Thoughts on Election Day: Towards Consensus and Institutional Settlement

I've been around this town long enough to know that Lawfare will not be the site that everyone is checking obsessively today. We're not going to have exit polls here, and this may well be the only time you see the word "Ohio" on the site today. But I thought I would take the occasion of Election Day to reflect a bit on the role that the issues we discuss on Lawfare have played---or more to the point, have not played---in the campaign that comes to a head today. Given the prominence of national security legal issues in the last few elections and our divided political culture, one might have predicted that Mitt Romney and Barack Obama would have at least marked the territory of a dispute over these questions. One might have predicted that they would have at least mimed partisan differences over national security legal policy--differences that could then fade on close inspection (like their differences over Iran) or when one or the other actually has to govern. But the campaign has been remarkably free of serious disagreements over the basic authorities to prosecute the conflict with overseas terrorist enemies. To be sure, there remain a few gestures in the direction of disagreement---but they are completely transparent as gestures. Obama promises to close Guantanamo, but nobody imagines that he will actually close Guantanamo. Romney made noises during the primaries about bringing back "enhanced" interrogation---don't hold your breath for that either. The reality, as Ritika and I argued in this piece in Commonweal magazine a few weeks back, is that a remarkable degree of consensus has emerged between the parties as to the basic rules that should govern the American side of the conflict. Consider:

Neither President Obama nor Mitt Romney will close Guantánamo Bay. Obama continues to insist that his policy involves closing the detention facility at the naval base. Yet Guantánamo is going nowhere—and Obama knows it. He has not convinced Congress to let him use another facility to hold detainees, and he has identified a group of Guantánamo detainees whom he means to continue detaining somewhere. Furthermore, as the withdrawal from Afghanistan accelerates and the Bagram Air Base is no longer available to hold enemy belligerents, the need for some detention facility may become more acute. Mitt Romney, meanwhile, has promised to keep Guantánamo up and running. So the debate today over Guantánamo’s future is between a vestigial and by-now-empty promise and open acceptance of the status quo.

Both parties will use a combination of federal courts and military commissions to try suspected terrorists. Republicans love military commissions and Democrats love federal courts. But in practice, both spouses drive both cars. The Obama administration faced congressional obstruction and public outrage over its efforts to try the alleged 9/11 conspirators in federal court in New York City, and Mitt Romney, along with the other Republican presidential candidates, attacked the president for giving terrorists access to the constitutional rights of the domestic criminal-justice system. But while Obama has talked eloquently about his admiration for that system, and clearly prefers it, his administration also put a lot of energy into revamping the law authorizing military commissions—hardly a signal of abandoning the process. And when Congress prevented the New York trial, the Obama administration went ahead with the 9/11 case in a commission, and made a significant investment in the commission process. Conversely, there is no chance at all that a President Romney would jettison the aggressive use of the domestic criminal-justice apparatus for major terrorism cases. The practical and political realities in fact necessitate the use of both military commissions and Article III courts.

Democrats and Republicans will both continue targeting Al Qaeda operatives with drones and special forces. In many respects, Obama’s most consequential change to Bush-era terrorism policy was not his dialing back on detention and interrogation excesses but, ironically, his ramping up of drone strikes. Obama’s willingness to use lethal force against the enemy—including American citizens—has become one of his biggest national-security assets in this election year. He enjoys widespread public support for his use of drone strikes and for his other operational successes—including, most famously, the raid that killed Osama bin Laden. These successes have inoculated him against the normal Republican outflanking of a Democrat on defense and security matters. Romney, for his part, has repeatedly made clear that he too is enthusiastic about aggressively targeting the enemy. The courts have declined to get involved in reviewing targeted killing. And Congress does not appear concerned either—except to the extent that members want more. What’s more, targeted strikes may allow the United States to remain involved in countries after withdrawing from them, and they currently permit the occasional micro-projection of force into countries like Yemen and Somalia. So despite the anxieties of the human-rights community and civil libertarians, drones and other forms of targeted killing are a safe political bet for any president of either party.

Both parties have worked to update the Authorization of the Use of Military Force (AUMF) and institutionalize its authorities. Mitt Romney has openly called for modernizing the decade-old statute that authorizes force against Al Qaeda and others responsible for the 9/11 attacks. And congressional Republicans moved last year to do this. The Obama administration has said it believes the current AUMF is fine, but it worked with Congress to institutionalize the AUMF’s authorization of indefinite detention during the passage of the 2011 National Defense Authorization Act. And it interprets the AUMF in such a way as to permit the use of lethal force against enemy groups in various countries.

Neither party is likely to reinstate the Bush administration’s interrogation policies, and neither will create any mechanism of accountability for those responsible for the Bush-era interrogations.Although Romney joined the rest of the Republican presidential field in promising a return to enhanced-interrogation techniques, he is as unlikely to follow through as Obama is to close Guantánamo Bay. If he tries, he will unquestionably meet serious resistance from the CIA, which has no appetite for being hung out to dry once again. The military has even less desire to get involved in coercive interrogation. Although enhanced interrogation remains the area of the largest rhetorical gap between the parties, in practice, the gap had narrowed even by the time Obama took office. The CIA program was dormant by then, and the Pentagon had already rewritten the Army Field Manual to add additional clarity and flexibility without permitting coercion. Americans still debate waterboarding—but it has been almost a decade since Americans actually waterboarded anyone. And whether Obama or Romney is president, American forces are very unlikely to do it again anytime soon. Additionally, Obama’s tenure has shown that there is no prospect of prosecution of those who brought about the enhanced-interrogation program. Obama has largely stuck to his promise to look forward, not backward—at least with respect to those who stayed within the Justice Department’s legal opinions on interrogation—and Romney certainly will not take a different approach on this point.

Both parties have learned to love warrantless wiretapping. President Bush’s Terrorist Surveillance Program generated a firestorm of criticism, in part for substantive reasons, but in part because its unilateral, secret, executive origins put it in apparent tension with extant federal law. The current version of the program, by contrast, is authorized by Congress, and President Obama supports it. President Romney won’t take a different view. And while debate continues about the civil-liberties implications of the National Security Agency’s surveillance activities, the compromise that has emerged—a statutorily authorized program with various means of judicial, legislative, and executive oversight—has strong bipartisan support. It will continue no matter who controls the White House.

The functional consensus between the parties on such questions has dissenters: human rights groups, for example, and an emergent flank on the libertarian right as well. It enrages commentators like Glenn Greenwald, who see it as an abandonment of basic principles by liberals. And I don't mean to be dismissive of this point of view---though I certainly disagree with it. In fact, I believe that figuring out over the next few years how to bring a broader array of elite opinion into the consensus is an important project---which is one of the reasons I spend as much time as I do probing areas of agreement and disagreement with folks like Gabor Rona and Kevin Jon Heller. One doesn't want, on either the Right or the Left, a large body of opinion that feels left behind by a political consensus from which people are profoundly alienated.

That said, I see the consensus rather differently---actually, 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 while you stand in line to vote and watch election returns, whether those returns thrill or depress you.