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The Obama War Powers Legacy and the Internal Forces That Entrench Executive Power

Published online by Cambridge University Press:  29 March 2017

Rebecca Ingber
Rebecca Ingber*
Affiliation:
Boston University School of Law
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Extract

As we contemplate the incoming presidential administration, we stare ahead into uncharted space. It may seem as though recent history leaves us unprepared for what lies ahead. What can a discussion of the Obama war powers legacy, and the transition from the Bush to Obama administration, tell us about a transition from Barack Obama to the next president, and beyond?

Yet there are lessons here. Noone can predict precisely how the president-elect and the team that is installed will confront the rule of law or grapple with the bureaucratic norms that I discuss in this paper. But systemic forces exist inside the executive branch that influence presidential decision-making in each modern administration and, barring a total reimagining of the executive branch, will operate on administrations to come. These internal forces include mechanisms and norms that fall within two broad categories: (1) those that favor continuity and hinder presidents from effecting change, and (2) those that incrementally help ratchet up claims to executive power.

Type
Agora: Reflections on President Obama's War Powers Legacy
Information
American Journal of International Law , Volume 110 , Issue 4 , October 2016 , pp. 680 - 700
Copyright
Copyright © American Society of International Law 2016

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References

1 See, e.g., Harold H. Bruff, Bad Advice: Bush's Lawyers in the War on Terror (2009); Jack Goldsmith, the Terror Presidency: Law and Judgment Inside the Bush Administration (2007).

2 Bruff, supra note 1, at 237–56; Goldsmith, supra note 1, at 141–72 (discussing the internal process and faulty legal reasoning underlying the OLC “torture memos”).

3 See David Cole, The Drone Presidency, N.Y. Rev. Books, Aug. 18, 2016, at 19; see also, e.g., Donald Trump Says Terrorists’ Families Should Be Targets, N.Y. Times, Dec. 2, 2015, at http://www.nytimes.com/politics/first-draft/2015/12/02/donald-trump-says-terrorists-families-should-be-targets (quoting then-candidate Trump as arguing that the United States should target—“take out”—the civilian families of fighters of the Islamic State in Iraq and Syria (ISIS)).

4 See, e.g., Remarks of John B. Bellinger III, Rule of Law Symposium, International Bar Association, Vancouver, Canada (Oct. 8, 2010), at http://files.arnoldporter.com/rule%20of%20law%20symposium_john%20bellinger.pdf; Jack Goldsmith, Obama Has Officially Adopted Bush's Iraq Doctrine, TIME, Apr. 6, 2016, at http://time.com/4283865/obama-adopted-bushs-iraq-doctrine.

5 See, e.g., Marty Lederman, The Egan Speech and the Bush Doctrine: Imminence, Necessity, and “First Use” in the Jus ad Bellum, Just Security (Apr. 11, 2016), at https://www.justsecurity.org/30522/egan-speech-bush-doctrine-imminence-necessity-first-use-jus-ad-bellum; Johnsen, Dawn E., When Responsibilities Collide: Humanitarian Intervention, Shared War Powers, and the Rule of Law, 53 Hous. L. Rev. 1065, 1110 (2016)Google Scholar.

6 See, e.g., Bradley, Curtis A., The Bush Administration and International Law: Too Much Lawyering and Too Little Diplomacy, 4 Duke J. Const. L. & Pub. Pol’y 57 (2009)Google Scholar; see also Bruff, supra note 1, at 237–56; Goldsmith, supra note 1, at 141–72.

7 See, e.g., Ingber, Rebecca, International Law Constraints as Executive Power, 57 Harv. Int’l L. J. 49 (2016)Google Scholar (dissecting the executive branch's legal architecture for the conflict with Al Qaeda and other associated groups).

8 See Respondents’ Memorandum Regarding the Government's Detention Authority Relative to Detainees Held at Guantanamo Bay, In re Guantanamo Bay Detainee Litigation, Misc. No. 08-442 (D.D.C. Mar. 13, 2009), at https://www.justice.gov/sites/default/files/opa/legacy/2009/03/13/memo-re-det-auth.pdf [hereinafter March 13 Brief]; see also Brief for Respondents-Appellants, Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010) (No. 09-5265), 2009 WL 6043972.

9 See, e.g., Memorandum from Acting Assistant Attorney General David J. Barron to Attorney General Eric H. Holder, Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi (July 16, 2010), available at https://www.justsecurity.org/wp-content/uploads/2014/06/OLC-Awlaki-Memo.pdf; Cole, supra note 3, at 19 (contending that, under Obama, “[r]emote killing outside of war zones, it seems, has become business as usual”).

10 See, e.g., National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 (creating hurdles for the executive in transferring detainees).

11 Jack Goldsmith, Power and Constraint: The Accountable Presidency After 9/11 (2012).

12 See, e.g., Memo from White House Counsel Alberto Gonzales to Pres. George W. Bush (Jan. 25, 2002) (asserting that the “war against terror is a new kind of war[,]” which “renders obsolete [the Geneva Conventions’] strict limitations on questioning of enemy prisoners and renders quaint” other provisions such as the provision of commissary privileges or athletic uniforms). In 2006, the U.S. Supreme Court rejected the government's theory that the Geneva Conventions did not apply to the conflict as a matter of law and held that, at a minimum, common Article 3 of the Conventions, which includes, inter alia, prohibitions on the mistreatment of detainees, applies to the conflict with Al Qaeda. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006); see also Johnsen, supra note 5, at 1108 (suggesting that comparison between Bush and Obama “depends in part on whether one is looking at the beginning or end of the Bush Administration”).

13 Some have argued that nonlegal constraints may well be as effective or better than legal constraints for certain kinds of high-level decisions. See Pildes, Richard H., Conflicts Between American and European Views of Law: The Dark Side of Legalism, 44 VA. J. Int’l. L. 145 (2003)Google Scholar.

14 This distinction is complicated further by the executive's own regulations or executive orders.

15 Deeks, Ashley S., The Obama Administration, International Law, and Executive Minimalism, 110 AJIL 646 (2016)CrossRefGoogle Scholar (terming this approach “executive minimalism”).

16 Id. For a comparison of the Bush and Obama legal standards for detention, compare Boumediene v. Bush, 583 F.Supp.2d 133, 134 (D.D.C. 2008), with March 13 Brief, supra note 8. The former is an example of a Bush-era position that was itself narrowed through litigation. Judge Richard Leon crafted a standard based on, but narrowed from, that proposed by the government under Bush.

17 See, e.g., Deeks, supra note 15.

18 See Kagan, Elena, Presidential Administration, 114 Harv. L. Rev. 2245 (2001)CrossRefGoogle Scholar.

19 Daphna Renan calls such political interference in legal decision-making “politicized formalism.” Daphna Renan, The Transformation of Executive Branch Legalism (2016) (unpublished manuscript) (on file with author).

20 War Powers Act of 1973, 50 U.S.C. §1544 (2000); see also, e.g., Bruce Ackerman, Legal Acrobatics, Illegal War, N.Y. Times, June 21, 2011, at A27. Of course, the Pentagon's own legal advice in that instance may equally have been influenced by its policy preferences rather than a “best” view of the law.

21 Id.

22 Id.; Morrison, Trevor W., Libya, “Hostilities,” the Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation, 124 Harv. L. Rev. F. 62, 66 (2011)Google Scholar (identifying “[m]ost worryingly, the press reports claim that OLC's opinion was presented to the President as just one perspective on the ‘hostilities’ issue”).

23 Pozen, David E., The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 Harv. L. Rev. 512, 591, 632–33 (2013)Google Scholar (“Notwithstanding the norm of declining to interfere with specific prosecution decisions, … media leaking has historically been an area on which the White House has counseled caution.”).

24 Charlie Savage, Power Wars: Inside Obama's Post-9/11 Presidency 47, 155–56 (2015).

25 Id.; Brief of the United States as Amicus Curiae at 20, Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012) (No. 11-6480), available at https://www.aclu.org/legal-document/padilla-v-rumsfeld-amicus-brief-united-states (arguing nevertheless “that the military detention of a citizen, apprehended in the United States in a congressionally authorized armed conflict, was not clearly established to be unconstitutional at the time”).

26 Scholars have critiqued this feature of executive branch decision-making as, among other things, unaccountable and thus dangerous. See Michael J. Glennon, National Security and Double Government (2014).

27 General decision-making phenomena that impede change, like path dependency and status quo bias, play a role in neutral friction. See Hathaway, Oona A., Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 Iowa L. Rev. 601 (2001)Google Scholar; Samuelson, William & Zeckhauser, Richard, Status Quo Bias in Decision Making, 1 J Risk & uncertainty 7 (1988)CrossRefGoogle Scholar.

28 See Pozen, David E., Self-Help and the Separation of Powers, 124 Yale L.J. 2, 27 (2014)Google Scholar (noting that constitutional conventions are “quasi-legal norms that organize the workings of government,” which entail costs if violated).

29 See Memorandum from Acting Assistant Attorney General David J. Barron to Attorneys of the Office, Best Practices for OLC Legal Advice and Written Opinions (July 16, 2010), available at https://www.justice.gov/sites/default/files/olc/legacy/2010/08/26/olc-legal-advice-opinions.pdf (stressing the independence of OLC legal advice, even when it might undercut the objectives of policymakers) [hereinafter OLC Best Practices].

30 See, e.g., United States Attorney's Manual sec. 3-2.140 (1997), at https://www.justice.gov/usam/usam-3-2000-united-states-attorneys-ausas-special-assistants-and-agac#3-2.140 (admonishing that U.S. Attorneys implement DOJ policy, but stressing “the need for their impartiality in administering justice [which] directly affect[s] the public's perception of federal law enforcement”); U.S. Department of Justice, an Investigation into the Removal of Nine U.S. Attorneys in 2006, at 325 (Sept. 2008), available at https://oig.justice.gov/special/s0809a/final.pdf (criticizing the Bush administration's use of “political partisan considerations” in removing certain U.S. Attorneys).

31 U.S. Department of Justice, supra note 30, at 325–26.

32 See Rebecca Ingber, Interpretation Catalysts and Executive Branch Legal Decisionmaking, 38 Yale J. Int’l L. 359, 421 nn.95–109 (2013).

33 Id. at 421 n.109.

34 Consideration of political versus policy preferences is itself a distinct question, which differs in acceptance according to role.

35 See Ingber, Rebecca, Co-belligerency and War Powers, 42 Yale J. Int’l L. (forthcoming 2017)Google Scholar.

36 Charlie Savage, U.S. Wary of Example Set by Tribunal Case, N.Y. Times, Aug. 28, 2010, at A1; Savage, supra note 24, at 317–19.

37 The “client” here is typically the policymaker requesting legal guidance from agency counsel or from DOJ.

38 Cf. Michael V. Hayden, Director of the Central Intelligence Agency, CIA Director's Address at Duquesne University Commencement (May 4, 2007), at https://www.cia.gov/news-information/speeches-testimony/2007/cia-directors-address-at-duquesne-university-commencement.html.

39 See OLC Best Practices, supra note 29, at 3.

40 See Pildes, Richard H., Law and the President, 125 Harv. L. Rev. 1381, 1399 (2012)Google Scholar (noting that “one will never see an OLC memo” determining that the president lacked the power to pursue a particular course of action because the “White House would neither need nor want a formal OLC opinion that [reached that conclusion]”). Trevor Morrison conducted a study of published OLC opinions (an admittedly skewed sampling) and found that 21% included real limitations on the White House's proposed course of action. Trevor W. Morrison, Constitutional Alarmism, 124 Harv. L. Rev. 1688, 1717 (2011).

41 See, e.g., Morrison, supra note 40, at 1719 (“OLC's ‘facilitative approach’ means that the rate at which its written opinions say yes to the President can be highly misleading. This is because many of OLC's no's never result in written opinions.”).

42 Pildes, supra note 40, at 1399.

43 Walter E. Dellinger et al., Principles to Guide the Office of Legal Counsel (2004), reprinted in Johnsen, Dawn E., Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLAL. Rev. 1559, 1603, 1609 (2007)Google Scholar; Morrison, supra note 40, at 1719.

44 See Morrison, supra note 40, at 1717.

45 Memorandum from Principal Deputy Assistant Attorney General Karl R. Thompson to Secretary of Homeland Security Jeh Johnson and White House Counsel W. Neil Eggleston, The Department of Homeland Security's Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others (Nov. 19, 2014), at https://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19-auth-prioritize-removal.pdf.

46 See Transcript of Oral Argument, Solicitor General Donald B. Verilli, United States v. Texas, 136 S.Ct. 1539 (2016) (No. 15-674), available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/15-674_h3dj.pdf (noting the limits on the legal justification contained within the OLC memo).

47 Muskrat v. United States, 219 U.S. 346 (1911).

48 OLC Best Practices, supra note 29, at 1.

49 Morrison, supra note 40, at 1720.

50 See Deeks, Ashley S., The Observer Effect: National Security Litigation, Executive Police Changes, and Judicial Deference, 82 Fordham L. Rev. 827 (2013)Google Scholar.

51 See Oona A. Hathaway, The Rule of Law in National Security Lawyering (2016) (unpublished manuscript) (on file with author) (contrasting formal OLC opinions with “more informal lawyers group papers”). Charlie Savage has reported that the group sometimes produces short unsigned memoranda. See Savage, supra note 24, at 628.

52 See Savage, supra note 24, at 643–45 (discussing exchange of memos on Libya).

53 Memorandum from Department of State Legal Adviser William H. Taft IV to White House Counsel Alberto R. Gonzales, Comments on Your Paper on the Geneva Convention (Feb. 2, 2002), available at http://www.nytimes.com/packages/html/politics/20040608_DOC.pdf.

54 I am grateful to Ashley Deeks for suggesting this and other insights.

55 There are exceptions. Under the Clinton administration, the legal adviser explicitly declined to justify the Kosovo intervention as a matter of international law. That he felt the need to do so suggests that he thought silence might imply legal embrace. See Matheson, Michael J., Human Rights and Humanitarian Intervention: The Legality of the NATO-Yugoslav-Kosovo War, 94 AM. Soc’y Int’l L. Proc. 301 (2000)Google Scholar.

56 We cannot know what role legal constraints—versus politics and other factors—played in Obama's decision to defer to Congress on the use of force against Syria after its president Bashar al-Assad deployed chemical weapons. That example will not constrain future presidents in the same way as would a written memorandum deeming such action unlawful. But see Ramsey, Michael D., Constitutional War Initiation and the Obama Presidency, 110 AJIL 701, 714–15 (2016)CrossRefGoogle Scholar (arguing that “the nonuse of force in Syria constitutes a significant constraining precedent,” despite noting that the president had “insisted (without much elaboration) that he had independent authority to order air strikes”).

57 See Langevoort, Donald C. & Rasmussen, Robert K., Skewing the Results: The Role of Lawyers in Transmitting Legal Rules, 5 S. Cal. Interdisc. L.J. 375 (1997)Google Scholar (demonstrating the tendency of lawyers to overstate legal risk).

58 Scholars have only recently begun to examine the Lawyers Group process under Obama. See Hathaway, supra note 51; Marett, Jennifer N., The National Security Council Legal Adviser: Crafting Legal Positions on Matters of War and Peace, 8 J. Nat’l Security L. & Pol’y 153 (2015)Google Scholar (drawing on a speech by former National Security Council legal adviser Mary De Rosa). An early discussion of the Obama Lawyers Group can be found here: Robert Chesney, Podcast Episode #8: Brigadier General Richard Gross on the Role of the Legal Advisor to the Chairman of the Joint Chiefs of Staff, Lawfare (Apr. 9, 2012), at http://www.lawfareblog.com/2012/04/lawfare-podcast-episode-8-brigadier-general-richard-gross-on-the-role-of-the-legal-advisor-to-the-chairman-of-the-joint-chiefs-of-staff.

59 Savage, supra note 24, at 693–94.

60 John Bellinger, Charlie Savage and the NSC Lawyers Group, Lawfare (Nov. 8, 2015), at https://www.lawfareblog.com/charlie-savage-and-nsc-lawyers-group; The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States 293 (2004), available at https://9-11commission.gov/report (discussing a “Deputies Committee” meeting's conclusion on the legality of killing Osama bin Laden by Predator drone); H.R. REP. NO. 102-1094, at 73 (1992) (discussing allegations that “the White House and the National Security Council (NSC) formed a high level interagency lawyers group to discourage, frustrate, evade, and thwart Congressional investigations of the Administration's policy toward Iraq”).

61 Goldsmith, supra note 1.

62 See Hathaway, supra note 51.

63 Jack Goldsmith, The Decline of OLC, Lawfare (Oct. 28, 2015), at https://lawfareblog.com/decline-olc; Renan, supra note 19; Ackerman, supra note 20, at A27.

64 E.g., Ackerman, supra note 20, at A27.

65 See supra text accompanying notes 18–26.

66 See, e.g., Savage, supra note 24, at 693 (“[T]he Obama administration's restoration of a slow and careful decision-making process made it harder to dislodge the new status quo Bush had created.”).

67 OLC's practice is so insular that its attorneys do not circulate drafts outside the office. See OLC Best Practices, supra note 29, at 4.

68 See Morrison, Trevor W., Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448 (2010)Google Scholar.

69 E.g., Goldsmith, supra note 1, at 141–72 (discussing Goldsmith's decision to withdraw the original “torture memos” and simultaneously resign from the office); Memorandum from Acting Assistant Attorney General David J. Barron to Attorney General Eric H. Holder, The Withdrawal of OLC CIA Interrogation Opinions (Apr. 15, 2009), available at https://www.justice.gov/sites/default/files/olc/opinions/2009/04/31/withdrawalofficelegacounsel_0.pdf [hereinafter Barron Memorandum].

70 See Biniaz, Susan, Comma but Differentiated Responsibilities: Punctuation and 30 Other Ways Negotiators Have Resolved Issues in the International Climate Change Regime, 6 Mich. J. Envtl. & Admin. L. (forthcoming 2016)Google Scholar.

71 See, e.g., Bressman, Lisa Schultz, Chevron's Mistake, 58 Duke L.J. 549, 571 (2009)Google Scholar; Grundfest, Joseph A. & Pritchard, A. C., Statutes with Multiple Personality Disorders: The Value of Ambiguity in Statutory Design and Interpretation, 54 Stan. L. Rev. 627, 640–41 (2002)CrossRefGoogle Scholar.

72 See Biniaz, supra note 70.

73 Sunstein, Cass R., Incompletely Theorized Agreements in Constitutional Law, 74 Soc. Res. 1 (2007)Google Scholar.

74 Id. at 15.

75 See Ingber, supra note 35.

76 Marks v. United States, 430 U.S. 188 (1977).

77 For a discussion of the difficulties for courts and an alternative to the Marks approach, see Williams, Ryan C., Questioning Marks: Plurality Decisions and Precedential Constraint, 69 Stan. L. Rev. (forthcoming 2016)Google Scholar.

78 The word substantially was added under the Obama administration. March 13 Brief, supra note 8, at 2.

79 Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010) (noting that the government “abandoned” its initial support-based theory and instead argued that Bensayah was “part of” Al Qaeda); Charlie Savage, Obama Team Is Divided on Anti-Terror Tactics, N.Y. Times, Mar. 29, 2010, at A1.

80 Savage, supra note 79 (“So with no consensus, the legal team decided on a tactical approach. For as long as possible they would try to avoid that hard question.”).

81 See Ingber, supra note 7.

82 Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting).

83 Hathaway, supra note 51.

84 Id.

85 See Irving L. Janis, Groupthink: Psychological Studies of Foreign Policy Decisions and Fiascos (1982).

86 See, e.g., Bikhchandani, Sushil, Hirschleifer, David & Welch, Ivo, Learning from the Behavior of Others: Conformity, Fads, and Informational Cascades, 12 J. Econ. Persp. 151 (1998)CrossRefGoogle Scholar.

87 See Janis, supra note 85, at 32.

88 Id. at 35–47.

89 Id. at 37–42.

90 Ackerman, supra note 20, at A27.

91 See, e.g., Dawn Johnsen, Power Wars Symposium: A Study in Contrasting Views of Executive Authority, Just Security (Nov. 25, 2015), at https://www.justsecurity.org/27891/contrasting-views-executive-authority (noting Libya as a “counterexample[]” to the “occasional excessive secrecy” of other processes).

92 Many potential means of registering dissent exist, including through leaks to the press. See Pozen, supra note 23.

93 See Ingber, supra note 32.

94 Id.

95 See, e.g., Exec. Order 13,493, 74 Fed. Reg. 4901 (Jan. 27, 2009).

96 See March 13 Brief, supra note 8.

97 For a discussion of the myriad legal positions that became entrenched through the course of the Guantánamo litigation, see Bradley, Curtis A. & Goldsmith, Jack L., Obama's AUMF Legacy, 110 AJIL 628 (2016)CrossRefGoogle Scholar.

98 Exec. Order 13,491, sec. 3(a), 74 Fed. Reg. 4,893 (Jan. 22, 2009); Barron Memorandum, supra note 69 (overturning Bush-era memoranda noncompliant with the executive order).