The Slippery Slope is Here!

One of the primary criticisms of trying terrorists by military commission is the slippery slope which exists in a system not founded on sound legal principles. Proponents of military commissions have argued we needed this separate system to address unique issues involved with trying suspected enemy terrorists, and by creating a separate system we prevent the individual rights protections that apply in Article III prosecutions from being diluted. This is because military commissions are limited to trying non-U.S. citizen “unprivileged belligerents.”

One of the key flaws of this argument is that the Military Commission Act’s limitation on trying only non-U.S. citizens by military commission was not based on any clear legal principle, and nothing would prevent the jurisdiction of these commissions from expanding in the future. Over the past several weeks, the Senate Armed Services Committee has been toying with an amendment to the National Defense Authorization Act (NDAA) which will push us down this slope.

Among other things, the proposed amendments create a presumption of military detention in certain cases, even when the detainee is a U.S. citizen. And, of course, because the military is not in the business of operating prisons throughout the country, the most likely place for that detention would be Guantanamo. These proposed amendments, coupled with already existing legislation, could result in a suspect—even a U.S. citizen—being detained by the military, sent to Guantanamo and then never able to be tried in an Article III court in the United States.

Welcome the slippery slope.

Interestingly the amendment has enjoyed bi-partisan support in the in the Senate Armed Services Committee. In an op-ed in the Washington Post Senator Levin and Senator McCain recently argued that the proposed amendments are not likely to have much if any impact on current procedures and the legislation gives the President the authority to opt out of the military detention option in a particular case if certain criteria are met. That argument, even if true, does not address the underlying issue: why should military detention be the default option in these cases to begin with?

Is it because the military has proven to be more capable in effectively detaining terrorists or others in the past? The sad history of abuses that occurred at Abu Ghraib and Guantanamo clearly show the fallacy of that proposition. Is it because the military has proven to be more efficient and effective at trying terrorist suspects? Here again, the long and sad history of the military commissions process and the utter inability of the commissions to effectively, fairly and efficiently try suspected terrorists belies any claim that this is a better format for these trials.

The fact is that the military’s job is to fight and win wars—not to act as the primary governmental institution authorized to detain and try terrorist suspects.

It seems likely that efforts by the Senate Armed Services Committee to add these detainee amendments to the NDAA have much more to do with politics and demagoguery than with legitimate national security concerns. And because these proposed amendments put us clearly on the slippery slope, we are all the worse for it.

America Needs Harry Truman

In a new book, Top Secret America, Washington Post reporters Dana Priest and William Arkin tell the story of the rise of the American security state following the terrorist attacks on 9/11. The authors detail the vast security apparatus developed by an alphabet soup of federal agencies. The thesis of the book is twofold. First, the authors explain, with numerous examples, how this security apparatus developed with little if any oversight, coordination or attempt to assess whether the new security state would better protect us from terrorist attacks. A second theme is that much of this security apparatus is being used not to fight terrorism, but to combat ordinary crime. The extremely sophisticated technologies that state and local law enforcement agencies now routinely use, make the thermal imaging device at issue in Kyllo v. United States seem like ancient technology.

In this era of endless budget battles and a competition between the major political parties as to which can show better fiscal restraint and responsibility, it is striking how little either party, particularly in Congress, is willing to question the need for such a vast and expensive security apparatus. The hesitancy of politicians of either stripe to question these programs is obvious: no politician wants to be seen as soft on terror or unwilling to do everything necessary to protect citizens. Hence, there has been virtually no effort in Congress to assert meaningful oversight of these programs, or even to become educated as to what programs actually exist. In one interview, the authors quote a senior Department of Defense official who says that only God knows the extent of the government’s security programs.

While Congress’ unwillingness to provide meaningful oversight is understandable, it is not excusable. There is, in fact, very strong precedent for Congress to perform necessary oversight and question the effectiveness and usefulness of important government programs even in time of war.

At the beginning of World War II Congress created a committee to investigate the nation’s defense program. The committee was headed by then Senator Harry Truman. Over the course of the next several years, Senator Truman’s committee held numerous public hearings, conducted investigations into defense spending programs, and visited countless military bases and factories. The Truman Committee became a powerful watchdog against fraud, waste and abuse. That committee is credited with saving the government billions of dollars, eliminating wasteful programs and saving American lives. All this, while the U.S. was fighting major wars on two fronts on opposite sides of the world. Where is the modern day Truman Commission?

Libya and the War Powers Act

In a recent post, my colleague George Dargo suggested that the Obama administration has no reason not to comply with the terms of the War Powers Act regarding our support of NATO forced in Libya. One of the members of the Obama administration who has argued that the War Powers Act does not apply is Harold Koh, the Legal Advisor to the State Department. He recently addressed an audience of international law and law of war experts at the annual International Law Conference, hosted by the U.S. Naval War College.

Mr. Koh sought to highlight ways in which the Obama administration’s approach to many of these issues fundamentally differed from his predecessor. Among the topics discussed was congressional authorization for U.S. military involvement and support for rebels in Libya who are seeking to topple the Gaddafi regime. The War Powers Act requires the President to seek congressional authorization for U.S. forces engaged in hostilities for more than 60 days. The Obama administration has been under pressure from some members of Congress to seek this authorization for continued military action. The administration’s position is that the War Powers Act does not apply because the nature of our military involvement does not rise to the level of “hostilities” as defined by the War Powers Act.

Mr. Koh repeated that assertion in his address. In addition, he made the following points:

- The military involvement in Libya is not the kind of military action that Congress contemplated when it passed the War Powers Act.
- If Congress wants to prevent the President from supporting the rebel forces in Libya, then Congress must take some affirmative action.
- If Congress decides to withdraw U.S. military support for the rebels, then it should do so with the understanding that it is giving Colonel Gaddafi the green light to resume the slaughter of his own citizens.

The War Powers Act is certainly fraught with problems, not the least of which it that it requires the President to remove U.S. forces from hostilities unless Congress takes some affirmative action authorizing their continued participation. Mr. Koh, however, repeated several times that the Obama administration was not challenging the constitutionality of the War Powers Act; it was simply arguing, primarily for policy reasons, that the Act does not apply to the situation in Libya.

Mr. Koh might have been seeking to convince the audience that, because the administration was not attacking the constitutionality of the War Powers Act, its view of presidential power is more limited than Mr. Obama’s predecessor. I am not sure that is the case.

First, claiming that the President does not have to seek Congressional authorization and that, if Congress wants to prevent the President from committing military support to NATO’s effort in Libya, then Congress must take some affirmative step turns the law on its head. One of the primary purposes of the War Powers Act was to prevent the President from committing military forces and then escalating that commitment over time without congressional approval. Recognizing that the President should have some leeway, Congress gave the President a 60 day window to commit forces into hostilities, and then make the case to Congress at the end of the 60 days why those forces should remain engaged in hostilities. Mr. Koh ignores this very fundamental purpose of the War Powers Act when he claims that the situation is Libya is not the kind of military engagement contemplated by the War Powers Act. The President’s actions seem to be exactly what Congress was concerned about when it passed the Act.

Even more interesting and, perhaps, more troubling is Mr. Koh’s policy assertion that if U.S. forces were to disengage from Libya, then Colonel Gaddafi would be able to resume killing his own citizens. This may well be true, but it is hardly a reason why the President can ignore the legal requirement to seek congressional authorization. In essence, Mr. Koh claims that the President can ignore the requirements of the statute if the President believes that compliance would frustrate important policy objectives. This view of presidential power is not so different than the arguments made by the Bush administration lawyers that the President did not have to comply with the requirements of the Foreign Intelligence Surveillance Act (FISA) because FISA interfered with his Article II powers as commander-in-chief.

While Mr. Koh’s argument may be subtler, it may also be more disingenuous. At least the Bush administration lawyers openly asserted that, in certain matters of national security, the President had the authority to ignore laws passed by Congress. The Obama administration seems to me making that same argument under the guise of statutory interpretation.

Victor Hansen

The War Powers Debate: Is the U.S. Engaged in “Hostilities” in Libya?

How many angels can dance on the head of a pin? When does the use of the armed forces of the United States trigger the War Powers Resolution of 1973? Why have we not intervened in "hostilities" within the meaning of that resolution with our military operations in Libya?

Learned counsel for the State Department and the White House appear to know the answers to such questions with reasons that would make medieval scholastics blush with embarrassment.

There are no caveats in the War Powers Resolution. The words are perfectly clear -- certainly clear enough for a former lecturer in constitutional law -- or even for a former dean of the Yale Law School -- to be able to comprehend and apply in the manner that Congress intended.

George Dargo

This Just In: President’s Use of Military Force in Libya Does Not Require Prior Congressional Approval!

The Office of Legal Counsel (OLC) recently issued an opinion on the President’s decision to direct the use of force in Libya in support of United Nation Security Council (UNSC) Resolution 1973. The OLC concluded, unsurprisingly, that the President had the constitutional authority to direct the use of force without prior congressional approval. The OLC opinion is the latest in a series of opinions which reached the same conclusions in a long and growing list of Presidential authorizations for the use force in Panama, Somalia, Haiti (twice), Bosnia, and Yugoslavia. According to the OLC opinion, in contrast to the long history of the President’s unilateral authorization to use force, Congress’s power to declare war is not well defined, even though it is expressly provided for in Article I of the Constitution.

The OLC’s opinion reasons that both the Constitution and past history show that not every use of force must have congressional authorization. According to the OLC opinion, the President can unilaterally authorize the use of force when important national interests are at stake and the use of force does not rise to the level of a “war” in the constitutional sense. In the case of Libya, according to the memo, the President articulated two national security interests. First, the United States has a longstanding national security and foreign policy interest in the stability of the Middle East, a stability threatened by Qadhafi’s actions. Second, the United States has longstanding commitments to maintaining the credibility of the United Nations Security Council. If the United States were unwilling to support UNSC 1973, the authority and credibility of the Council would be undermined.

Finally, the opinion concluded that the force the President authorized was limited and did not rise to the level of a “war” in the constitutional sense, and therefore there was no need for congressional authorization. The OLC reached this conclusion for three reasons. First, the President did not authorize the use of ground forces. Second, the operations were limited to a “well-defined mission” to protect civilians and prevent a humanitarian disaster. Finally, the bombing missions were not preparatory to a ground invasion.

Now that we are a month into this limited “well –defined mission,” it is useful to see just how closely the OLC’s opinion squares with the facts on the ground. It is interesting to note that Secretary of Defense Robert Gates may not have been fully on board with the OLC’s rationale when he testified before Congress, in advance of Security Counsel Resolution 1973, that establishing a no-fly zone over Libya was tantamount to an act of war. From the very first days of the military mission, there has also been a great deal of confusion as to exactly what the supposed “well-defined mission” is. Is it to remove Qadhafi from power? Is it to prevent a humanitarian disaster? Is it to support the loosely aligned band of rebels in their efforts to gain territory and eventually move into Tripoli? Is it to maintain the status quo? If the recent squabbling among the NATO allies over the mission is any indication, no one really seems to know the answer to these most basic questions.

In spite of this confusion over what the mission really is, we should not be surprised by OLC’s conclusions. It would really have been news if the OLC concluded that the President needed congressional authorization to use force. Nonetheless, in spite of the long history of Presidents claiming that they have the constitutional authority to authorize the use of force without any input from Congress, Congress can do more than sit passively on the sidelines watching as events unfold. It is noteworthy for example, that Speaker Boehner recently sent a letter to the President asking him to clarify specifically what the mission in Libya is and how long the military action is likely to last. A letter may be nothing more than a political gesture, but it may also provide the spark for Congress to engage in more focused and robust involvement. If Congress really hopes to be an equal partner in such important national security decisions like committing our forces to military action, it cannot simply take the legal opinions from the OLC as the final word on this issue. Time will tell if Congress is up to the task.