Liveblogging Session 6: The Presidency in the Post-9/11 World

Prof. David Barron kicks off the last panel discussion of the conference, focusing on the Presidency in the Post-9/11 World.  He begins by noting that it is not surprising that a serious national security crisis will change the presidency.  Second, he thinks there is a great deal of agency with respect to the presidency.  Lastly, ideas of presidential power have guided various presidents in different ways. Barron then briefly introduces his panel, which includes Prof. Jack Goldsmith,  Prof. Rick Pildes, Ben Wittes, and Prof. Deborah Pearlstein. Jack begins the discussion by saying it’s obvious that the presidency is more powerful today than it ever has been before.  He notes that presidential authority always swells in power during wartime.  He thinks it’s hard to conceive the end of president’s expanded authorities. Intelligence and technological powers in the hands of the President are hard to comprehend; it’s an enormously powerful beast. He says it’s remarkable how settled various issues are, for example, the detention power of the President.  Many judges from across the political spectrum agree that the president has the power to detain, likely indefinitely.  Jack notes that there is a consensus that military courts may try some terrorists.  There is a consensus that habeas extends to Guantanamo, but perhaps not beyond that.  Even if it did extend to Bagram, Jack does not believe much would change on the ground.  He further notes that surveillance and targeted killing authorities are generally accepted. He does concede that there are disagreements on the margins.  Closing GTMO and trying detainees in Article III courts are perhaps less on the margin. What explains this consensus? Jack states that the courts and Congress, to perhaps an unprecedented degree, enacted legislation to regulate the president’s power.  He adds that there is a great degree of oversight within the Executive Branch.  In addition, the media and civil society have been watchdogs of the Executive.  Another reason for consensus is that Obama has more or less continued the previous administration’s policies (at least the late Bush administration). Indeed, Jack notes that Obama has most inherited this consensus. Jack begins to close by asking “does this mean the Presidency is just right?” He believes it’s hard to answer this question in a particular way–i.e.,  we should discuss it policy by policy.  But in truth,  we rely on intuitions of the nature of the threat and on moral and legal interpretations.  In the absence of consensus on normative issues and the threat environment, it’s hard to know if the presidency has too much power.  He concludes that we’re in a place with the presidency that we can be fairly satisfied about how much power it has and that it’s flexible enough to give the president more or less power as the threats change. Barron asks Jack if this a stable consensus? What might be the factors that unsettle it? Second, the occasion for Brennan’s speech were differences between the views of the Obama administration and Republicans in Congress; is this an area that would unsettle the consensus? Jack says that the nature of the threat could change the consensus. Brennan says the powers the president has now are adequate to meet the current threat environment; if that is no longer the case, the president will seek more power. Jack states he does not know if the Republican views could unsettle the consensus.  He notes that in terms of the scope of the war and detention authorities, maybe there could be more power given to the president, but he thinks this is likely rooted in political considerations, rather than those based on national security concerns.  If there are changes, Jack believes that they will be accompanied by strings. Next, Rick Pildes would like to discuss how much law actually constraints presidential power in domestic and international affairs.  How much should it constrain the presidency? Pildes says that the book “Executive Unbound” provides a good framework.  He notes that the authors (Vermuele and Posner) argue that the law does little to constrain presidential power. Indeed, the President can act in the face of the law.  They say the imperial presidency is a fact and we should be mature enough to accept it. Pildes notes that the authors believe that “unbound Executive” is something that we should perhaps not fear given the demands of the modern world. In addition,they note, politics continue to restrain the president.  In short, a president’s power is limited to his credibility.  His ability to bend the law will be judged by how credible other political actors find him to be.  If they signal that they respect limits on power, then that will give them more credibility. Pildes goes on to state that the authors argue that the president should act if the president believes he should act. Pildes thinks this approach is characteristic of views of public officials not being bound by moral  duty or the law, but hard-headed realism.  If other actors will accept the action,  then it can be taken. Pildes says we could look at case studies or listen to testimony of individuals saying the president followed the law. But we cannot separate law from the “real constraints” of politics or public responses.  If presidents must signal their credibility by saying they will be bound, the single most powerful signal is the president’s willingness to comply with law.  So, for example, if Obama had raised the debt ceiling on his own, Pildes thinks the turmoil would have been equal to what would have resulted if the United State defaulted.  This would have resulted not from the substantive policy, but from a concern that the United States was turning into a banana republic. Pildes points to recent comments from Bush and Rumsfeld saying that assertions of unilateral presidential authority undermined the president’s authority. Pildes notes that it may be for both moral and legal reasons,  compliance with law is an important value.  But the question is, should it be the only value? Barron wants to put together Jack and Pildes’s points.  Barron says that if one would adopt Pildes’s view, what would happen to the desire to monitor the president’s activities?  If we need a public that must take a more mature view of the presidency, will it still engage in monitoring? Pildes says he does not know if it would change much.  He says the perception of the importance of law and compliance is very strong in the United States.  He notes that the debates post-9/11 were about limiting the president’s power; he’s not sure the intensity would diminish if there were a broader acceptance of the cost-benefit view of the president’s compliance with the law.  Indeed, Pildes thinks that the view might already be out there–the law is used to justify the action after the fact. Next, Ben notes that there is always a risk that when he and Jack are on a panel  together, there is a danger that the second one to speak will have nothing to say.  But that is not so today.  Ben notes he disagrees with Jack  over the durability of the current consensus over the limits of presidential power. Ben believes that the key question is whether the degree of consensus is about to be radically upset by what’s being proposed in Congress. Ben thinks this point is so correct and finds it ironic that now, he finds himself on the same side of the debate of those with whom he has disagreed over the years. Ben begins by noting that the Left “lost a lot” when Obama took office. The combination of the mellowing of the Bush administration and the “betrayal” or “growing into the role you’ve found” of the Obama administration resulted in a common ground that is characterized in the way Jack described.  But Ben thinks there are three big themes.  First, this is presidency of enormous power.  The substantive powers–discretionary power–has not changed much.  Second,  these are powers that are justified relatively modestly, certainly compared by the early Bush administration.  Third, there was a real question of whether this is war or law enforcement.  The emergent answer has been that domestically, the war on terror looks like law enforcement; abroad, it looks like war.  There are exceptions, Ben notes, but it’s a rough-cut.  He says he’ll go out on a limb and suggest that in a Perry or Romney administration, this understanding will remain.  That is, the broad parameters will remain–they’ve become a matter of consensus across parties. Ben then discusses his disagreement with Jack. He sees the Republicans as rebuking the idea that all the tool should be on the table; he says he never thought that it would be unlawful to subject a detainee to a trial or require someone captured domestically to be held in military custody. Lastly, Ben believes there are two explanations for this development (and perhaps a combination of the two). The first is simple partisanship. One must ask  the question: why are certain set of ideas on the table now that were never on the table before? It certainly raises the specter of partisanship in the  national security arena, Ben says.  Second, Ben notes the importance of symbolic politics.  He explains that no one doubted Bush’s willingness to fight the enemy.  When Bush wanted to try Reid in New York, it did not symbolically say anything.  Nobody doubted Bush’s commitment to the war.  But when Obama does the same thing, it does raise questions.  Ben says that is because Obama does have a preference for a law enforcement context.  He adds that there is a very large percentage of Americans who are committed to a war paradigm; if Obama says he wants to bring KSM  to New York,  these people  will hear “we’re not really at war.” These people, according to Ben, doubt Obama’s commitment to fighting the conflict. Barron says he agrees with much of what Ben says.  He notes one interesting phenomenon of the debate–the question of “what is war?”  Barron notes that even that debate got allocated to the debate.  To Barron, one of the important developments is that war is a legal concept. Ben agrees.  The President will get criticized if he ramps up the drone campaign and kills bin Laden and be called weak.  He thinks the symbolic issue is quite deep though.  He notes that when Obama announced the interrogation EO, he talked much more about what he was rejecting rather than  about how tough the Army Field Manual is.  He did not talk about what the Field Manual lets you do that would make it effective.  Similarly,  Ben notes that the administration talked about the MCA 2009 very little.  Once it got the law,  it talked about the cases it wasn’t going to bring in it.  Ben suggests that the result was that it did not convey a sense that Obama was committed to the conflict.  However, there are exceptions.  Ben says that David Kris gave a speech at Brookings that was consistent with the Administration’s view, but it sounded different. Next, Deborah Pearlstein begins her remarks. She says she’d like to spin out a “slightly more positive story.” She would like to give a tentative answer to the one-way ratchet issue.  Her thesis comes from the great works of Schlesinger and Koh among others–executive power expands during wartime (and in general) and does not contract.  The mechanism that drives the ratchet is the result of two phenomena.  One is a political imperative–to respond and to be seen as responding.  Second, the president has great incentives to seize power and the other branches have every incentive to let him have it. Pearlstein asks if this has been the story of the last ten  years. She wants to focus on the separation of powers issues.  She cites two examples,  which hopefully tell a more complicated story.  Example one is torture.  She says for many,  this was the most expansive claim of presidential power.  Doesn’t this example alone support the one-way ratchet?  Political imperatives and cultural  support pushed the administration to take this view.  Indeed, courts have resisted claims of those who said they had been tortured. First, no, this does not support the one-way ratchet.  She says the result that we would “reset the clock” was not predetermined for a variety of reasons.  Without a change in administration, Congress passed the DTA in 2005, which included the McCain Amendment, which required interrogators to follow the Army Field Manual.  She notes that the following year, the Court decided Hamdan.  And with Obama’s taking office,  he sought to strengthen the anti-torture regime in place.  This was not a fast moving ratchet in the other direction.  It was only 2002 when information about deaths of detainees came to light. Pearlstein asks, from a separation of powers point of view, how do you explain this?  How do you explain why the courts and Congress stepped in?  What political incentives could have led Obama to ratchet back? Pearlstein then discusses the detention example. Here, detention continues.  But it’s difficult to say that Congress or the courts ratified the initial choice.  There has been an iterative process over the years.  There have been efforts to restrict power to which the President has capitulated.  How do you account for this?  Why is it now that Congress is seeking an expanded view of the conflict?  Why is Obama not doing it on his own? To answer her questions, Pearlstein says that the political incentive mechanism can  push the ratchet in either direction.  She believes that this must be understood better. Second, the descriptive claim that presidential power expands in wartime was a claim she remembers hearing on September 12.  She notes that she found this troubling, because we weren’t even sure what was going on.  But we were already saying the President would seek greater power.  Pearlstein says when the next attack comes, we should so easily embrace this narrative. Finally, we must get past the idea that terrorism is unique. Instead, we need to think of it as chronic risk management. She thinks the security state is not all we’re talking about anymore.  This view recognizes that this is the world in which we live; how do we want it to look from a perspective from law? The first question is from Rita Hauser.  She would like to take issue with Ben’s view that the public is not satisfied with Obama’s stance on the conflict.  She thinks he’s seen positively and does not share Ben’s concern.  She notes that legislation in Congress will go no where, because reasonable heads will prevail. She states that this will be a non-issue during the campaign, provided another attack  does not occur. Ben says he did not meant to suggest that the public is dissatisfied with Obama’s performance on national security issues. He say she has no argument on this point.  But he does think she underestimate the ferment in Congress and its potential consequence.  Ben  notes that there is a very committed group of members of both the House and Senate Armed Services Committees that have written some very dramatic legislation in both version of the Defense Authorization bill.  You could imagine a conference committee taking the least objectionable portions of both and have something constructive.  But Ben believes you could really imagine that there is another possibility–something emerges that really changes the consensus that the panel has been describing.  Ben does not know how likely this is, but he’s less confident sanguine than Jack is that the consensus is a stable one. Next, a question form a local Somerville resident.  He wonders if the European  systems have been  as structurally repressive as ours has been.  Second, is there any suggestion that Obama might try to ratchet down and be satisfied as a one-term President? Barron responds that Obama has made clear that he does not intend to be one-term president.  In addition, characterizing policies appropriately is important.  He believes that Brennan was trying to do this last night. Next, a question from Chibli Malat.  He says he’s taken by the “panic attitude” that he sees. He states that he feels compelled to talk about the lawfulness of targeted killings.  He notes this has been an area of ratcheting up.  Under what law can this use of force be countenanced?  There is a consensus that these methods have been successful.  But on the other side, some see this as an arbitrary taking of life. Not just because of the collateral damage, but the process–if you choose to put someone on a list and they do not know about it, he finds this troubling. He believes there is an element of extra-judicial killing here. Pildes responds.  He says post 9/11 there might be pragmatic reasons to use measures that would not be used in ordinary times. However,  smart governments understand that this will cause anxiety and the prudent thing to do is give back to those concerns,  even if the measures are justified and compelling.  This includes making things as public as possible the principles and justifications.   Pildes believes governments must signal  that they’re acting in appropriate ways by revealing some of this information.  The must show that they’re acting in a restrained, rational, justifiable way if these policies will be sustainable over any lengthy period of time. Barron says that a lot of talk over transparency depend on the details of what transparency would require.  He does not believe it is accurate to say that the government has been secretive over some issues,  including the scope of the AUMF.  Barron concedes that it is true that there is no justification made to a third-party neutral  party;  but this has never been the case with a use of force. Pearlstein wants to note that she has concerns over many of these issues and believes there is a great deal more that the Administration could do from a process point of view that would not reveal operational details.  She says her point is to try to look at the whole picture and broad structural  claims, rather than the wisdom of particular policies.  The scope of presidential power over multiple generations is a more complicated question. The last question if from Peter Marguiles. He discusses how certain issues in the American system of national security are considered political questions; should we move to a model in which the courts should play a greater rule here? Pildes responds and notes that we think judicial review is often seen as a check; but it also clarifies and legitimates presidential action. He thinks it’s stunning that we still have little legal certainty on many of these issues. He believes it’s because of this traditional view off the courts being restrained.  Pildes states that it must be an indictment of the system that so much uncertainty remains.  He thinks that in a “fantasy world” a more expansive judicial role would be beneficial, not just because you’re a civil libertarian, but the role courts play in bringing legitimacy. Barron thanks the panelists and brings the final discussion to an end.  New York Times reporter Charlie Savage’s keynote address will begin at 5:45 PM.