrine such that preeminence is official policy, and the ceding of effective political control over all the branches of government to the President through congressional and judicial acceptance of the “ notion that the
President’s war powers override all other concerns.” In the face of these excesses, Hoffman wants to reassure readers that the U.S. is still a liberal democracy, “but ...” But what? “But,” Hoffman continues, those who have hoped for progressive policies at home and enlightened policies abroad may be forgiven if they have become deeply discouraged by a not-so-benign soft imperialism, by a fiscal and social policy that takes good care of the rich but shuns the poor on grounds of a far from ‘compassionate conservatism,’ and by the conformism, both dictated by the administration and often spontaneous among the public, that Tocqueville observed 130 years ago. The U.S. is still a liberal democracy, but nevertheless Hoffman wants to acknowledge—and forgive—the justifiable discouragement of those who hoped that liberal democracy might be more or better than it is. If the U.S. remains a liberal democracy, then liberal democracy is the problem. Insofar as Hoffman’s sentences include within this remaining liberal democracy imperialism, detention without counsel, support for the rich, and shunning of the poor, then those of us who hoped for better and are now discouraged should not be forgiven. In the name of this liberal democracy, we have endorsed a political form fully accepting of deep and global inequality and inimical to projects toward commonality, toward affiliation and justice. Thus, against this liberal democracy we should no longer emphasize compromise, acceptance, inclusivity, and generosity, and adopt instead the divisive attitude of universal Truth.
And Peter Irons notes how these imperial interests serve capitalism.
Peter Irons, political science professor, University of California - San Diego, 2005 , War Powers: How the Imperial Presidency Hijacked the Constitution, New York: Metropolitan Books, 2005, p.
Perhaps the major conclusion of this book is that the presidency as an office and institution has become more important than the presidents themselves. In this respect, the imperatives of the American empire, since the end of World War II, have, in effect, forced presidents to don the uniform of commander in chief and take unilateral military action to protect those imperial interests. It bears repeating that every president since Harry Truman has cited America’s “vital interests” as justification for military intervention , in wars from Korea to Iraq. Those vital interests are rooted in the demands of corporate and financial institutions for access to resources and markets . Even countries with few essential resources, such as Korea in 1950, assumed geopolitical significance because of their location in regions, such as Asia, with vast resources and potential markets.
3. Critical examination of the National Security State
Garry Wills 2010 book, Bomb Power , provides a detailed critique of how executive usurpation of power was enabled by the secrecy of the original Manhatten Project and the later nuclear weapon infrastructure, which accesses critiques of nuclearism, technocracy, and other critical arguments. Garry Wills , Pulitzer Prize-winning American author, journalist, and historian, 2010 , Bomb Power: The Modern Presidency and the National Security State.
This book has a basic thesis, that the Bomb altered our subsequent history down to its deepest constitutional roots. It redefined the presidency , as in all respects American’s “Commander in Presidential War Powers 66
Chief” (a term that took on a new and unconstitutional meaning in this period). It fostered an anxiety of continuing crisis, so that society was pervasively militarized. It redefines the government as a National Security State with an apparatus of secrecy and executive control. It redefines Congress, as an executor of the executive . And it redefined the Supreme Court, as a follower of the follower of the executive. Only one part of the government had the supreme power, the Bomb, and all else must defer to it, for the good of the nation, for the good of the world, for the custody of the future, in a world of perpetual emergency superseding ordinary constitutional restrictions.
4. Critical interrogations of specific technologies/strategies enabled by specific war powers
Each of the specific war powers areas that we spotlight in this paper accesses different bodies of critical literature. For instance, UAV/Drones provide a rich base of critical impacts and advocacy stances concerning the impact of automation and remote killing. Additionally, indefinite detention provides access to arguments by Agamben about the state of exception. Given that each area of the controversy allows the affirmative to make a stance against status quo government war powers, the affirmative should have a number of strong critical options that allow them to take a negative, rather than positive, state action.
IV. Unique educational opportunities
A. Timely, but not too timely
The inspiration for writing this controversy paper was the constant press coverage in the last two years about Obama’s executive war powers and why this expansion of power since the attacks of 9- 11 are dangerous. The timeliness of the topic will allow students to access a deep literature base that contains recently written peer-reviewed academic and legal articles and books. This is a great time to debate about the controversy surrounding presidential war powers. However, as we note in the uniqueness section, there is little chance that timeliness of the topic will produce ever-shifting topic ground. 2013 is also the 40 th anniversary of the passage of the 1973 War Powers Resolution, making this an ideal time to debate the value of constraining presidential war powers. We believe that this anniversary could create several opportunities for programs to host public debates on the subject. Likewise, the anniversary will likely produce increased scholarly discussion of the WPR and presidential war power restraints. Presidential War Powers 67
One likely complaint about our proposal is that this is a recycled debate topic. During the 1993- 1994 NDT season, the resolution was, “Resolved: That the Commander-in-Chief power of the President of the United States should be substantially curtailed." At that time, the concern was that President Clinton was violating the WPR through a number of short military operations, such as Haiti, Iraq, Sudan, Serbia and Bosnia despite congressional disapproval. 72 However, the expansion of war powers during that time pale in comparison to the expansion of war powers in the age of global terrorism. 73 Not only has it been two decades since the college debate community has last debated this controversy for an entire season, the context since the attacks of 9-11 have transformed the controversy so much that it is a very different topic now. Some college seniors may have debated the 2005-2006 high school topic, “Resolved: The United States federal government should substantially decrease its authority either to detain without charge or to search without probable cause” their freshman year. This topic accesses only one of the areas this controversy discusses. Our controversy is much broader in scope than the 2005-2006 topic and that topic was about charging rather than detention. If this overlap is a concern for the topic committee, this area could easily be excluded from topic wordings without undermining the value of debating the broader controversy area. Also, during the 2006-2007 season, some teams debated the Ex parte Quirin decision, which established the precedent for the trial by military commission of any unlawful combatant against the United States. Obviously, no current college debaters debated this topic and, like the high school topic, this only overlaps with a small section of this controversy. B. Cleary defined controversy with clear uniqueness
A recent CEDA Forums discussion (http://www.cedadebate.org/forum/index.php?topic=4758.0) about the crafting of topics argued that important qualities for controversy papers are that they should require a large degree (or quality) of change by the affirmative, have solid uniqueness that does not allow the affirmative to argue that their change is similar to some action being taken in the status quo, and that there be a clearly identifiable “disadvantage to the resolution.” We believe this controversy paper includes all three of those elements. As we have demonstrated so far, there is no chance that Congress will limit the president’s war powers in the status
72 Gene Healy, “Arrogance of Power Reborn: The Imperial Presidency and Foreign Policy in the Clinton Years,” CATO Policy Analysis No. 389, December 13, 2000, http://www.cato.org/pubs/pas/pa-389es.html 73 John Paul Royal, “War Powers and the Age of Terrorism,” Center for the Study of the Presidency & Congress The Fellows Review, 2010-2011. And, as noted by Rudalevig, the authority granted to the president in the wake of 9-11 was greater than the war authority given to any previous president. See The New Imperial Presidency, Ann Arbor, U of Mich Press, 2005, p. 270. Presidential War Powers 68
quo. As a result, the action taken will be significant and controversial. Additionally, there is a clear disadvantage to the topic – constraining presidential war powers undermines U.S. ability to respond to emerging rogue nation and non-state threats. Based on these standards, we believe that this controversy would produce a quality debate topic for the 2013-2014 season. C. Unique policymaking education
Since the 2013 National Debate Tournament final round, there has been considerable debate about the importance of our debate topics in producing real-world change. One of the interesting benefits of this topic is that the presidency as an institution is poorly understood by the public. This lack of education is dangerous as an informed and educated citizen is a vital check on president powers. As Vanessa Beasley, Associate Professor of Communication at Vanderbilt, notes, the presidency is perhaps the most important yet least understood policymaking institution: Vanessa B. Beasley (2010 ), “The Rhetorical Presidency Meets the Unity Executive: Implications for Presidential Rhetoric on Public Policy,” Rhetoric & Public Affairs 13 (1): 15.
“George C. Edwards III…notes that ‘[ the] presidency is perhaps the most important and least understood policymaking institution in the U nited States.’ On one hand, the presidency is important because ‘[i]t is difficult to discuss any area of national policy without assigning a prominent role to the White House.’ On the other hand, the exact nature of this role is complicated by the staggering number of variables and contingencies at work in every different administration and with respect to multiple policy areas, public needs, and attendant regulatory agencies at levels and locations outside of the White House .”
College students debating about the presidential powers is important because critical and balanced education about the presidency is necessary to challenge many of the dangerous policies that this controversy paper discusses. As many legal scholars contend, regardless of the status of legal structures to check the presidency, an important political restraint on the presidency is public opinion. Without educated students, we lack an important check on presidential military power. 74 And, as Andrew Rudalevig also explains, an informed citizenry is crucial to check dangerous executive power and maintain democracy.
Andrew Rudalevig, Associate Professor of Political Science, Dickinson College, 2005 , The New Imperial Presidency, Ann Arbor, U of Mich Press, p. 281
Thus, as Justice Potter Stewart observed in the Pentagon Papers case, “ The only effective restraint upon executive policy and power…may lie in an enlightened citizenry –in an informed and critical public
74 Louis Fisher, “The Law: Scholarly Support for Presidential Wars,” Presidential Studies Quarterly 35, no. 3 (September) 2005. Presidential War Powers 69
opinion which alone can protect the values of a democratic government .” Much rests on the hope that the American public will care, that they will seek out the information they need to hold elected officials in all branches of government responsible for the results of their leadership . Trust in the legitimacy of government – that it is “a government of laws, not men”—is critical. But blind trust in any particular government leads to complacency. Accountability depends as much on the electorate’s health skepticism as it does on healthy discourse between its branches of government . Ronald Reagan’s arms control aphorism—“trust, but verify”—is thus not bad advice for American voters. To verify, though, voters must take charge of their own government; they must inquire, probe, care—and vote.
As a consequence, we believe that debating about presidential war powers can have important consequences to our lives and serve as an important part of the political restraint against a potential imperial presidency.
D. The topic allows outreach to our alumni networks
Policy debate has a number of alumni who have had very successful careers in legal and policy circles whose work relates closely with this controversy. For example, Neal Katyal, former Dartmouth debater and former Acting Solicitor General of the United States (May 2010-June 2011) was lead counsel for the Guantanamo Bay detainees in the Hamden v. Rumsfeld case. At the Justice Department, he also unanimously won a Supreme Court case defending former Attorney General John Ashcroft against allegations of civil liberties abuse in the WoT. Additional, Northwestern alumni, Michael Gottlieb, “recently concluded four years of service with the Obama Administration. From 2009- 2010 he served as Special Assistant to the President and Associate White House Counsel, where he focused on national security law and judicial nominations.” 75 These two alumni are just a small sample of the alumni the topic committee and the larger debate community could reach out to in order to help us better understand the issues and stakes involved in this controversy. E. It is a legal controversy without being solely a courts controversy. As previous noted by Andru Wall in 2011, “Discussions of the President's constitutional authority as commander in chief implicate "some of the most difficult, unresolved, and contested issues in constitutional law." As such, the controversy raises a number of important legal questions and requires students to engage legal literature to research the debate. However, what is nice about this controversy is that it does not have to be a courts topic. The advantage of this is that we can debate important liberal legal issues without having to debate Courts Politics, Legitimacy, or Activism DAs. While there is nothing inherently wrong with these arguments, they have a tendency to dominate legal debate topics.
75 http://web.law.columbia.edu/sites/default/files/microsites/constitutional-governance/files/Michael- Gottlieb.pdf Presidential War Powers 70
Our proposal allows us to access the educational benefits of a legal topic without having to debate the typical set of generic legal strategies. V. Core Negative Ground
A. Leadership/hegemony DA
The core disadvantage to limiting or reducing presidential war powers is that limitations will undermine necessary flexibility to deal with emergencies and ever-changing strategic environments, particular in a post 9-11 world. This argument was raised originally in response to the proposed War Power Resolution, served as the Bush administration’s justification for expanding its powers in the wake of 9-11, and the Obama administration’s current defense of its powers as well. Appropriately, we begin with John Yoo, the architect of the Bush administration’s defense of its WoT policies: John Yoo, law professor at University of California, Berkeley. He was Deputy Assistant Attorney General in the Office of Legal Counsel at the US Department of Justice from 2001 to 2003, “Exercising Wartime Powers,” Harvard International Review28. 1 ( Spring 2006 ): 22-25.
Critics of these conflicts want to upend long practice by appealing to an "original understanding" of the Constitution . But the text and structure of the Constitution, as well as its application over the last two centuries, confirm that the president can begin military hostilities without the approval of Congress. The Constitution does not establish a strict warmaking process because the Framers understood that war would require the speed, decisiveness, and secrecy that only the presidency could bring . "Energy in the executive," Alexander Hamilton argued in the Federalist Papers, "...is essential to the protection of the community against foreign attacks." He continued, "the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." Rather than imposing a fixed, step-by-step method for going to war, the Constitution allows the executive and legislative branches substantial flexibility in shaping the decisionmaking process for engaging in military hostilities . Given the increasing ability of rogue states to procure weapons o f mass destruction ( WMDs) and the rise of international terrorism, maintaining this flexibility is critical to preserving US national security .
Restrictions, particularly statutory limitations, harm presidential flexibility in a crisis:
Adrian Vermeule, Professor of Law, Harvard Law School, 2006 , “THE EMERGENCY CONSTITUTION IN THE POST-SEPTEMBER 11 WORLD ORDER: SELF-DEFEATING PROPOSALS: ACKERMAN ON EMERGENCY POWERS,” Fordham Law Review, Nov., pp. LN.
The reason for the failure of statutory frameworks is plain. When an emergency or war or crisis arises, the executive needs flexibility; because statutory limitations determined in advance can only reduce flexibility, and do so in a way that does not anticipate the particular requirements of a new emergency , no one has any ex post interest in insisting that these limitations be respected. Ackerman acknowledges the grim historical record but provides no valid reason for thinking that his framework statute - which is far more ambitious than the other ones - might fare differently.
Presidential War Powers 71
A strong executive has several advantages over congress in making foreign policy
Michael Benjamin Weiner, 2007 , “A Paper Tiger with Bite: A Defense of the War Powers Resolution,” Vanderbilt Jrnl of Transnatl Law, pp. LN.
This trend can be explained by the practical advantage the Executive branch has over the Legislative branch: It is more efficient for a small, relatively homogenous group to reach a decision than it is for a large, diverse group to reach one 29—a principle required to address the urgent questions that are necessary in foreign affairs.30 One commentator explained the institutional relationship between the branches by noting that, while Congress can announce foreign affairs policy, it lacks the institutional framework to implement that policy .31 Thus, in practice Executives mainly have been the actors and Congresses the reactors. As a result, it should be no surprise that in the nation’s brief history “presidents have in fact deployed U.S. armed forces beyond the U.S. borders hundreds of times without authorization or subsequent ratification by Congress , and in many of these cases they engaged in ‘hostilities’ of varying significance, intensity, and duration.”32
Critics of the WPR contend that restrictions on presidential decision-making have empirically jeopardized important military missions and risked or lost the lives of US troops. As explained by Turner: Robert F. Turner, Professor, University of Virginia School of Law , The War Powers Resolution: An Unnecessary, Unconstitutional Source of "Friendly Fire" in the War Against International Terrorism?, Feb 15, 2005 , http://www.fed-soc.org/publications/detail/the-war- powers-resolution-an-unnecessary-unconstitutional-source-of-friendly-fire-in-the-war-against- international-terrorism
Sadly, the idea that the War Powers Resolution might endanger American lives in the struggle against terrorism is more than just a hypothetical. Indeed, more Americans were murdered by terrorists as a direct result of the War Powers Resolution than were killed in all of our military operations since the end of the Vietnam War. The War Powers Resolution was a primary factor in the decision by Middle Eastern terrorists to blow up the Battalion Landing Team Headquarters at the Beirut International Airport on October 23, 1984 , killing 241 sleeping marines, sailors, and soldiers. When President Reagan sent the Marines to Lebanon as part of an international peacekeeping force alongside British, French, and Italian forces, the decision was not even arguably an infringement upon the power of Congress "to declare War." We were not going to "War," we were sending a contingent of U.S. forces at the request of all of the warring factions in Lebanon to stand between them so they could meet in confidence and try to negotiate a peaceful end to their conflict. Every country in the region originally endorsed the deployment, and no one in Congress spoke against it on the merits. But several noted there were risks involved-risks the President openly acknowledged-and soon the demands started coming in for a report under Section 4(a)(1) of the War Powers Resolution , the provision governing the sending of U.S. Armed Forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." To begin with, to send such a report to Congress might well have undermined the mission in Beirut . There were numerous, highly paranoid factions engaged in the Lebanese quarrels who had consented to the American presence on the theory that it was going to be a peacekeeping mission. Had the President notified Congress that he was taking the nation to "War," militia leaders who had been assured the Americans were coming in peace might well have concluded that they were going to be the object of the American hostilities. Why else would President Reagan or his representatives have lied to them about the nature of the mission? As it turned out, the congressional critics were wrong about "imminent involvement in hostilities," as nearly a year passed before any of the marines came under hostile fire. During that year, the situation in Beirut became more dangerous because the debate in Congress took a highly partisan turn. Democrats like Senator Alan Cranston of California and former Majority Leader Robert Byrd announced that they would not authorize the President to continue the deployment unless he first told Presidential War Powers 72
Congress , as Cranston put it, "exactly how and when we propose to extricate them." [59] One of the points on which there was no apparent discord at the Federal Convention in Philadelphia was that Congress had no role in the actual conduct of military operations. They were given only a "veto" over certain kinds of commitments, leaving to the President such decisions as where to deploy troops, when to attack or redeploy troops, and when to bring them home. As Locke explained, such decisions are heavily dependent upon the behavior of external actors, and it would have been foolish for the President to declare in advance that U.S. forces would be withdrawn on a given date irrespective of those realities. Imagine the reaction of Franklin D. Roosevelt had Congress demanded a withdrawal deadline before it would consider authorizing the President to defend the United States following Pearl Harbor? Once they knew the artificial date on which the United States would withdraw, opponents of a peace settlement in Beirut would be able to orchestrate their strategy for maximum advantage. For much of the press and many Americans, the issue no longer became whether the United States should assist the parties in an important Middle Eastern country to resolve differences and achieve peace, but whether the President was "above the law." Legislation to authorize the President to continue the deployment led to more partisan debate, and the Washington Post noted that the active involvement of Senate Democratic Campaign Chairman Lloyd Bentsen in the debate suggested that "the Democrats are doing push-ups" for the 1984 elections [60]. Marine Corps Commandant P.X. Kelley became so concerned about the partisan debate that he testified before the Senate Foreign Relations Committee that the partisan debate could "encourage hostile forces or forces inimical to the best interest, the life and limb of the Marines." General Kelley warned that "hostile forces would use this as an opportunity to up the ante against our Marines." [61] A few days later, when an unidentified White House staff member repeated General Kelley's concern, the Washington Post reported that Senate Democrats were outraged: "To suggest . . . that congressional insistence that the law be lived up to is somehow giving aid and comfort to the enemy is totally unacceptable," said Sen. Thomas F. Eagleton (D-Mo.). . . . "The Administration has thrown out a red herring," Eagleton said, with "an attempt to intimidate the Congress and frighten the American people with this kind of ludicrous argument." This partisan nature of the debate became even more apparent when the Foreign Relations Committee split completely upon party lines on the deployment, and the minority report was entitled "Minority Views of All Democratic Members of the Committee." In the end, with several references to avoiding future "Vietnams," the Senate voted 54-46 to allow the Marines to remain, with but two Senate Democrats supporting the President. But even then, the issue was not over, as Republicans and Democrats alike emphasized that Congress could reconsider the issue at any time if there were further casualties among the Marines. All of this partisan bickering was not lost on radical states in the Middle East, and the Syrian Foreign Minister announced that the United States was "short of breath. " [62] The message had also not escaped radical Muslim militia members in Beirut, and in October U.S. intelligence intercepted a message between two terrorist units saying: "If we kill 15 Marines, the rest will leave ." Inadvertently, by its partisan debate and repeated pronouncements that further Marine casualties could provoke another debate and a withdrawal of funds for the deployment (such legislation had already been reported out of a key House subcommittee), in their partisan effort to invoke the War Powers Resolution, Congress had essentially placed a bounty on the lives of American forces . The rest is history. Early on the morning of Sunday, October 23, 1983, a Mercedes truck loaded with highly-sophisticated explosives drove into the Marine Corps compound at the Beirut International Airport and exploded. America's terrorist enemies had capitalized on the congressional signals of weakness by murdering 241 sleeping marines, sailors, and soldiers-more Marines than had been lost on any single day since the height of the Vietnam War in 1968 and more American military personnel than had been killed in the Gulf War, Grenada, Haiti, Somalia, the Former Yugoslavia, and all other military operations since Vietnam until the September 11, 2001 attack on the Pentagon .
Lastly, crisis and emergencies necessitate strong presidential authority .
Andrew Rudalevig, Associate Professor of Political Science, Dickinson College, 2005 , The New Imperial Presidency, Ann Arbor, U of Mich Press, p. 275-6.
One dimension of the change surely stems from previous discussion during periods of uncertainty or danger a strong presidency is genuinely seen as a positive good . Recent congressional debater is laced with references to the need for forceful, unified leadership in troubled times. “Success in time of war requires cohesion and unity ,” noted Rep. Tom Lantos (D-CA). “ If you study the sweep of history in the United States and the history of the Presidency, ” Sen. Richard Durbin (D-IL) orated, “ you understand that at times of crisis the President has an opportunity to rally the American people, to summon them to a higher calling and a greater commitment than they might otherwise reach . Time and again, each President faced with a national challenge has tried his best to do just that.”
Thus, the core debate about reducing presidential war powers asks us to consider the advantage of restoring balance of powers and stopping presidential military adventurism versus the disadvantage of Presidential War Powers 73
undermining necessary presidential flexibility and speed to deal with rapidly changing strategic and tactical situations.
B. Terrorism Credibility DA
Many advocates of a strong presidency contend that only a strong executive with full war decision-making powers has the flexibility to deal with threats of proliferation and WMD terrorism. For instance: JOHN PAUL ROYAL , Institute of World Politics, “War Powers and the Age of Terrorism,” Center for the Study of the Presidency & Congress The Fellows Review, 2010-2011 ,
Proliferation o f weapons of mass destruction ( WMD), especially nuclear weapons, into the hands of these terrorists is the most dangerous threat to the U nited States. We know from the 9/11 Commission Report that Al Qaeda has attempted to make and obtain nuclear weapons for at least the past fifteen years. Al Qaeda considers the acquisition of weapons of mass destruction to be a religious obligation while “more than two dozen other terrorist groups are pursing CBRN [chemical, biological, radiological, and nuclear] materials ” (National Commission 2004, 397). Considering these statements, rogue regimes that are openly hostile to the United States and have or seek to develop nuclear weapons capability such as North Korea and Iran, or extremely unstable nuclear countries such as Pakistan, pose a special threat to American national security interests. These nations were not necessarily a direct threat to the Unite d States in the past. Now, however, due to proliferation of nuclear weapons and missile technology, they can inflict damage at considerably higher levels and magnitudes than in the past. In addition, these regimes may pursue proliferation of nuclear weapons and missile technology to other nations and to allied terrorist organizations. The U nited States must pursue condign punishment and appropriate, rapid action against hostile terrorist organizations, rogue nation states, and nuclear weapons proliferation threats in order to protect American interests both at home and abroad. Combating these threats are the “top national security priority for the United States... with the full support of Congress, both major political parties, the media, and the American people” (National Commission 2004, 361 ). Operations may take the form of pre-emptive and sustained action against those who have expressed hostility or declared war on the United States. Only
the executive branch can effectively execute this mission , authorized by the 2001 AUMF. If the national consensus or the nature of the threat changes, Congress possesses the intrinsic power to rescind and limit these powers.
Other scholars argue that congressional war decisions are problematic because congressional compromise in overseeing war decisions would create a sign of weakness and lack of US resolve: Paul W. Kahn, Robert W. Winner Professor of Law and Humanities at Yale Law School , “THE SEVENTH ANNUAL FRITZ B. BURNS LECLTURE THE WAR POWERS RESOLUTION AND KOSOVO: WAR POWERS AND THE MILLENNIUM,” Loyola of Los Angeles Law Review, November , 2000 , pp. LN.
Domestically, Congress often works best through a process of articulation of policy differences and then compromise. The parties set out widely divergent positions as an initial matter. This allows them to establish distinct identities, which in turn allows appeals to different groups of constituents. Difference is then overcome through a process of negotiated compromise. Compromise is often made possible by the fact that it can be multidimensional: in seeking to achieve a Presidential War Powers 74
compromise in one area, bargains can be made in other areas. Compromise occurs not only within Congress, but in the process of negotiation between the Congress and the executive . n58 To fully understand the act of negotiating compromise, moreover, one must consider the role of Washington lobbyists who provide information and coordinate interest group positions. n59 This process of party differentiation followed by compromise produces consensus around the middle, which is generally the safest position in American politics. Americans tend to distinguish between politics and government, and do not like it when government [*29] is driven too explicitly by political ends. n60 They generally expect their politicians to shed the party differentiating ideologies that get them elected and to tend to the task of governance under standards of policy rationality. When this process of compromise appears too risky, when it cuts too deeply into the entrenched political positions of the parties, we have seen appeals to bipartisan, expert commissions, the responsibility of which is to articulate the middle ground and so to relieve the pressure on the politicians as they move toward a common ground. n61 With respect to foreign affairs, however, these techniques of congressional decision-making work poorly. The differentiation that marks the parties as distinct and separate, and is domestically an initial step toward compromise, serves the same differentiating function in foreign policy, but there it tends to freeze party positions. Treaties come before the Senate too late in the process for compromise to be an option, particularly when they are multiparty covenants. n62 Moreover, compromises can look like concessions of U.S. interests to foreign states, rather than a distribution among competing elements of the polity. Nor is there a great deal of pressure to compromise. Rejecting foreign policy initiatives is a way of preserving the [*30] status quo, and preserving the international status quo is rarely a policy for which one is held politically accountable. It is hard to make an issue out of a failure to change the conditions that prevail internationally, when the country is enjoying power, prestige, and wealth. Unable to compromise, the Senate can end up doing nothing, and then treaty ratification fails. Difference leads to stalemate, rather than to negotiation. The problem is greatly exacerbated by the two-thirds requirement for ratification. n63 This structural bias toward inaction accounts in part for the use of executive agreements in place of treaties. n64 These agreements make use of some of the tactical advantages of presidential initiative. Many of the structural problems remain, however, when executive agreements require subsequent congressional approval. If the issue involves the use of force, compromise is particularly difficult. A compromise that produces a less substantial response to a foreign policy crisis can look like a lack of commitment. Disagreement now threatens to appear to offer an "exploitable weakness" to adversaries . Congress cannot simply give the president less of what he wants, when what he wants is a military deployment. There cannot easily be compromises on a range of unrelated issues in order to achieve support for a military deployment . While that may happen, it has the look of disregard for the national interests and of putting politics ahead of the public interest. Nor can Congress easily adopt the technique of the expert commission. n65 The timeframe of a crisis usually will not allow it. More importantly, the military - particularly in the form of the Joint Chiefs of Staff - has already preempted the claim of expertise, as well as the claim to be "apolitical." [*31] Finally, there is little room for the private lobbyist with respect to these decisions. Congress , in short, is not capable of acting because it only knows how to reach compromise across dissensus. When disagreement looks unpatriotic, and compromise appears dangerous, Congress is structurally disabled . This produces the double consequence for American foreign policy of a reluctance to participate in much of the global development of international law - outside of those trade and finance arrangements that are in our immediate self-interest - and a congressional abdication of use of force decisions to the president. The same structural incapacities are behind these seemingly contradictory results.
C. International Peacekeeping/Human Rights Enforcement DA
Another argument advocates of strong presidential war powers advance is that increased congressional oversight of military operations would lead to inaction (real or perceived) towards international humanitarian interventions that are necessary to protect human rights. While the evidence provided here is rather generic, there are a number of specific international situations where intervention is likely unpopular with Congress that could act as scenarios for this type of argument. Paul W. Kahn, Robert W. Winner Professor of Law and Humanities at Yale Law School , “THE SEVENTH ANNUAL FRITZ B. BURNS LECLTURE THE WAR POWERS RESOLUTION AND KOSOVO: WAR POWERS AND THE MILLENNIUM,” Loyola of Los Angeles Law Review, November , 2000 , pp. LN. Presidential War Powers 75
The international law of human rights, which owes its very existence to an institutional situation in which it was not and could not be effective, has suddenly become the normative core of a new post-Cold War global order. The gross violations of human rights in Haiti, West Africa, the states of the former Yugoslavia, Cambodia, Somalia, and Rwanda have prompted international responses . Those responses have often been inadequate, and there have been numerous failures to respond, but that there should be a response is now accepted. That there can be a response comes well within the range of the ordinary political imagination. Increasingly, it is the failure to intervene, not intervention that requires explanation. We saw this most dramatically, for example, in the recent intervention in East Timor . We are, of course, far less certain about the relative ordering of human rights and state sovereignty norms when we deal with China and Russia than when we deal with states of Africa, Southeast Asia, and Latin America. Yet the change is undeniable: the relentless discourse - academic, popular, and official - on the emerging global order continually holds up a vision of international human rights. The Cold War is a receding memory; the only deployments of force that we imagine in the short and medium term are those that would enforce human rights norms. n93 Even those we cast as "enemies" - for example, the regimes of Iraq, Serbia, or perhaps North Korea - [*42] we understand, within a human rights framework: it is not the people of the state, but the regime that we oppose. The people, we believe, suffer from the human rights abuses of their governments. They too are victims. These are not enemy states, but "rogue" regimes. Intervention is seen as a matter of enforcing human rights norms, even if it is the case that innocent people suffer the consequences of the intervention. The pressing question today is not "what is the distribution of foreign affairs power between Congress and the president?" but rather, "what is the institutional mechanism through which the United States will assume its role in the emerging global order ?" Too often, American constitutional lawyers see the issue here as one that rests merely on differences of political belief: is the U.S. role one of forceful, international leadership or is it one of withdrawal from entanglements abroad? Following Holmes's dictum that the Constitution is made for people of widely different views on issues of policy, n94 there is a tendency to believe that interpretation of the war powers provisions must proceed in a way that is independent of such policy considerations . But this distinction between law and policy disables the debate from the beginning. The deep and complex issue here involves the manner in which two different conceptions of the rule of law will intersect in the next generation . V. Changing Interpretations of Congressional War Powers Every interpretation of the constitutional distribution of war powers occurs against a sense of the imaginable uses of force - the kinds of force that can be used and the ends for which it would be used. This was true at the time of the drafting, and it remains true today. A reading that renders the United States unable to defend itself or to pursue its vital interests fails a test of minimal plausibility. n95 Equally, however, an interpretation develops against a perception of the possible abuses of power, which a constitutional structure should be designed to mitigate. The authority to deploy force, like every other constitutional power, is simultaneously the power to pursue [*43] national interests and to commit abuses - indeed, particularly dangerous abuses. Arguments often occur because where one interpreter sees vital national interests, another sees an abuse of power. Whether a deployment of force is perceived as necessary or abusive depends , in substantial part, on the way in which one perceives American interests to align or fail to align with the norms of the international order. Those norms, however, do not remain stable . The world of 1900 - at least the developed world - was still largely structured by the Peace of Westphalia, while today's norms increasingly express a global order of human rights . In between, we experienced the rise of ideological politics, leading first to the Second World War, and then to the Cold War. To think that the vision of United States v. Curtis-Wright Export Corp ., n96 let alone the drafters' vision of 1787, is particularly relevant to the American position in this new world order is to come to the debate with a wholly inadequate set of intellectual tools , unless one is so deeply committed to an idea of American exceptionalism that nothing that actually happens in the world can make any difference [Substantial cut in the article for purposes of space] …. To attempt to reinvigorate Congress's war declaring role would only exacerbate this problem of incongruity . It would be an act of international irresponsibility framed as a matter of constitutional responsibility. Here, the courts have paved the way for a quiet abandonment. Congress's war powers have not been judicially enforceable; it would be a disaster were they to become so. We do not need eighteenth century solutions to twenty-first century problems.
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D. Modeling DAs
U.S. Constitutional structure has been used as a model for several others nations. Our system of checks and balances between Congress and the President is one aspect that has been specifically modeled. Restoring the legitimacy of that system could cause other nations to model that structure, which could create dangerous situations in other countries. Steven Calabresi, George C. Dix Professor of Constitutional Law, Northwestern University, & Kyle Bady, JD Candidate, Northwestern, “Is the Separation of Powers Exportable?” Harvard Journal of Law & Public Policy, Vol. 33, No. 1, Winter 2010 .
We both think American-style presidential separation of powers regimes are exportable and desirable under some carefully controlled circumstances . Like Professor Linz, we would not recommend such a regime for a country polarized into two hostile religious or ethnic camps.3 We also would not recommend a presidential separation of powers regime for third - world countries suffering from a history of dictatorship or rule by caudillos or strongmen like Russia . But we do recommend a presidential separation of powers regime for federal polities that have multiple cross-cutting cleavages, a recent history of democratic rule, a majoritarian electoral system, strong member states within the federation, and a need for a more assertive federal foreign policymaking apparatus. We want in this Essay to make the perhaps startling argument that the European Union is such a polity and that it needs a presidential separation of powers system like the one in the United States if it is to be - come a successful federation rather than merely a confederation.4 In so arguing, we realize of course that there is no chance at all of such a presidential separation of powers system being adopted. Nonetheless, if we can show that it would be a good thing for the people of the European Union to elect a president directly that would surely be relevant to the question of whether it is ever desirable for a presidential separation of powers system to be exported.
E. Politics DA
Yes, we include Politics as the 5 th option because we believe that the topic offers a robust enough negative debate that politics should not have to be the primary negative option for most teams. Yet, as another advantage for this controversy, the links on the politics disad will obviously have a different spin than we’ve seen on the last several topics, requiring some rethinking of the argument. While the negative could make a persuasive argument that President Obama would likely push more energy production, democracy assistance, and visas, losing political capital in the process by getting drawn into a partisan fight, it is unlikely the negative will be able to persuasively argue Obama would push a plan that increased constraints on Commander-in-chief powers. However, for those whom the politics DA links are more or less a deal breaker when voting for a topic, you can sleep easy. Political scholars have noted how Presidents, when forced to defend their war powers, have lost considerable amounts of political capital. These consequences can potentially spillover to the broader domestic political agenda. Presidential War Powers 77
Douglas L. Kriner , assistant professor of political science at Boston University, “After the Rubicon: Congress, Presidents, and the Politics of Waging War”, University of Chicago Press, Dec 1, 20 10 , page 68-69
While congressional support leaves the president’s reserve of political capital intact , congressional criticism saps energy from other initiatives on the home front by forcing the president to expend energy and effort defending his international agenda. Political capital spent shoring up support for a president’s foreign policies is capital that is unavailable for his
future policy initiatives . Moreover, any weakening in the president’s political clout may have immediate ramifications for his reelection prospects, as well as indirect consequences for congressional races .59 Indeed, Democratic efforts to tie congressional Republican incumbents to President George W. Bush and his war policies paid immediate political dividends in the 2006 midterms, particularly in states, districts, and counties that had suffered the highest casualty rates in the Iraq War. 60 In addition to boding ill for the president’s perceived political capital and reputation , such partisan losses in Congress only further imperil his programmatic agenda, both international and domestic. Scholars have long noted that President Lyndon Johnson’s dream of a Great Society also perished in the rice paddies of Vietnam . Lacking the requisite funds in a war-depleted treasury and the political capital needed to sustain his legislative vision, Johnson gradually let his domestic goals slip away as he hunkered down in an effort first to win and then to end the Vietnam War. In the same way, many of President Bush’s highest second-term domestic proprieties , such as Social Security and immigration reform, failed perhaps in large part because the administration had to expend so much energy and effort waging a rear-guard action against congressional critics of the war in Iraq .61 When making their cost-benefit calculations, presidents surely consider these wider political costs of congressional opposition to their military policies. If congressional opposition in the military arena stands to derail other elements of his agenda , all else being equal, the president will be more likely to judge the benefits of military action insufficient to its costs than if Congress stood behind him in the international arena.
And we may see a re-birth of the “losers-lose” type links
Dr. Andrew J. Loomis is a Visiting Fellow at the Center for a New American Security, and Department of Government at Georgetown University, “Leveraging legitimacy in the crafting of U.S. foreign policy”, March 2, 20 07 , pg 36-37, http://citation.allacademic.com//meta/p_mla_apa_research_citation/1/7/9/4/8/pages179487/p179487-36.php
American political analyst Norman Ornstein writes of the domestic context , In a system w here a President has limited formal power, perception matters. The reputation for success —the belief by other political actors that even when he looks down, a president will find a way to pull out a victory—is the most valuable resource a chief executive can have . Conversely, the widespread belief that the Oval Office occupant is on the defensive, on the wane or without the ability to win under adversity can lead to disaster, as individual lawmakers calculate who will be on the winning side and negotiate accordingly. In simple terms , winners win and losers lose more often than not. Failure begets failure . In short, a president experiencing declining amounts of political capital has diminished capacity to advance his goals. As a result, political allies perceive a decreasing benefit in publicly tying themselves to the president, and an increasing benefit in allying with rising centers of authority. A president’s incapacity and his record of success are interlocked and reinforce each other. Incapacity leads to political failure, which reinforces perceptions of Presidential War Powers 78
incapacity. This feedback loop accelerates decay both in leadership capacity and defection by key allies. The central point of this review of the presidential literature is that the sources of presidential influence —and thus their prospects for enjoying success in pursuing preferred foreign policies—go beyond the structural factors imbued by the Constitution. Presidential authority is affected by ideational resources in the form of public perceptions of legitimacy. The public offers and rescinds its support in accordance with normative trends and historical patterns, non-material sources of power that affects the character of U.S. policy, foreign and domestic.
F. Counterplans
There are a number of potential counterplan options under this controversy area. We do not attempt to provide an exhaustive list of counterplan options, just an overview of the basic debate about alternate agents and processes in restraining Executive war authority. Agent Counterplans
Executive Self-Restraint . A popular counterplan will likely be for the president to restrain himself.
In the context of drone strikes, for example, the counterplan would look something like this:
CONOR FRIEDERSDORF , staff writer at The Atlantic, where he focuses on politics and national affairs, “Let's Make Drone Strikes Safe, Legal, and Rare”, March 27 th 20 13 , http://www.theatlantic.com/politics/archive/2013/03/lets-make-drone-strikes-safe-legal-and- rare/274399/
The U.S. military , not the CIA, could administer all drone strikes. Team Obama could make public and allow debate on the legal theory it uses to determine when drone strikes are lawfully permitted , rather than keeping it from most of Congress and the American people. The law could codify rules that implicitly value the lives of innocent foreigners and aim to avoid blowback could govern when and where drone strikes are permitted. Congress and the judiciary could review lethal strikes to ensure the rules are being followed. The administration could given an honest accounting of civilians killed, in place of Team Obama's indefensible practice of counting all dead males of military age as militants. The government could factor blowback into the cost of every drone strike at the highest levels, rather than permitting the CIA to conduct strikes in Pakistan without presidential approval. Before an American citizen is individually targeted as a member of Al Qaeda, as opposed to being shot at while appearing opposite U.S. troops on a traditional battlefield, he or she could be afforded the due process guaranteed by the Fifth Amendment. Put simply, drone warfare would be made safe, rare, and legal . Various critics of Obama's drone campaign have called for reforms like that . Too often, Obama apologists respond by presenting a false choice: Embrace the status quo or let terrorists go. The drone war ought to be suspended immediately; but only until drone strike protocol is no longer imprudent and morally bankrupt. That's the real choice, and if the citizenry would force the issue, the Obama Administration would adopt the required reforms with impressive speed . But even Obama defenders who agree that some of the aforementioned reforms should be implemented refuse to oppose the flawed program in the interim.
We can imagine similar counterplans in the context of detention, wiretapping, and declarations of war. The thesis of the debate would focus around the issue of deference. While the result of the counterplan likely would result in the same limitations on the Executive as the plan, self-constraint may Presidential War Powers 79
not succumb to the political infighting congressional restraint would (as outlined in the politics disad section), and it would also allow the same level of deference given to the Executive in the status quo. However, the possibility of this counterplan raises the question: wouldn’t an Executive Order or Executive Self-Restraint counterplan be unbeatable on this topic? While this option has potential states- like counterplan implications, we believe that there are two solid reasons why this type of counterplan would not ruin a presidential powers resolution. First, given the suggested wordings offered in this paper, the counterplan would be a clear case of object fiat since the agent and its powers are included in the resolution’s wording. While many judges do not consider agent counterplans that use agents who are not listed in the resolution an example of object fiat (e.g., have the states provide production tax credits on the 2012-2013 energy production topic), a generally agreed upon bright line for object fiat is that agents listed in the resolution are illegitimate grounds for fiat as they decimate all affirmative ground. As a result, resolution wording could provide a solid theoretical basis to reject this counterplan. Second, we know that some people will reject this controversy if theory is the only defense against such an abusive counterplan. As a result, we offer some solid substantive reasons why the affirmative can defend itself against this counterplan. One reason is that the counterplan fails is because it keeps the precedent of the presidential war power on the books, which is a substantial solvency deficit. For example, William Marshall contends that self-restraint sends no signal, the precedent always remains, and future presidents would use that power. Only congressional or judicial restraints solve. As he explains, William P. M. Marshall, Kenan Professor of Law, University of North Carolina, 2008 “Eleven Reasons Why Presidentaial Power Inevitably Expands and Why It Matters,” Boston University Law Review, www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf
2. The Precedential Effects of Executive Branch Action Presidential power also inevitably expands because of the way executive branch precedent is used to support later exercises of power. Many of the defenders of broad presidential power cite historical examples, such as President Lincoln’s suspension of habeas corpus, as authority for the position that Presidents have considerable powers in times of war and national emergency. Their position is straight-forward. The use of such powers by previous Presidents stands as authority for a current or future President to engage in similar actions. Such arguments have considerable force, but they also create a one-way ratchet in favor of expanding the power of the presidency . The fact is that every President but Lincoln did not suspend habeas corpus. But it is a President’s action in using power, rather than forsaking its use, that has the precedential significance . In this manner, every extraordinary use of power by one President expands the availability of executive branch power for use by future Presidents.
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As long as the precedent exists, despite restraint from use, it will be perceived as legal later – future emergencies and exceptions will always justify its use without structural limitations. David Cole, Professor, Georgetown University Law Center , “SYMPOSIUM: JUDGING JUDICIAL REVIEW: MARBURY IN THE MODERN ERA: JUDGING THE NEXT EMERGENCY: JUDICIAL REVIEW AND INDIVIDUAL RIGHTS IN TIMES OF CRISIS,” Michigan Law Review, August 2003 , pp. LN
I would hesitate to adopt the Gross-Tushnet position for several reasons. First, it is predicated on a distinction between "emergency" periods and "normal" periods that , as Gross himself has convincingly shown, simply cannot be maintained . As Gross argues, " the belief in our ability to separate emergency from normalcy, counter-terrorism measures from the ordinary set of legal rules and norms," is a dangerous illusion . n115 The United States has been under one state of emergency [*2588] or another since 1933; by the mid-1970s, there were more than 470 "emergency" laws on the books. n116 Israel has been under an emergency regime since it was established as a state more than fifty years ago. n117 And Great Britain has been under a state of emergency for most of the last thirty years, occasioned first by the IRA and later by the attacks of September 11th. n118 Thus, emergency powers have a way of surviving long after the emergency has passed, and emergencies themselves may last decades. Emergency measures adopted in the United States today are especially likely to be long-lasting, given the nature of the war on terrorism, which is more like the war on drugs than a traditional war between nations. n119 When Donald Rumsfeld was asked when the war on terrorism would be over (and therefore when the Guantanamo enemy combatant detainees would be freed), he answered that the war would not be over until there were no longer any "effective global terrorist networks functioning in the world." n120 Vice President Richard Cheney has been even more candid, arguing that we should consider the current period not an emergency at all, but "the new normalcy." n121 If the line between emergency and normal is evanescent, a doctrine of extraconstitutional authority cannot be safely cabined to emergency times . Far from protecting the Constitution in normal times, then, a doctrine expressly authorizing extralegal actions during emergencies would be at least as likely to contaminate the norm by expanding the realm of available government measures across the board as would insistence on a continuing role for courts and the Constitution in checking emergency and nonemergency government action. Second, the Gross-Tushnet proposal to acknowledge extraconstitutional power would be likely to undermine the protection of rights [*2589] during emergencies (and by extension, during normal times that officials call emergencies). Gross claims that his proposal would have a salutary deterrent effect on official abuse of emergency powers, because officials could never be certain that their actions would in fact be ratified after the fact. And he argues that shifting the locus of justification and judgment from the judiciary to a political forum - the people or their elected representatives - would avoid the problem identified by Justice Jackson of formally authorizing emergency measures through judicial approval. There are substantial reasons, however, to doubt both of Gross's claims. Even if acknowledging the legitimacy of extralegal measures would avoid formal judicial approval, it would not avoid the creation of less formal precedents that could be pointed to later to justify further incursions on liberties. The post hoc political rationalization process that Gross envisions, while lacking the attributes of the formal legal process, would nonetheless generate a more informal common law of extralegal emergency authorities. Once the political process has ratified a particular extralegal emergency action, officials will be able to point to that precedent as justification for their own subsequent actions. "Illegal" measures deemed permissible after the fact will no longer be clearly illegal, so long as a subsequent emergency can be analogized to the emergency found to warrant the illegal action previously . n122
And, as Marshall continues, the self-restraint won’t be perceived and public expectations to use the power in times of crisis will lead to their inevitable use. Only legal limits and restraints can solve. William P. M. Marshall, Kenan Professor of Law, University of North Carolina, 2008 “Eleven Reasons Why Presidentaial Power Inevitably Expands and Why It Matters,” Boston University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf
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Accordingly , the question whether a President has exceeded her authority is seldom immediately obvious because the powers of the office are so open- ended . This fluidity in definition , in turn, allows presidential power to readily expand when factors such as national crisis, military action, or other matters of expedience call for its exercise . Additionally, such fluidity allows political expectations to affect public perceptions of the presidential office in a manner that can lead to expanded notions of the office’s power. This perception of expanded powers , in turn, can then lead to the perceived legitimacy of the President actually exercising those powers. Without direct prohibitions to the contrary, expectations easily translate into political reality .
We believe based on these theoretical and substantial reasons that the affirmative has much more than a fighting chance against executive order/executive self-restraint counterplans. These debates may happen, but they will not ruin the topic.
Courts / Congress. The debate over which external constrain on the Executive is a fruitful one. In the article cited below, Londras and Davis discuss the various pros and cons of constraining the Executive vis-à-vis legislation, or the Courts. Fiona De Londras , UCD School of Law, UCD Institute of Criminology, University College, and Fergal F. Davis , Lancaster University School of Law, “Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight Mechanisms”, Oxford Journal of Legal Studies, Vol. 30, No. 1 (20 10 ), pp. 19–47
Abstract—The well-established pattern of Executive expansionism and limited oversight of Executive action in times of terrorism is problematic from the civil libertarian point of view. How to limit
such action has been the subject of much scholarship , a large amount of which focuses on perceptions of institutional competence rather than effectiveness. For the authors, the effective control of security-focused state action is to be judged by the extent to which it consists only of action that is necessary and proportionate and thereby strikes an appropriate balance between security exigencies and individual rights. This article, written and structured in dialectic form, presents competing perspectives on effective oversight mechanisms: on the one hand, an extra-constitutionalism perspective, proposing a limited role for the Judiciary and emphasizing the need for legislative and democratic controls; and on the other, an argument for judicial muscularity.
States. While certainly not applicable to many of the proposed topic areas, the States may be a viable counterplan against certain affirmatives, namely detention, domestic drones, and/or domestic wiretapping. The likely mechanism would be the States using the Nullification powers. Joe Wolverton , II, J.D., “States Join The Fight To Nullify Indefinite Detention Under NDAA”, Feb 14 th 20 13 , http://www.westernjournalism.com/states-join-the-fight-to-nullify-indefinite- detention-under-ndaa/
President Barack Obama signed the latest National Defense Authorization Act (NDAA) into law on January 2, renewing the power to apprehend and detain Americans indefinitely granted in the Presidential War Powers 82
previous year’s version. In order to protect their citizens from being grabbed and imprisoned under the provisions of the NDAA, many state lawmakers are standing up to the federal government , proposing resolutions nullifying this unconstitutional power at the state borders . Nullification is a concept of constitutional law recognizing the right of each state to nullify, or invalidate, any federal measure that exceeds the few and defined powers allowed the federal government as enumerated in the U.S. Constitution. Nullification exists as a right of the states because the sovereign states formed the union, and as creators of the compact, they hold ultimate authority as to the limits of the power of the central government to enact laws that are applicable to the states and the citizens thereof. As President Obama continues accumulating all legislative, executive, and judicial power , the need for nullification is urgent, and liberty-minded citizens are encouraged to see state legislators boldly asserting their right to restrain the federal government through application of that very powerful and very constitutional principle.
Process CP – Congressional Power of the Purse
Jennifer Elsea provides an overview on the debate concerning two distinguishable mechanisms Congress has to limit the Executive: passing statutory language that explicitly limits the Executive; or withholding funding for certain practices. I have chosen to quote a small section of the Research Paper which provides the best summary; however, greater detail is explored in various sections of the paper. Passing legislation with language explicitly limiting Executive authority would probably result in more controversy, but it would certainly be a more powerful limit. Simply withholding funding may be sufficient while creating less initial controversy, but is open to circumvention, and future inter-branch conflict Jennifer K. Elsea et al, Legislative Attorney, “Congressional Authority to Limit Military Operations”, Feb 19 th 20 13 , http://www.fas.org/sgp/crs/natsec/R41989.pdf
As a procedural matter, it is more difficult for Congress to statutorily require the termination of a military conflict than to limit appropriations necessary for the continuation of hostilities. As in the case of ordinary legislation, congressional declarations of peace and rescissions of military authorization have historically taken the form of a bill or joint resolution passed by both houses and presented to the President for signature .111 Like other legislation, such measures are subject to presidential veto, which Congress may override only with a two-thirds majority of each house.112 In contrast, Congress’s ability to deny funds for the continuation of military hostilities is not contingent upon the enactment of a positive law , though such a denial may take the form of a positive enactment.113 Although the President has the power to veto legislative proposals, he cannot compel Congress to pass legislation, including bills to appropriate funds necessary for the continuation of a military conflict. Thus, while a majority of both houses would be necessary to terminate military authorization, and a super-majority of both houses would be required to override a presidential veto, a simple majority of a single house could prevent the appropriation of funds necessary for the continuation of a military conflict .114 It should be noted, however, that legislation probably would be required to prevent the President from exercising statutory authority to transfer certain funds appropriated to other operations for use in support of the military conflict that Congress was Presidential War Powers 83
attempting to limit. Like other positive legislation, such a measure would be subject to presidential veto. While it may be procedurally easier for Congress to refuse appropriations for a military conflict than to rescind military authorization or establish a statutory deadline for the termination of U.S. participation in hostilities, policy considerations may sometimes make the latter option more appealing. For example, some Members of Congress who support the winding down of a military operation might nevertheless be reluctant to reduce the funds for troops on the battlefield. There might also be concerns over potential effects that a denial of appropriations might have on unrelated military operations. Although appropriations legislation can be crafted to effectively terminate hostilities while permitting funding of force protection measures during the orderly redeployment of troops from the battlefield, such legislation, like other positive enactments, would be subject to presidential veto. In 2007, for example, Congress passed a supplemental appropriations bill to fund the war in Iraq that contained conditions for further U.S. troop deployments and a deadline for ending some military operations .115 The President vetoed the bill, arguing in part that these restrictions were unconstitutional because they “purport[ed] to direct the conduct of operations of war in a way that infringes upon the powers vested in the presidency by the Constitution, including as commander in chief of the Armed Forces. ”116 When an attempt to override the President’s veto failed, Congress passed another supplemental bill that provided no timetable for U.S. troop withdrawal from Iraq, which was signed into law by the President .117 In certain circumstances, a President may be more willing to agree to either a statutory limitation on the continuation of an armed conflict, or the rescission of prior statutory authorization for a military operation, than to an appropriations bill that limits the funding of military operations— particularly if these measures do not include a deadline for troop withdrawal. Indeed, during the Vietnam conflict, Congress was able to rescind military authorization at an earlier date than it was able to cut off appropriations . In 1971, Congress passed and President Nixon signed a measure rescinding the 1964 Gulf of Tonkin resolution, which had provided congressional authorization for U.S. military operations against North Vietnam.118 The Mansfield Amendment, enacted later that year, called for the “prompt and orderly” withdrawal of U.S. troops from Indochina at the “earliest possible date.”119 However, these measures did not include a deadline for troop withdrawal. Although U.S. troop presence in South Vietnam diminished considerably pursuant to the Nixon Administration’s “Vietnamization” strategy even prior to these enactments, the United States continued significant air bombing campaigns in the years following the rescission of military authorization. During this same period, President Nixon vetoed or threatened to veto a number of appropriations bills that would have either prohibited funds from being used for certain military operations in Southeast Asia or required a complete withdrawal of U.S. troops from Vietnam. In 1973, two years after rescinding military authorization, Congress was finally able to enact appropriations limitations, signed by the President, that barred combat operations in Indochina.120 These appropriations measures were approved only after the signing of a cease-fire agreement with North Vietnam and the withdrawal of U.S. troops from South Vietnam, and served primarily to end the aerial bombing campaign in Cambodia and prevent U.S. forces from being reintroduced into hostilities. In sum, in situations where Congress seeks to prevent the executive’s continuation of military combat operations, it may be procedurally easier for Congress to deny appropriations than it would be to statutorily compel a withdrawal from hostilities. However, past experience suggests that, at least in certain circumstances, policy considerations may cause the two branches to view the rescission of military authorization as a more appealing alternative— postponing an interbranch conflict on appropriations for a later date, enabling Congress to signal its interest in winding down a conflict, and (at least temporarily) preserving the President’s discretion as to how the conflict is waged.
Case Specific counterplans
There are a number of potential counterplan options for each subject of the controversy. For instance, specific counterplans that modify the AUMF in less restrictive ways than the plan (for example, allow executive drone strikes if a congressional committee concludes the target is a senior leader of Al- Presidential War Powers 84
Qaeda OR poses an imminent threat to troops on the ground) will probably become more popular as agent and process counterplans run their course in the early season. G. Negative Critical Arguments
1. Whitewashing/Sanctioning of Imperialism/Security-State/Empire criticism
A number of critical scholars would view the affirmative on this controversy as merely legally sanctioning imperialism and the State Security apparatus rather than truly reforming or changing it. For example, Michael Hardt and Antonio Negri’s work on emprire and the multitude argues that viewing war as rule-driven ignores the constantly state of exception that contemporary war has created. Eric Mason , Ph.D. candidate in rhetoric and composition at the University of South Florida, “Review of Multitude, War, and Democracy,” Multitudes, October 2004, http://multitudes.samizdat.net/Review-of-Multitude-War-And.html
According to Hardt and Negri, war has become a “form of rule” and a “general matrix for all relations of power and techniques of domination.” This is significant because wars have traditionally initiated “states of exception” during which civic rights are suspended and extraordinary powers are granted to government bodies. Recognizing that the war on terror has supplied the U.S. government with a “permanent and general” state of exception, Hardt and Negri caution us that :< “A war to create and maintain social order can have no end. It must involve the continuous, uninterrupted exercise of power and violence. In other words, one cannot win such a war , or, rather, it has to be won again every day. War has thus become virtually indistinguishable from police activity .” For Hardt and Negri, this constant state of war necessitates a rethinking of the concept of democracy, which is confronting a “leap of scale” when considered a necessary adjunct to globalization. While many of their philosophical and political touchstones have not changed since Empire, Hardt and Negri focus more attention on the global apparatus of governance, including organizations such as the United Nations and the IMF, and on central democratic principles such as “representation.” They also focus more on glimpses of the biopolitical power of the multitude that have appeared in the “carnival and mimicry” of protests, as well as in the “decentralized” intelligence of social networks such as the open-source software movement. What all of these social networks share, and what Hardt and Negri argue is the multitude’s central role in challenging current threats to democracy, is the production of the common . The common is at once both the product of labor and the basis for future production, a surplus reappropriated and managed by the multitude. The possibilities of the common are most visible in the realm of immaterial labor, the most paradigmatic example given being communication. If one focuses, as Hardt and Negri do, on the role of immaterial labor, the common does not operate according to the logic of scarcity, supposedly opening the possibility of mass participation in political power exercised through the biopolitical force of immaterial labor. Immaterial labor is a concept apparently similar to concepts such as “knowledge economy” or “symbolic-analytic” work. What Hardt and Negri add to these previous concepts is the refusal to separate the economic, the political, and the social. They claim that immaterial labor must be understood as a form of “biopolitical labor” that, in addition to producing “knowledge, information, communication, a relationship, or an emotional response,” creates social life itself. The lived reality of labor and the abstract reality of globalization are thus kept in close relation through the multitude’s creation of “tighter articulations between the political and the social.” One problem caused by giving immaterial labor a central role in the project of the multitude is the question of the participation of those who labor on the land and do not trade primarily in immaterial labor-namely, peasants. Hardt and Negri admit as much when they state that the “figure of the peasant may pose the greatest challenge for the project of the multitude.” The disappearance of the peasant from struggles over democracy (like the disappearance of the “figure of the industrial worker, the service industry worker, and all other separate categories”) is welcomed by Hardt and Negri, who see this as part of the “more general trend of the socialization of all figures of labor.” In other words, the multitude depends on the becoming common of multiplicity, while each form of labor is assumed to be able to retain its singularity. This relation of singularity and commonality is at once the most basic aspect of the formation of the multitude, the most difficult condition to achieve and maintain, and, very likely, the most unlikely aspect for readers to accept as possible. Unfortunately, there is Presidential War Powers 85
little in this book that does not follow from the possibility of the formation of the multitude. Groups of protesters dancing in costume and chanting outside political conventions and economic summits might not satisfy some readers hopes for the potential for change in global governance. Hardt and Negri do offer more than this, but the possibility of a politically effective multitude is as fragile as it may be powerful, and like the current war on terrorism, is a project that must also be “won again every day.”
2. Feminist critique of International Relations theory
Feminist international relations theory has a number of important critical insights into notions of power and balance of power: Abigail Temperely March 13, 2013 , “The Feminist Perspectives on Power,” e-International Relations, http://www.e-ir.info/2013/03/13/what-have-feminist-perspectives-contributed-to- our-understanding-of-power-in-the-discipline-of-international-relations/
Traditional theories assert that international relations ought to be understood solely in terms of the masculine concepts state, sovereignty, war and power . Feminine notions, primarily in the domestic sphere, are not considered to be relevant. As such the dominant Realist and Liberal theories in the discipline maintain a sharp dichotomy between interstate, political, public, masculine and intrastate, domestic, private, feminine and assign significance only to the former, thereby disregarding the impact of the latter. It is not possible in the space of this essay to explore in depth the ways in which all of these concepts are exposed as gendered by feminist theorists, and the significance that so doing has for the discipline of international relations. Power emerges as central in traditional theories, to both the study and practice of international relations . In this essay I will explore how feminist theorists have interpreted the concept of power, as it exists in traditional international relations theories, as it manifests in international order and how it might be reformulated to better accommodate gender into the discipline, allowing a deeper and more accurate understanding of the international.
3. Racial Criticisms
One of the interesting aspects of recent criticisms of presidential war authority is the racial nature of some of the more outspoken critics of Obama’s war powers: white conservatives (many who also make birther arguments) who were rather silent during the white Bush administration’s moves to expand WoT presidential powers. A powerful racial critique of the fear of the unchecked black president seems possible. Additionally, there are other interesting intersections between racial protest and strong presidential power that could be investigated by negatives. For example,
Sidney M. Milkis & Daniel J. Tichenor, 2011 , Milkis is the White Burkett Miller Professor of the Department of Politics and Assistant Director for Democracy and Governance Studies at the Miller of Public Affairs at the University of Virginia; Tichenor is Philip H. Knight Professor of Social Science and Senior Faculty Fellow at the Wayne Morse Center for Law and Politics, “Reform’s Mating Dance: Presidents, Social Movements, and Racial Realignments,” Journal of Policy History, Volume 23, Number 4, 2011
We argue that both presidents and social movements have played leading roles in the development of major legal and policy innovations that recast race relations in the U nited States. Presidential War Powers 86
More precisely, the uneasy partnership of these two forces has served as an important catalyst for advancing civil rights reform in key periods of American political development . As much as scholars have devoted scant attention to the relationship between the presidency and social movements, the few works that do probe the subject tend to emphasize the inherent conflict between a centralizing institution tasked with conserving the constitutional order and grass-roots associations dedicated to structural change.1 Even presidents with large reform ambition have had to keep some distance from social movements and causes so as to avoid alienating the support necessary to secure a national consensus for their programs; at the same time, political insurgents have viewed alliances with presidents as a threat to their dedication to values that pose severe challenges to core American principles.2 There is a hint of caricature here, with presidents cast as regularly indifferent, resistant, or openly repressive toward insurgent causes and social movements deemed too hamstrung by radical visions or noninstitutionalized tactics to engage effectively in the art of political compromise. In this article, we take stock of the conflicts and rivalries between these political actors, but we also want to reach beyond them to focus on key moments of American political development when executives and insurgents have needed each other. Presidents sometimes find themselves at the center of national crises where conserving the Constitution requires a redefinition of the social contract. Social activists sometimes seek to secure the rights of the dispossessed and to advance moral causes not merely by opposing the existing order of things but through a principled commitment to reconstituting it. Both presidents and social movements have the potential to be important agents of change during critical junctures of American political history, albeit typically from very different vantage points. To grasp the tense yet essential relationship that sometimes has joined presidents and social movements, we consider it crucial to develop an analytical framework that emphasizes neither executive
power nor insurgency but, rather, the fascinating interplay between them . In particular, our aim is to illuminate the dynamics that sometimes allow presidents and social movements to come together and to achieve critical breakthroughs and enduring reform . Equally important, it is necessary to specify the political, legal, and [End Page 452] administrative legacies of these breakthroughs over time. We seek to lay the groundwork for such analysis by considering three dynamics over time: (1) the agency of presidents with broad authority to exercise power and to pursue ambitious policy change, (2) the leverage of social movements with the capacity to employ both conventional and disruptive political tactics, and (3) the mediating role played by party politics, Congress, and national administration. We explore these institutional factors in two cases that offer useful variation, both on the dynamics of reform breakthroughs and on the administrative and political legacies of these innovations: Abraham Lincoln’s relationship with the Abolitionist movement and Lyndon Johnson’s with the civil rights movement. Racial politics offers an especially fruitful avenue to explore the executive-social movement nexus . As “a lived experience, a hierarchically ranked social category, and a site of institutional action,” race “can help us transcend the false divide between culture and identity, on the one hand, and institutions and structure on the other.”3 Our approach to race and American political development embraces the charge by Desmond King and Rogers Smith to carefully consider “enduring tensions between and within the nation’s racial orders.”4 But whereas King and Smith’s framework emphasizes the conflict over race in American politics, we train a spotlight on the contentious partnership between executive power and insurgency that has led to important breakthroughs in civil rights. By exploring how the collisions and collaborations of social movements and presidents have influenced race relations and civil rights policy in the United States, we build on earlier work by race, gender, and ethnicity scholars who have sought to explicate the institutional dynamics that sustain invidious discrimination in American political development.5 But our findings point to the productive friction between competing agents of reform and their distinctive political and policy legacies .
4. Critical Legal Studies & Critiques of Legal Liberalism
Both conservative and liberal legal critics have a number of indictments of Legal Liberalism, which is grounded in the faith that the law and constitutional structures works. For example, Eric Posner and Adrian Vermeule draw on Carl Schmitt’s critique of liberal legalism and its attempt to structurally contain the executive branch based on a classical rule-of-law theory of the state. Eric A. Posner, Kirkland & Ellis Distinguished Service Professor of Law and Aaron Director Research Scholar at the University of Chicago, and Adrian Vermeule, Presidential War Powers 87
John H. Watson, Jr. Professor of Law at Harvard Law Schoo l, The Executive Unbound: After the Madisonian Republic, Oxford: Oxford University Press, USA, 2011.
Our thesis is that these modifications to liberal legalism fail . Either they do not go far enough to square with the facts, or they go so far as to effectively abandon the position they seek to defend. We live in a regime of executive-centered government, in an age after the separation of powers, and the legally constrained executive is now a historical curiosity. As against liberal constitutional theorists like James Madison, Bruce Ackerman,1 and Richard Epstein,2 and liberal theorists of the rule of law like Albert Venn Dicey 3 and David Dyzenhaus, 4 we argue that in the modern administrative state the executive governs, subject to legal constraints that are shaky in normal times and weak or nonexistent in times of crisis. Whereas Madison is an exemplar of liberal legalism, particularly in the domain of constitutional theory, we draw upon the thought of the Weimar legal theorist Carl Schmitt . We do not agree with all of Schmitt ’s views, by any means. To the extent Schmitt thought that democratic politics do not constrain the executive, or thought that in the administrative state the executive is not only largely unconstrained by law but also unconstrained tout court , we disagree. Indeed, to the extent that Schmitt thought this, he fell into a characteristic error of liberal legalism, which equates lack of legal constraint with unbounded power. But Schmitt’s critical arguments against liberal legalism seem to us basically correct, at least when demystified and rendered into suitably pragmatic and institutional terms . A central theme in Schmitt ’s work , growing out of Weimar’s running economic and security crises in the 1920s and early 1930s, involves the relationship between the classical rule-of-law state, featuring legislative enactment of general rules enforced by courts, and the administrative state , featuring discretionary authority and ad hoc programs, administered by the executive , affecting particular individuals and firms. The nub of Schmitt ’s view is the idea that liberal lawmaking institutions frame general norms that are essentially “oriented to the past,” whereas “the dictates of modern interventionist politics cry out for a legal system conducive to a present- and future-oriented ‘steering’ of complex, ever-changing economic scenarios.”5 Legislatures and courts, then, are continually behind the pace of events in the administrative state; they play an essentially reactive and marginal role , modifying and occasionally blocking executive policy initiatives, but rarely taking the lead. And in crises, the executive governs nearly alone, at least so far as law is concerned. In our view, the major constraints on the executive, especially in crises, do not arise from law or from the separation-of-powers framework defended by liberal legalists, but from politics and public opinion. Law and politics are hard to separate and lie on a continuum—elections, for example, are a complicated mix of legal rules and political norms—but the poles are clear enough for our purposes, and the main constraints on the executive arise from the political end of the continuum. A central fallacy of liberal legalism, we argue, is the equation of a constrained executive with an executive constrained by law . The pressures of the administrative state loosen legal constraints, causing liberal legalists to develop tyrannophobia, or unjustified fear of dictatorship . They overlook the de facto political constraints that have grown up and, to some degree, substituted for legal constraints on the executive.6 As the bonds of law have loosened, the bonds of politics have tightened their grip. The executive, “unbound” from the standpoint of liberal legalism, is in some ways more constrained than ever before.
VI. Potential directions for wording papers
Given that presidential war powers, particularly in the recent era, have been evoked to justify a number of policies, we recommend a list topic. A list would allow wording papers to focus on similar presidential war powers and would allow the community to choose which types of these broad powers they would like to debate. We narrowed this controversy paper to what we believe to a fairly similar set of presidential powers, but this does not mean that later wording papers could not advocate for other groups of presidential powers. Presidential War Powers 88
A. The Mechanism
The mechanism we see throughout the literature is to “increase or enact statutory limitations” on presidential power. For example, statutory limitations restrict executive war powers: William M. Hains , “Challenging the Executive: The Constitutionality of Congressional Regulation of the President's Wartime Detention Policies,” Brigham Young University Law Review, 2011 , pp. LN.
n78. " It is common for defenders of presidential prerogatives to conflate inherent ... executive war powers with preclusive ones , and to assume that any powers granted by Article II must also be immune from statutory limitation ." Barron & Lederman, Framing the Problem, supra note 1, at 741-43. However, inherent presidential power is relevant to a Youngstown Category II analysis (where the President acts in the absence of congressional action), not a Youngstown Category III analysis (where Congress has acted to limit the President's authority). n79. If the President's power is independent, it arises out of the Constitution rather than legislation. But deciding that a presidential power is independent of Congress does not answer the question of whether the authority is exclusive or shared . See Lobel, supra note 75, at 447-49 (distinguishing "exclusive" from "independent" and "inherent" power); id. at 464 ("That the President has independent power stemming from his Commander in Chief power means that he can act independently of congressional authorization, not in disregard of it."). As with "inherent," this term is more appropriate for a Youngstown Category II analysis. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring) ("When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers ... .").
The War Powers Resolution is an example of a statutory limitation.
Adrian Vermeule, Professor of Law, Harvard Law School, 2006 , “THE EMERGENCY CONSTITUTION IN THE POST-SEPTEMBER 11 WORLD ORDER: SELF-DEFEATING PROPOSALS: ACKERMAN ON EMERGENCY POWERS,” Fordham Law Review, Nov., pp. LN.
Political constraints. Ackerman's framework statute is supposed to perform a constitutional function. It reorganizes governmental powers during an emergency, and then ensures that they return to normal after the emergency expires. A statute could, in principle, perform such constitutional functions by aligning the various parties' expectations about the future, which then provide a basis for objecting to usurpations or interference when the emergency occurs. However, history shows that statutory limitations are weak during emergencies. The War Powers Resolution , which limited the circumstances under which the President could use military force and imposed various reporting requirements when the President did use force, has been ignored . As I mentioned above , the National Emergencies Act similarly imposed restrictions and reporting requirements on the President's power to declare emergencies, and the International Emergency Economic Powers Act limited the President's power to impose economic sanctions during emergencies. None of these [*647] statutes has had much of an impact on the behavior of executives. n61 Finally, after 9/11 the President undertook a program of domestic warrantless surveillance, one that in the view of many commentators clearly violates the Foreign Intelligence Surveillance Act. n62 Public opinion, however, is divided about the program's legality. n63 As of this writing, there seems little prospect that Congress will retaliate; the most likely outcome is some sort of legislative ratification of the program, which means that the President will have effectively annulled the Foreign Intelligence Surveillance Act as well as the other framework statutes governing executive action in emergencies.
Presidential War Powers 89
The Supreme Court can enforce statutory limitations against the Command in Chief.
David J. Barron, Professor of Law, Harvard Law School, & Martin S. Lederman, Visiting Professor of Law, Georgetown University Law Center, 2008 , “THE COMMANDER IN CHIEF AT THE LOWEST EBB - FRAMING THE PROBLEM, DOCTRINE, AND ORIGINAL UNDERSTANDING,” Harvard Law Review, January, pp. LN.
Perhaps because the question of how to determine what should happen at the "lowest ebb" has long been of only marginal scholarly interest, it has been obscured by a dense fog of half-developed and largely unexamined intuitions. Chief among these is the notion, supposedly deeply embedded in the constitutional plan, that the Commander in Chief Clause prevents Congress from interfering with the President's operational discretion in wartime by "directing the conduct of campaigns." n5 Or, as it is sometimes more broadly put, the idea is that Congress may not regulate the President's judgments about how best to defeat the enemy - that the Commander in Chief's discretion on such matters is not only constitutionally prescribed but is preclusive of the exercise of Congress's Article I powers. n6 In its most persuasive form , the Bush Administration's assertion of preclusive executive war powers rests on precisely this contention - that Congress cannot "dictate strategic or tactical decisions on the battlefield." n7 It follows from that premise, the Administration argues, that Congress may not enact statutes restricting troop levels in Iraq or defining the mission of the armed forces operating there. Nor may it "place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response ." n8 "These decisions," [*695] claims the Bush Administration, "under our Constitution, are for the President alone to make." n9 There is an understandable temptation to dismiss as aberrant constitutional claims that are so broad and unconditional. Indeed, the Supreme Court's decisions in high-profile war powers cases that have enforced statutory limitations against the Commander in Chief might be thought to justify one's doing so. But in fact, the Court's message in these cases is much more equivocal than is often acknowledged. n10 And just as appeals to judicial precedent cannot resolve the issue, neither can the various distinctions that war powers analysts and scholars have often invoked to cabin such preclusive executive powers, such as those between so-called framework statutes and detailed regulations of the battlefield, or between ex ante measures and statutes enacted in the midst of a specific operation. n11 In our view, these taxonomies are much less capable of identifying the bounds of preclusive executive war powers than is usually acknowledged. The issue, therefore, is less whether a test for defining such inviolate powers of presidential tactical discretion can be enunciated than whether it is justifiable to accept in the first place the common premise that Congress may not enact legislation that "interferes with the command of the forces and the conduct of campaigns." n12
Statutory Limitations are most commonly used in the literature. However, it has been difficult to find a card that offers a precise definition of the term. Another option would be “Statutory Restrictions”, which is similar to statutory limitations, and is defined by Black’s Law Dictionary as, “Limits or controls that have been place on activities by its ruling legislation.”76 Another option might be “congressional limitations.” For instance, David J. Barron, Professor of Law, Harvard Law School, & Martin S. Lederman, Visiting Professor of Law, Georgetown University Law Center, 2008 , “THE COMMANDER IN CHIEF AT THE LOWEST EBB - FRAMING THE PROBLEM, DOCTRINE, AND ORIGINAL UNDERSTANDING,” Harvard Law Review, January, pp. LN.
Over the past half-century, discussions of constitutional war powers have focused on the scope of the President's "inherent" power as Commander in Chief to act in the absence of congressional authorization . In this Article, Professors Barron and Lederman argue that attention should now shift
76 http://thelawdictionary.org/statutory-restriction/ Presidential War Powers 90
to the fundamental question of whether and when the President may exercise Article II war powers in contravention of congressional limitations , when the President's authority as Commander in Chief is at its "lowest ebb." Contrary to the traditional assumption that Congress has ceded the field to the President when it comes to war, the Commander in Chief often operates in a legal environment instinct with legislatively imposed limitations . In the present context, the Bush Administration has been faced with a number of statutes that clearly conflict with its preferred means of prosecuting military conflicts. The Administration's response, based on an assertion of preclusive executive war powers, has been to claim the constitutional authority to disregard many of these congressional commands.
Another option would be to use the 1993-1994 verb, “curtail.” Merriam-Webster Online defines curtail to be, “to make less by or as if by cutting off or away some part < curtail the power of the executive branch> < curtail inflation>”77 Although this dictionary interestingly enough uses presidential powers as its example, after a short conversation with Ryan Galloway about the 1993-1994 NDT topic, we are concerned that using “curtail” would require the affirmative to narrow the scope of the President’s war power authority, which may not be something that Congress can actually do. Instead, it appears as though the literature base suggests that limitations need to be placed on the use of that authority rather than narrowing the scope of that authority. As a result, we suggest the use of statutory limitation/restriction or a similar term. B. The Agent
The controversy literature suggests two obvious agents for the resolution – Congress or the Courts. Some of the case areas are better suited for congressional action while others are best suited for judicial action. We believe that it would be best if potential wording papers could include both agents. The Executive could be a potential agent as well – self-restraining their own policies – but having the Executive act on their own does not get to the core of the controversy: should more oversight and limitations be placed on the presidency? As a result, we suggest that the Executive not be included. While we do not suggest that these agents be explicated included in the resolution, the verb used in the stem could unintentionally limit out judicial action. We believe that judicial interpretations likely create statutory restrictions or limitations (even though they don’t create law, they interpret controlling statutes as now applying, thus creating or increasing a restraint or limitation). C. The Stem
Given that several maintain proposals for change suggest either reforming the WPR or creating a new restriction on presidential war powers, we suggest that the stem allow for both the reform or extension of existing statutory limitations or the creation of new ones. As a result, the stem could be,
77 http://www.merriam-webster.com/dictionary/curtail Presidential War Powers 91
“The United States federal government should increase,” “The United States federal government should enact” or “The United States federal government should increase and/or enact statutory limitations.” However, we do not want to exclude the possibility that the topic could be worded in an agentless passive voice. After all, the 1993-1994 NDT Commander in Chief topic -- Resolved: That the Commander-in-Chief power of the President of the United States should be substantially curtailed -- was the last passively worded NDT topic. We have included a passive voice resolution suggestion below, and we encourage those interested in this discussion to write a wording paper weighing the pros and cons of such a resolution. D. War powers to include and how to phrase There are a number of ways that resolution wording could describe the war powers we outline in this paper. Options include “Article II, Section 2 Constitutional war powers”, “Commander in Chief powers,” or “Presidential/Executive War Powers.” Because so many powers could potentially fall within these categories, we suggest a list of powers that are of interest to the debate community. Given our research, we suggest inclusion of the following war powers:78 • designate and detain enemy combatants; • conduct covert military operations; • use domestic wiretapping; • deploy military force without congressional approval (e.g., UAVs, Offensive Cyber Operations, Support for United Nations or NATO operations, Preventive or Preemptive unilateral action). All of these powers fall within Commander in Chief war powers. The Bush administration argued that Commander in Chief powers justified torture, detainment, wiretapping, and military tactics like UAVs and preventive detention and attacks. This assertion of presidential authority has not been significantly countered. 79 (Clearly the last area, “deploy military force without congressional approval” is too loosely worded and needs to be tightened up or it would create a rather large topic). However, we want to be clear that not all of these powers must be included and these do not have to be the only presidential war powers that can be included. There are many other issues such as authorization to use nuclear weapons, regulation of military personal, operation of military courts and other matters that could be debated and are discussed within the literature. We selected these areas
78 As a warning, we did not research the specific wording we use here to describe these war powers. We merely provide some idea of what they could be, but encourage wording papers to more closely examine the terms used here. 79 Jules Lobel, “Article: Conflicts between the Commander in Chief and Congress: Concurrent Power over the Conduct of War,” Ohio St Law Journal, 2008, pp. Lexis. Presidential War Powers 92
listed above because they appear to be the most recently and frequently debated issues in the literature base. E. Example Resolutions
• USFG List/Limited -- Resolved: That the United States federal government should increase and/or enact statutory [limitations/restrictions] on the [Commander-in-Chief/presidential war] powers of the President of the United States to: designate and detain enemy combatants; conduct covert military operations; use domestic wiretapping; or deploy military forces without congressional approval. • USFG non-list/Broad wording - Resolved: That the United States federal government should increase and/or enact statutory [limitations/restrictions] on the [Commander-in- Chief/presidential war] powers of the President of the United States. • Passive Voice/Limited - Resolved: That the [Commander-in-Chief/presidential war]powers of the President of the United States should be substantially [restricted/limited] in one or more of the following areas: designate and detain enemy combatants; conduct covert military operations; use domestic wiretapping; or deploy military forces without congressional approval. • Passive Voice/Broad - Resolved: That the [Commander-in-Chief/presidential war]powers of the President of the United States should be substantially [restricted/limited].
VII. Recommendation of the authors We strongly recommend the inclusion of this controversy paper onto the 2013-2014 topic ballot. Given the timeliness of the topic and the clear controversy present in discussion of presidential war powers, we think this controversy would produce excellent debates for the college debate community. The literature base is rich, with many peer-reviewed policy and legal articles and books, and allows for well-defensible policy and critical investigations into presidential war powers.