The Green Lantern Theory of the Presidency

I thought this would be appropriate to discuss today - no matter who wins the presidency, they will be saddled with all the promises they made during the campaign. The bulk of these promises are beyond the ability of presidents to do. So we're going to be disappointed no matter what, but is that because we expect too much of the occupant of the office - and offices hemmed in by checks and balances?

The Green Lantern Theory was developed during the Bush Administration to come to terms with this tendency to think that sheer will on the part of the president to solve all the problems in the middle east, and extended to the Obama Administration to think that similar will was all that was needed to solve social and economic problems.

- Here's the heart of the theory:

Up at Cato Unbound you can find Reuel Marc Gerecht's latest argument for bombing Iran. I think I've covered the policy arguments on this score extensively elsewhere, so let me just note something in particular about Gerecht's essay. Like a lot of conservative writing on foreign affairs it puts a huge amount of weight on things like will, resolve, and perceptions of strength and weakness. It's a view of things that reminds me of nothing so much as the Green Lantern comics, which I enjoy a great deal but regard as a poor guide to national security policy.

As you may know, the Green Lantern Corps is a sort of interstellar peacekeeping force set up by the Guardians of Oa to maintain the peace and defend justice. It recruits members from all sorts of different species and equips them with the most powerful weapon in the universe, the power ring.

The ring is a bit goofy. Basically, it lets its bearer generate streams of green energy that can take on all kinds of shapes. The important point is that, when fully charged what the ring can do is limited only by the stipulation that it create green stuff and by the user's combination of will and imagination. Consequently, the main criterion for becoming a Green Lantern is that you need to be a person capable of "overcoming fear" which allows you to unleash the ring's full capacities. It used to be the case that the rings wouldn't function against yellow objects, but this is now understood to be a consequence of the "Parallax fear anomaly" which, along with all the ring's other limits, can be overcome with sufficient willpower.

Suffice it to say that I think all this makes an okay premise for a comic book. But a lot of people seem to think that American military might is like one of these power rings. They seem to think that, roughly speaking, we can accomplish absolutely anything in the world through the application of sufficient military force. The only thing limiting us is a lack of willpower.

What's more, this theory can't be empirically demonstrated to be wrong. Things that you or I might take as demonstrating the limited utility of military power to accomplish certain kinds of things are, instead, taken as evidence of lack of will. Thus we see that problems in Iraq and Afghanistan aren't reasons to avoid new military ventures, but reasons why we must embark upon them: "Add a failure in Iran to a failure in Iraq to a failure in Afghanistan, and we could supercharge Islamic radicalism in a way never before seen.

For more: The Green Lantern Theory of the Presidency, explained.

From the NYT: How Dick Cheney Reined in Presidential Power

This is a counterintuitive argument. Its generally held that Cheney - along with President Bush - increased presidential powers considerably during their tenure in office. The author - who was a member of the administration actually argues that their actions led to pushback from other institutions which actually weakened the presidency:

Unilateralism in secret is sometimes necessary at the height of a crisis, and Cheneyism was effective in the short run. But it is disastrous over the medium and long term. The president cannot accomplish much over time without the assistance of his bureaucracy and the other institutions of government. And he cannot garner that assistance through mere commands. He must instead convince these institutions that his policies are good and lawful ones that they should support.

Cheney’s book expresses contempt for such soft power. He complains about pesky government lawyers, a weak-kneed Congress, activist justices and a treasonous press that exposed, rejected or changed nearly all of the Bush counter­terrorism policies. What he does not say is that his insistence on circumventing these institutions was often responsible for their blowback. The surveillance confrontation resulted when Justice Department lawyers discovered that prior legal opinions were filled with factual and legal errors caused by an absence of deliberation about the complicated program. And damaging leaks about the surveillance program resulted from the perception of illegitimacy inside the government caused by Cheney’s corner-cutting unilateralism.

More broadly, the unilateralism of the early Bush years led Congress to claim ownership over military prerogatives that in previous wars were the president’s. It also led courts to reject claims of presidential wartime authority in decisions that constrained military and intelligence operations. “Looking back,” says Rumsfeld, the unilateral approach “may have contributed to an outcome the administration hoped to avoid: encroachment on the president’s powers.”
Commentary here and here.

Some Random Links Related to the War Powers Resolution

The following are intended for my 2302 and this week's written assignment. These are a variety of stories related to the War Powers Resolution and whether Obama violated the law by joining the "intervention" against Qaddafi in Libya. I'm especially interested in the nature of the conflict as it winds its way through Congress. This is an institutional conflict as much as anything else and I'm interested in the current nature of the showdown between the legislative and executive branches regarding war powers.

These links should jump start the investigation:

- CRS: War Powers Resolution: Presidential Compliance.
- CRS: The War Powers Resolution: After Thirty Years.
- White House Report on U.S. Actions in Libya.
- On Libya, a Split in Congress Means an Obama Win
- Times Topics: War Powers Act of 1973.

Obama's Speech

The president took his message jusitifying the actioons against Libya public. No idea yet if it wil impact opinion. Andrew Sullivan summarizes the range of opinions floating by on the blogs.

An overview of opinion from the Gallup Poll:


Notice the ideological and partisan differences, ironic no?

This is a limited humanitarian intervention, not war

This answers a question we discussed in class today regarding our "activities" in Libya.

Are the Airstrikes Constitutional?

Jack Goldsmith does not think they were a good idea, but thinks they are constitutional and fall within the limits of presidential military power as defined over time by the courts:

I do not believe that the military action in Libya is unconstitutional.

Legal scholars disagree about the original meaning of the Constitution's conferral on Congress of the power "to declare war." Many contend it required Congress to formally approve all uses of U.S. military force abroad, save, as James Madison said at the Convention, in situations needed to "repel sudden attack." Others maintain the "declare war" clause provides more leeway, allowing the president to use force abroad as long as the force does not rise to the level of "war," whatever that means. Yet others argue that the framers meant simply to give Congress the authority to signal under international law a state of war; the real work in controlling presidential initiation of force, under this view, was Congress' control over appropriations and the size of the standing army. There are many more theories about the original understanding. Even if we could definitively resolve this debate, which we can't, it is unclear why original intent—which in practice rarely determines contemporary constitutional meaning—should control outcomes in the context of presidential war powers, a context that as much as any is marked by radically changed circumstances.

Compounding the problem of indeterminate constitutional language is the fact that the courts have never resolved the question about the scope of the president's power to use military force abroad without congressional authorization. Almost all litigation seeking to resolve whether a war was properly launched has been dismissed as a "political question" or because the plaintiff lacked standing. As a result, the constitutional issue has been worked out almost exclusively by practice between the political branches and not by the courts.
Eric Posner suggests that Obama is doing nothing that previous presidents have not done before him (the imperial presdiency may now be institutionalized), and suggests further that Congress should play a limited role :

President Obama is following a long line of precedents in which the executive lanched a foreign war without congressional authorization. The president disavowed these precedents during his campaign; he may or may not attempt to distinguish his campaign statement by invoking the UN security council resolution authorizing the attack, as Truman did for Korea. But this legal wrangling is all superstructure. Congress is disabled in numerous ways from making practical contributions to a war effort. It cannot prevent the president from starting a war, and it is nearly impossible to halt an ongoing war. Wars, then, simply become an opportunity for members of Congress to stake their reputations as hawks or doves for the sake of future elections.

. . . Congress could not play a role. Lacking a leader who could commit it to a course of action, Congress could not make promises. Lacking a single mouthpiece, it could not be consulted. Foreign countries naturally turned to the president. Nor is it realistic for Congress to formally ratify the president’s decision if formal ratification involves the possibility of rejection. Then the next time that the United States is involved in a foreign policy crisis, other countries won’t know who to speak to, and who to believe.


As we've argued in class, the stucture of the executive seems to put it in a better position than Congress to make and implement decisions about foreign affairs. Its a matter of design.

Are the Airstrikes Impeachable Offenses?

Dennis Kucinich thinks so:

A hard-core group of liberal House Democrats is questioning the constitutionality of U.S. missile strikes against Libya, with one lawmaker raising the prospect of impeachment during a Democratic Caucus conference call on Saturday.

Reps. Jerrold Nadler (N.Y.), Donna Edwards (Md.), Mike Capuano (Mass.), Dennis Kucinich (Ohio), Maxine Waters (Calif.), Rob Andrews (N.J.), Sheila Jackson Lee (Texas), Barbara Lee (Calif.) and Del. Eleanor Holmes Norton (D.C.) “all strongly raised objections to the constitutionality of the president’s actions” during that call, said two Democratic lawmakers who took part.

Kucinich, who wanted to bring impeachment articles against both former President George W. Bush and Vice President Dick Cheney over Iraq — only to be blocked by his own leadership — asked why the U.S. missile strikes aren’t impeachable offenses.

Kucinich also questioned why Democratic leaders didn’t object when President Barack Obama told them of his plan for American participation in enforcing the Libyan no-fly zone during a White House Situation Room meeting on Friday, sources told POLITICO.

And liberals fumed that Congress hadn’t been formally consulted before the attack and expressed concern that it would lead to a third U.S. war in the Muslim world.

The Responsibility to Protect Doctrine

Obama's decision to join the effort to enforce the U.N. Resolution against Libya seems to be justified by something called the Responsibility to Protect Doctrine.

From Wikipedia:

The responsibility to protect can be thought of as having three parts.



1.A State has a responsibility to protect its population from genocide, war crimes, crimes against humanity and ethnic cleansing (mass atrocities).


2.If the State is unable to protect its population on its own, the international community has a responsibility to assist the state by building its capacity. This can mean building early-warning capabilities, mediating conflicts between political parties, strengthening the security sector, mobilizing standby forces, and many other actions.


3.If a State is manifestly failing to protect its citizens from mass atrocities and peaceful measures are not working, the international community has the responsibility to intervene at first diplomatically, then more coercively, and as a last resort, with military force.
- Daniel Larison is not convinced by it.
- Some detail on how the decision was made to go at Libya.
- International Coalition for the Responsibility to Protect.

Is Obama Now an Imperial President?

Now that he's made a decision to commit forces without congressional approval, Andrew Sullivan thinks so:

The proper response to this presidential power-grab is a Congressional vote - as soon as possible.

That will reveal the factions that support this kind of return to the role of global policeman, and force the GOP to go on the record. I also look forward to the statements of the various Republican candidates in support of this president. ...

A congressional vote is also important to rein in the imperial presidency that Obama has now taken to a greater height then even Bush. No plane should lift off, no bomb released, until the Congress has voted. I don't see why Obama should oppose this. He needs some Congressional support in an open-ended military commitment to ensure the protection of civilians in Libya.

Top Secret America

Last year the Washington Post published an interesting study of the security and intelligence apparatus set up after 9/11.

Is the Imperial President Inevitable?

The renewed expansion of presidential power has obviously driven the publication of several books, here's the latest. Interestingly the author reviewed some of the books we covered below.
















The book's reviewer wonders, as we have mentioned in class, whether the executive branch would inevitably become the dominant branch.

Obama's Executive Orders

More for our upcoming 2302 discussion of executive power. A few links to information about President Obama's executive orders:

- National Archives: Lists for each year.
- National Archives: List by subject matter.
- White House Site: List of executive orders.

Swanson on Presidential Power

Thanks to the intrepid student who pointed this article out to me. It's one man's take on the factors driving the expansion of presidential power. This argument should be familiar to my 2302's. Here's the intro:

Presidential power has been on a pathway of expansion beyond what the Constitution outlined, and what a government of, by, and for the people requires, since George Washington was president. That expansion, which hit the highway after World War II, got a turbo boost during the co-presidency of George W. Bush and Dick Cheney.

Some of the new powers that those two stole from Congress, the courts, the states, and us the people are being abused less severely in this new age of Obama; others, more so; but far more crucially, in a pattern followed by recent presidencies, all are being maintained, if not expanded, and thus more firmly cemented into place for future presidents to use. Wherever you fall on the political spectrum, you are likely to strongly oppose some major decisions of some future presidents.

The Expansive Powers of the President

Eric Posner reviews two books about the expansive powers of the president and the federal executive in general. His reviews illustrate some of the problems with executive power that we will cover this week.





 
 
 
 
 
 
 
 
 
 

The first is The Discretionary President: The Promise and Peril of Executive Power, which attempts to determine when and under what conditions a president may be able to justifiably exceed the limits placed on his powers by the constitution:

He argues that the president needs the discretionary power to disregard the law during emergencies, but also that actions taken pursuant to this power should not be regarded as within his legal power. The president may use his “extra-constitutional” authority to take such actions if they are necessary to protect the nation; the actions must be taken during “extraordinary” rather than ordinary times, and they must not reflect the president’s personal views about what is morally important or politically expedient. If the president does not satisfy these conditions, the public must pressure Congress to impeach him. If he does satisfy them, his actions undergo a kind of constitutional baptism that washes away the taint of illegality.
For all the talk we have offered regarding how the presidents is not allowed prerogative powers, this isn't an absolute restriction. It must be accepted that on occasion a president will have go beyond constitutional limitations, but when that happens, other restrictions must kick in gear:

Hobbes, Locke, Hamilton, Madison, Jefferson, and Lincoln march splendidly across its pages, dispensing wisdom in extraordinary prose. The Americans in that group of authorities all agreed that the president of the United States must have the discretionary authority to disregard laws where necessary to address an emergency. They disagreed about whether the president enjoys implicit constitutional authority to take these actions or must act outside the Constitution. This distinction mattered to the founders and to Lincoln because they had to explain how their visions of limited government left the executive the discretionary powers it needs to protect the nation. But history settled the debate. Executive prerogative has been institutionalized. The only remedy for abusive behavior by presidents is political: in impeachment or at the polls.














 


 
 
 
 
 
The second book is The Decline and Fall of the American Republic which details the problems associated with the expansion of executive power that we will cover this week. The book's author outlines remedies Posner finds unrealistic and in his conclusion has this to say about the factors leading to the increase of presidential power:

The executive has evolved to its present state because it is the one political institution that can address modern problems. The clumsy, many-headed Congress is hampered by its over-elaborate structure and its senatorial half, where the threshold for action is so high and senators from small states have excessive power. The courts are too weak, passive, and decentralized. State governments are too small. The military lacks people’s trust, at least as far as civilian governance is concerned, because it is not a democratic institution. Precisely because the Founders created an executive office with ill-defined powers, this office could rise to meet modern challenges. James Madison’s vision of checks and balances has given way to a system of executive primacy, but rather than leading to tyranny, as he feared, democratic politics has-so far—kept the American president, sometimes for better and sometimes for worse, under control.
The increased power of the executive may have been inevitable.

Secret Codes and the Founding Fathers

This could a fun read.

Law Enforcement Seeks Expanded Surveillance Powers

From the NYT:

Law enforcement and counterterrorism officials, citing lapses in compliance with surveillance orders, are pushing to overhaul a federal law that requires phone and broadband carriers to ensure that their networks can be wiretapped, federal officials say.



The officials say tougher legislation is needed because some telecommunications companies in recent years have begun new services and made system upgrades that caused technical problems for surveillance. They want to increase legal incentives and penalties aimed at pushing carriers like Verizon, AT&T, and Comcast to ensure that any network changes will not disrupt their ability to conduct wiretaps.



An Obama administration task force that includes officials from the Justice and Commerce Departments, the F.B.I. and other agencies recently began working on draft legislation to strengthen and expand the Communications Assistance to Law Enforcement Act, a 1994 law that says telephone and broadband companies must design their services so that they can begin conducting surveillance of a target immediately after being presented with a court order.

- Wikipedia: Communications Assistance to Law Enforcement Act.

Military Spending and Technological Development

While we are about to dig into the development of the executive branch, I thought it might be interesting to look at the role military has had in developing and promoting recent technologies.

- The Computer History Museum.
- ENIAC.
- The History of the Internet.

The military, obviously, puts a premium on speedy, accurate information and analysis. They had a hand in early development of the telegraph, radio, radar and television as well.

A Glimpse Into the Future?

How Caesarism Came to America.

Report on the Imperial Presidency

I was just tracking some information down on John Conyers, who chairs the House Judiciary Committee, and ran across this report from March 2009 on accusations that the Bush Administration's use of executive power bordered on the imperial. Its quite partisan, but introduces the concept of the Imperial Presidency, which my 2302s study when we cover the executive.

For what its worth, there are allegations that Obama has picked up where Bush-Cheney left off with similar abuses. Glenn Greenwald at Salon beats this drum quite a bit. Power once acquired is difficult to relinquish.

Et Tu Obama?

Some supporters of the Bush Administrations efforts to expand executive power argued that Obama would likely continue the trend. Power, once gained, is seldom given up. Bruce Fein sees evidence that this is the case. Many of the arguments made by the Bush Administration regarding the ability of enemy combatants to challenge their detentions (state secrets arguments mostly) are being made again.

The arguments have been rejected by the judiciary however: Last week, in the case Fadi al Maqaleh, United States District Judge John D. Bates denied that President Obama could make suspected "enemy combatants" disappear into the Bagram Theater Internment Facility at Bagram Airfield in Afghanistan without an opportunity for exoneration.

Students should note the use of two passages in the Federalist Papers arguing why the rule of law should still apply in these cases:

First: In the Bagram Prison litigation, Judge Bates summoned the observation of Alexander Hamilton writing in The Federalist 84: "[C]onfinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." Accordingly, he held that enemy combatant detainees at Bagram who were captured outside Afghanistan and who were not Afghan citizens could challenge the constitutionality of their detentions in federal courts through writs of habeas corpus.

Second: The Bagram procedures are descendents of the Spanish Inquisition. The executive branch decrees that "enemy combatant" status justifies detention, enforces the decree through executive detentions, and decides whether its enforcement decisions are correct. That combination was what the Founding Fathers decried as the "very definition of tyranny" in The Federalist 47. In addition, the incriminating evidence and accusers are secret. And the judges are military persons the detainee is accused of hoping to kill, which probably compromises their putative impartiality.


The point of a constitution is to prevent an arbitrary, tyrannical government from emerging. Wars, especially perpetual wars like the war on terror promises to be, provide great opportunities for their emergence. In my 2302 classes we have covered the concept of judicial independence. Here we an see a great example of why the concept is necessary.