Restricting Presidential War Powers
Total Page:16
File Type:pdf, Size:1020Kb
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