Lawfare ? Reflections on Jack and Trevor's Weekend Exchange

I spent a flight out to Minnesota yesterday reflecting on Jack?s and Trevor?s discussion over the weekend of Obama?s first term, his coming second term, the Bush administration, and the now-will-never-be Romney administration. I agree with nearly everything both Trevor and Jack are saying, so my point in this post is not really to continue the dialogue. It is, rather, to distill and make explicit some lessons latent in their exchange.

I want to start with the point with which Jack ended?and with which he, in different words, began:

Even acknowledging this important point, however, the underlying paradox remains.? Whatever his philosophy, whatever his motivations, however seriously he is committed to the rule of law, whatever small changes he has made, President Obama has continued the substance of almost all of the ?counterterrorism policies of the late Bush era. ?. . . [T]hese policies will now be more entrenched and legitimated than they would have been had Romney won the election.

The resolution of Jack?s paradox runs throughout his and Trevor?s discussion. It is simply to state Jack?s point without irony?that is, not that the consensus policies of the late-Bush and Obama administrations will puzzlingly be more entrenched?despite?Obama?s commitment to living under legal restraint. They will be more entrenched?because of the constraints Obama has embraced. This point, that small constraint yields overwhelming dividends to executive power in legitimacy, is not just a matter of hindsight. It was a major theme of my book, Law and the Long War, published near the end of the Bush administration, and it was a major theme as well of Jack?s book, The Terror Presidency. But the Obama administration has been, in its own way, as dramatic an illustration of the point as was, in a different sense, the early Bush administration.

The lesson here for future presidents will, I think, be hard to ignore: Learn to love the chains. If you can possibly avoid a claim of inherent Article II authority, avoid it. If you can possibly avoid claiming the power to defy international law, avoid it. An enormous percentage of the time, a plausibly aggressive interpretation of a treaty, a statute, or a constitutional provision will get you just as far as claiming the document doesn?t bind you at all.

I would be stunned if a future Republican administration did not internalize this lesson. Even executive power enthusiasts who are most skeptical of the binding effects of international law, after all, can see what legal arguments cause problems and which ones grease the wheels. Even they can see that Anwar Al-Aulaqi is no less dead for the President?s having acknowledged that a U.S. citizen abroad has due process rights in targeting decisions. Even they can see that the Obama administration has managed to blow up thousands of America?s enemies while generating only a fraction of the international anger directed at President Bush for detaining fewer than 800 of them.

This is not to say that presidents can always avoid conflicts between the actions they feel they need to take and treaty obligations or congressional strictures. They can?t?which is why even Obama holds inherent Article II arguments in reserve. I very much agree with Trevor that a future Republican administration would be more likely than the Obama administration to take the plunge and actually rely on these arguments. This is especially the case, because?as Jack notes with equanimity and others on both Left and Right note with disgust and anger?some of the difference in the public reception given to strong executive actions taken by the Bush and Obama administrations is a function of double standards. Actions that would infuriate the world if taken by a Republican generate a shrug when Obama takes them?a function, in my view, both of the Nixon-Goes-to-China effect that Jack flags and of a frank bias in the sympathies of the commentariat. How to weight those two factors is an interesting question. But the point here is that a reasonable Republican administration might not expect to get as free a pass for embracing a little restraint as the Obama administration has gotten?even if it plays by the same rules.

But this caveat should not overwhelm the broader point, which is that a Republican administration would be crazy not to see how far it could ride the horse that Obama has tamed. It would be crazy not to rely as heavily as possible on the principles articulated in, say, Harold Koh?s ASIL speech, for as many of its most muscular actions as it can. It would be crazy not to treat the basic strategy of the Obama administration?one built on strong executive action resting on congressional delegation of power?as the consensus which it inherits. This was my point in my Election Day post:

I see the consensus . . . as an encouraging story in these polarized times. It?s a story of the strong clash of ideas yielding something like institutional settlement on highly consequential matters that could profoundly divide us.?I would sketch the story this way: In the aftermath of 9/11, the Bush administration advanced a strong thesis. That thesis generated a strong reaction. And under both the Bush and Obama administrations, we have seen an integration of the thesis and the antithesis into some kind of synthetic set of approaches that commands extremely broad support?support so broad that neither candidate seriously contests the premises of the synthetic approach any longer. That?s far better than we?ve done on fiscal issues, tax policy, or entitlement reform.

Indeed, Ken Anderson and I have been working on a book about the Obama?administration?s speeches on national security legal issues,?one of the principal theses of which is that these speeches represent a strong basis for institutional settlement of contested questions across a wide range of issues we used to fight about?in other words, that they present statements on the law on behalf of the country which will represent the next Republican administration, as well as the next Democratic one. Who would have thought four years ago that we?d be in a place like that? And who would have thought that America?s dysfunctional, broken political system could have moved so deftly to the point that neither candidate is promising to ?restore the rule of law? or accusing the other of a ?pre-9/11 law enforcement mentality??

It?s actually a huge accomplishment?one to be thankful for. . . .

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Source: http://www.lawfareblog.com/2012/11/reflections-on-jack-and-trevors-weekend-exchange/

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