Presidential power scholar Stephen Knott discusses in this latest edition of Liberty Law Talk his book Rush to Judgment: George W. Bush, the War on Terror, and His Critics, recently released in paperback form by University Press of Kansas. Knott has a point in this book. He argues convincingly that the vituperative critics of George W. Bush’s use of executive power, in many instances, were willfully ignorant of the historical use of these powers. Past presidents, ranging from George Washington, Thomas Jefferson, James Madison, Abraham Lincoln and certain presidents in the twentieth century, defended and exercised powers similar to those…
“America must move off a permanent war footing,” said Barack Obama in his fifth mockery of the State Of The Union address. He coupled these words with a commitment to “keep strengthening our defenses” at home – meaning enhancing the very “homeland security” measures that are the essence of that war footing. Then, confronting popular outrage against the most serious of those permanent war measures, namely the NSA’s collection of ordinary Americans’ electronic communications, Obama cunningly pledged only to enhance confidence in them, having made clear elsewhere that he would not alter their substance.
A New Year’s wake-up call from the International Business Times: “In their annual End of Year poll, researchers for WIN and Gallup International surveyed more than 66,000 people across 65 nations and found that 24 percent of all respondents answered that the United States “is the greatest threat to peace in the world today.” Pakistan and China fell significantly behind the United States on the poll, with 8 and 6 percent, respectively. Afghanistan, Iran, Israel and North Korea all tied for fourth place with 4 percent.”
This confirms what international travelers sense: whereas not so long ago foreigners saw Americans as the embodiment of peace and freedom, a plurality now see us as a source of trouble for themselves. For more people than not, being on America’s side now means being on the side of trouble. Why? And what is that to us?
The Supreme Court will ultimately have to resolve the competing rulings, Friday’s from the Southern District of New York and the previous week’s from the D.C. District Court, on the NSA metadata program. Both are well reasoned; this issue is not constitutionally obvious, and bombast from either side will not be helpful in resolving it. But neither will emotional appeals to 9/11 such as the one with which Judge William Pauley opened his ruling upholding the program:
The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modern life, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.
There are multiple reasons this retrospective appeal to 9/11 is unpersuasive. Regardless, the issue policymakers are going to have to confront sooner or later is whether the potential for terrorism is actually sufficiently large and unique to justify the potential cost to liberty imposed by this policy.
There are surely good arguments for the NSA metadata collection program. The bare assertion—evident on the Sunday shows last weekend—that it would have prevented 9/11 is not one of them.
It is, for starters, highly speculative. The pre-9/11 problem was not a lack of data but a lack of coordination. One need not engage in retrospective blame to observe that clues generated by the old technology—larger needles in a smaller haystack—seem, in searing hindsight, not to have been lacking.
The deeper problem is retrospective risk analysis. Its concomitant is the attempt to use 9/11 as a rhetorical trump. It is intended to stop conversation rather than start it, as in Rep. Peter King’s understandable display of pathos on Meet the Press: “I live in New York. I lost about 150 friends, neighbors and constituents on September 11. If the NSA had had this metadata in 2001, that attack probably wouldn’t have happened.”
The Congressman’s personal loss deserves both sympathy and honor. But the distance of a dozen years provides adequate space for deliberate rather than impassioned consideration, and the simple assertion—which is hindsight working in hindsight—that surveillance would have prevented the attacks cannot conclude the issue in foresight for the simple reason that, looking forward, preventing attacks can never be all that matters.
President Obama said in his Veterans Day remarks at Arlington National Cemetery Monday that when responsibility for security in Afghanistan is transferred next year, America’s “longest war” will come to a close. But America’s longest war, the ongoing war on terror, was authorized by a Congressional resolution—the Authorization for Use of Military Force—whose alteration or repeal he endorsed six months ago but that will almost certainly endure. The promised “engagement” with Congress about its repeal has not occurred because a variety of actions and policies in the war on terrorism, from drone attacks to detention, depend on the AUMF remaining in force. The longest war persists for reasons of the longest motive: power.
Last week’s awful tragedy at Los Angeles International Airport, which by all accounts involved a lone and troubled individual, was notable for the commendable calmness surrounding it. There were no calls for military detention, no cries of “act of war,” no demands that the President intervene to prevent the accused, Paul Ciancia, from “lawyering up” such as were heard in the aftermath of the Boston Marathon bombing. But the act itself is difficult to distinguish from what, in other cases, is described as terrorism that supposedly exceeds the competence or jurisdiction of civilian authorities. It was politically motivated: Ciancia’s writings were laced with anti-government sentiment. It was an explicit attack on government agents in the performance of their duties. It terrorized civilians.
American conservatives have long argued that the judiciary should defer to the elected branches of government on matters of policymaking, correctly observing that the practice of judicial deference dates to the founding of the nation. Even those founders who favored a somewhat “elastic” interpretation of the Constitution condemned the notion of “legislating from the bench.” As Alexander Hamilton noted in Federalist #78, the judiciary possessed neither the purse nor the sword, and would retain its legitimacy due to the fact that judges possessed little discretion and were required to follow precedent, all the while observing a strict separation from the elected branches of government.
It is important to keep this in mind in light of the recent National Security Agency surveillance “scandal” which has led to calls for increased judicial oversight of the nation’s intelligence community.
Yesterday 205 members of the House, defying the partisan polarization that has recently characterized that body, voted for an amendment limiting the NSA’s blanket collection of telephone records. Last week a federal judge appointed to the bench by George W. Bush lit into a government lawyer claiming limitless executive authority to assassinate U.S. citizens in drone attacks. The tide may be turning. But most heads in the war on terror ultimately spring from one hydra, and that hydra lives: a post-9/11 authorization of force through which Congress ceded an enormous and amorphous swath of power to the President to wage war without end on an enemy without definition.
I’ve just returned from a vacation in Paris, which I report partly to induce envy (I went), partly to seek sympathy (I returned) and primarily—having favorably compared our revolution to theirs in this space—to give credit where due: The French have managed to maintain security amid an environment of openness in a way that has eluded us. Part of the reason is that the French internal security services keep a close watch on radical Islamic activity. Another is that they have not had to confront a calamity on the scale of 9/11. But one wonders, as I have speculated here before, whether some of the difference has to do with attitudes toward risk. The French may have accepted 99 percent security. We demand the full 100. And that extra percentage point—which is, not incidentally, delusive—is a costly one indeed.