Obama and The (Quasi?)Imperial Presidency

The always worth reading Charlie Savage had a really important piece in the NyTimes four days ago which in the midst of all the financial meltdown news slipped through the cracks.

Savage writes:

The Obama administration has told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.

Obama got some pushback from ertswhile progressive allies, arguing that this decision was indeed very Bush-like.

To me, what this signals is further proof that A)Obama was telegraphing exactly what he would do as president during the campaign and B)a lot of folks weren’t listening closely enough.

What Obama made clear was that he rejected George Bush’s frame of the Global War on Terror (emphasis on Global) but he did accept a War on Terrorism frame.  Or perhaps better War on Terrorists.  A war specifically on al-Qaeda in Afghanistan/Pakistan and its allies The Taliban(s).

The actions Obama has taken to date are logical corollaries of that basic premise.

Re: Ending The Global War on Terror

1)Shutting down Gitmo, supporting the SCOTUS ruling that Gitmo prisoners have habeus corpus rights.

2)Ending the War in Iraq.
–Bush’s Fight them in a place of our choosing rather, except that the “them” wasn’t the same “them” as who actually planned and executed the 9/11 attacks.

3)Ending Torture and Extraordinary Rendition. (Emphasis on Extra-ordinary–potential keeping of “non-extraordinary rendition”).
–This practice also was largely a factor of the global framework of Bush’s presidency.

Re: Undertaking a War against al-Qaeda/Taliban

1)Sending 17,000 more troops to Afghanistan

2)Expanding missile strikes into Pakistan

3)This legal decision (for the time being at the least) concerning detainees at Bagram in Afghanistan.

Savage notes:

The Supreme Court rejected the Bush administration’s legal view for prisoners held at Guantánamo in landmark rulings in 2004 and 2006. But those rulings were based on the idea that the prison was on United States soil for constitutional purposes, based on the unique legal circumstances and history of the naval base.

So on one level this decision by the Obama Justice Dept. is seen as supporting the Bush-Cheney Regime which argued that prisoners were not American citizens and therefore not open to US courts.  But Obama has done so only insofar as it accords with his Af-Pak view of the war as opposed to Bush’s Global War.  [I’m not necessarily defending this argument, only saying there is a difference and I can imagine a legitimate argument being made for the Obama decision]. On the other hand, Bush & Crew also argued that they were not uniformed soldiers in an army, hence outside the bounds of the Geneva Conventions–a position Obama seems quite opposed to.  Arguing that prisoners at a prison in Afghanistan should not have access to the US court system is not the same as saying they do not rightfully have Geneva Convention rights (e.g. no torture).

i.e. The Third Article of the Geneva Convention states:

d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Such a regularly constituted court affording guarantees recognized by civilized peoples need not be the US criminal court system.  I think the US criminal court system passes that particular bar, but I can certainly (and easily) imagine a military court (or perhaps the International Court) that could just as well qualify under those criteria.

For all the howls that Obama is now a Bush-lite, the real issue is that any president Bush, Obama, Republican or Democrat to come, is making these decisions, when in reality they are the proper province of the Legislative Branch.  This point was the central and I think substantially correct one of Benjamin Wittes’ recent book Law and the Long War.  While I’m not sure I agree with all of Wittes’ later recommendations about how exactly he would like to see the legal frame enacted by Congress, he is 100% correct that the legal questions surrounding this war are really the job of Congress.  What we have had to date concerning is that the President makes some decisions and then at certain points is rebuffed by the Supreme Court (e.g. Boumediene case).  But the Supreme Court can only say what The Executive has done is wrong and not really promote what should be done instead.  Which is exactly where The Legislative Branch comes in.

Otherwise the legal issues will, as we have seen with Bush and are seeing with Obama, be subordinated to The Executive’s Foreign Policy Paradigm.  Rather The Congress should bind any and all Executives to a legal framework with which The Executive will have to work relative to its own particular foreign policy outlooks.

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11 thoughts on “Obama and The (Quasi?)Imperial Presidency

  1. There’s a reason that foreign policy only makes tiny changes from president to president (intl crisis notwithstanding) ….it’s a very sobering responsibilities. Plus, as I have written about myself, once you start getting those top secret briefings, suddenly you have a whole new perspective on world affairs. It’s also why i predict we will never see a ‘trugh commission’.

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  2. Chris:
    I think you’re onto something here with respect to Congress’ abdication of responsibility in the foreign policy arena. Granted, they’ve had the help of some SCOTUS decisions in doing so, but the fact is that Congress has done a really good job of abdicating responsibility to the Executive for quite some time.

    But I’m wondering how much of this is actually specific to foreign policy. The fact is that in order to create the modern regulatory state, Congress had (and has) to delegate a ton of its legislative powers to the Executive, delegations that likely would have been found unconstitutional prior to the New Deal era court.
    As an aside, and just thinking aloud: My thoughts on New Deal-era jurisprudence aside (the failure of liberals to acknowledge the long-term impact of FDR’s court-packing scheme annoys me to no end) I’m wondering if maybe the only way to avoid Congressional abdication of power to the Executive without scrapping the regulatory state is in a Parliamentary system where the Executive is technically part of the legislature. Perhaps a topic for the future, and it’s not something I’ve thought about for more than a minute or two.

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  3. There is a hot war ongoing in Afghanistan, and we are a party to the hostilities. Anyone who ever thought prisoners we took there were going to be able to challenge their detention while still in country was deluded or ignorant. The question is whether we will accord them Geneva status. If Obama does not, THEN he is little better than Bush. If he merely holds them there for the duration of hostilities, there is no basis for criticism under int’l law.

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  4. You certainly do go way out of your way to split hairs on Obama’s behalf. What’s happening here? Is cognitive dissonance setting in?

    So on one level this decision by the Obama Justice Dept. is seen as supporting the Bush-Cheney Regime which argued that prisoners were not American citizens and therefore not open to US courts. But Obama has done so only insofar as it accords with his Af-Pak view of the war as opposed to Bush’s Global War.

    The following seems so obvious to you today now that Obama is president and you want to defend him. But I’ve been making this point for many months, while being called vile names for not joining in the self-righteous chorus against Bush/Guantánamo.

    For all the howls that Obama is now a Bush-lite, the real issue is that any president Bush, Obama, Republican or Democrat to come, is making these decisions, when in reality they are the proper province of the Legislative Branch.

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  5. Michael,

    I generally agree with your point. The question I’m left with though is that The Geneva Conventions (and I’m all for keeping them btw) still assume a classic nation-state to nation-state level of warfare. When does the war in Afghanistan end? These post-conflict stabilizations/peace efforts are very murky as to when they end exactly? What if we keep certain forces as “military advisors” or logistics support in Afghanistan for another decade? Are we still in the hot war phase? Are we still the occupier then? Would it be okay to keep those guys for another 10 years without a trial?

    This is why I think The Congress needs to create a legal framework for the kinds of wars we are fighting in this era. Bush actually I think had a point about how these wars were different but drew the absolute wrong lesson from it and as a result really f’ed everything up in this regard. But I’m not convinced we can go back fully to the WWII era framework.

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  6. Here’s why you’re splitting hairs:

    The stakes are high. Victory for the Taliban in Afghanistan would give a tremendous shot in the arm to jihadism globally — threatening Pakistan with jihadist takeover and possibly intensifying terrorism in India, which has the world’s third-largest Muslim population. Russia, China and Indonesia, which have all been targets of jihadist Islam, could also be at risk.Henry Kissinger

    It might suprise you that Kissinger is somehow part of Obama’s foreign policy team.

    U.S. Vice President Joe Biden speaks of “hitting the reset button” with Russia, but Moscow fears a scattershot approach from the new team in Washington. Behind the scenes, former Secretary of State Henry Kissinger has a role to play for the Obama administration.The Obama administration virtually subcontracted Kissinger to deal with the Russians, long before the president’s inauguration took place.Stratfor (subscription required)

    So here’s Kissinger today (in the article I linked to above) getting us ready for the new Russia policy.

    The precondition for such a policy is cooperation with Russia and Pakistan. With respect to Russia, it requires a clear definition of priorities, especially a choice between partnership or adversarial conduct insofar as it depends on us.

    Détente worked so well last time around didn’t it? Let’s try it again while nobody remembers. How’s that for change you can believe in?

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  7. Roque,

    A)I thought detente was decently successful. Better than cowboy adventurism in Cuba and Vietnam. I’m not anti-Russian and at some point we have to make NATO not be an anti-Russian alliance (they fear encirclement now that NATO is in Afghanistan) which it more or less seems to be at this point. So I’m good with making good with Russia.

    B)You know I don’t really go for this whole “shot in the arm for global jihadism” foo fah. You know I see most of these groups more as nationalist/sub-nationalist insurgencies, with what happens to one having little to no effect on another.

    Which means, at some point the Afghanistan Taliban are going to be dealt into the government there. Or else they destroy the government which is always a possibility. And/or some Pashtun-istan comes to be that crosses both the Afghan and Pakistan borders. If The Afgh. Taliban make a deal and get amnesty (which undoubtedly would have to be part of any deal), does that mean they won? Will global jihadism be on the rise if so? Is Hamas going to get jacked up because of what happens to The Taliban? I think they have their own agenda absent any other events & players in the world.

    C)I wasn’t defending Obama on his Bagram decision. I wasn’t attacking him really either. But I’m definitely not feeling any cognitive dissonance given that the point was that if you had been listening (as I had been) then you would in fact not be surprised by what’s happened. I’m glad you seem to be on board with the Congressional Legal Framework. I’ve been pushing Wittes’ book since it first came out. I also think closing Gitmo is the right thing to do. And I agreed with the SCOTUS decision in Boumediene.

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  8. Here’s more “change you can believe in:”

    “Attorney General Eric Holder said Wednesday the Guantanamo detention center is a well-run, professional facility that will be difficult to close—but he’s still going to do it. Holder visited the U.S. naval base at Guantanamo Bay, Cuba, on Monday and spoke to reporters about his trip during a news conference Wednesday. Holder said his visit to the site was instructive. He met with military officials and toured the facilities, including the court setting where military commissions were to be held until Obama suspended them.

    He said he did not witness any rough treatment of detainees, and in fact found the military staff and leadership performing admirably.

    “I did not witness any mistreatment of prisoners. I think, to the contrary, what I saw was a very conscious attempt by these guards to conduct themselves in an appropriate way,” he said.

    So Guantánamo isn’t the war-crimes haven we thought it was. But let’s close it anyway, just to make sure. Where’s the logic in this?

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  9. Chris Dierkes,
    A. If you think détente was “decently successful,” then you should try and convince the millions of East Europeans whose continued oppression by Communist regimes was guaranteed thereby. In the ’70s–the era of détente–Communism was gaining world wide. It was the best time to be a Communist–the world was going their way thanks to Nixon/Kissinger and détente. Throwing around scare words like “cowboy adventurism” will get you nowhere in any kind of reasonable debate. Sorry about that. The greatest depradations in Vietnam happened under Nixon/Kissinger’s power. The Vietnam war and détente were part of the same “package” as they like to say.

    It’s not as simple as being anti Russian or “making good” with them. I wonder if anyone can be characterized by such reductionist phrases? It’s a matter of balancing our committments to allies, neutralizing threats, and expanding our national security. Everyone is in favor a deal with Russia that will give us transportation routes to Afghanistan and isolate Iran (for example). The problem is, what is Kissinger planning to trade away? Are we going to have to back away from committments we already have, like recognition for Kosovo? And so forth. We have allies in Eastern Europe who have reason to fear Russian encirclement as much as Russia fears NATO encirclement.

    You see jihadist movements as nationalist and sub nationalist insurgencies. I really cannot imagine what evidence or reasoning you could support this with. For example, I just finished reading a new book by Bassam Tibi. He was born and raised in Damascus and then went to Germany to get his PhD under the great Max Horkheimer. He has been a German scholar of Islam and the Arab world for forty years. The main point of the book is that Islamism is a global movement, or an insurgency against the West. According to him, Islamic belief entails fighting for Islamic world supremacy–jihad. It’s a struggle (jihad), Tibbi says, to “map the world” with Islamic law. Tibbi and all the other authors I’ve read about the Arab/Islamic world agree that loyalties go to religion, region, sect, tribe and so forth before going to the nation-state. The nation-state has only a very short history in the Arab/Islamic world and western-style nationalism burnt out with Nasserite praetorian dictatorships.

    So, with all due respect, unless you can come up with some compelling reason not to, I’m going to continue to trust the scholars I’ve read so far on this point rather than you. For one, they have some credentials, and years of research to their credit; for another they tend to agree with one another on this point. Sorry about that.

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