Andrew C. McCarthy's Blog, page 72

Another National-Security Flip-Flop

The Obama Left has changed its mind about executive power.

No sooner did Victor Davis Hanson compile a prodigious list of national-security flip-flops by the Obama Left (posted on the Corner under the title “If We Say It Is, It Is . . . ”) than we learned the list would have to get longer. Keeping up with this administration’s reversals is a full-time job.

The New York Times reports that President Obama is considering the issuance of an executive signing statement in conjunction with his impending assent to the defense appropriations bill. Remember when the Law Profs Division of the Obama Left told us Bush signing statements were the death knell of our constitutional system?

#ad#In fact, as Times correspondent Charlie Savage concedes (you’ll find it if you stick around through the end of his report), then–Yale Law School dean Harold Koh joined his American Bar Association colleagues during those bad old Bush days in blasting signing statements as “contrary to the rule of law and our constitutional separation of powers.” You may know Dean Koh better from his current job: top lawyer in the Obama State Department. In any event, it seems that in the age of Obama, signing statements are one of the few things that are not a crisis. Savage grudgingly recounts that Obama has actually issued several signing statements already. The reporter is quick to qualify Obama signing statements as “relatively uncontroversial challenges” to congressional authority, by which he apparently means they were not upsetting to the Times.

This one, though, will be controversial even by the Gray Lady’s forgiving standards for this president. Mr. Obama is weighing whether to announce that his sweeping powers under Article II of the Constitution nullify Congress’s prohibition against transferring terrorist detainees from Gitmo to the U.S. for civilian trials. The president also objects, we’re told, to a congressional provision that would bar transfers of detainees to other countries absent a certification from the secretary of defense that the countries in question had met what Savage describes as “a strict set of security conditions.” 

This is a truly remarkable development. The Lawyer Left went berserk over President Bush’s constitutionally rooted and historically tame assertions of executive power. Though the appeals court created by Congress to rule on surveillance matters had endorsed the principle that the president has inherent power -- which Congress cannot vitiate -- to conduct national-security surveillance, lefty lawyers screamed that the Bush NSA’s warrantless surveillance program was illegal, an inexcusable violation of Congress’s FISA statute. Judiciary Committee chairman John Conyers and several other House Democrats even suggested that Bush be impeached over it.

Lawyers including Eric Holder filed briefs on behalf of al-Qaeda terrorist Jose Padilla, objecting to Bush’s assertion of commander-in-chief authority to detain Padilla, a U.S. citizen, as an enemy combatant rather than give him a full civilian trial. (We haven’t heard much from now–Attorney General Holder on why it’s nevertheless constitutionally kosher for commanders in chief to assassinate an American citizen, as Obama has apparently authorized with respect to Anwar al-Awlaki.) Georgetown Law School professor Neal Katyal -- now Obama’s acting solicitor general -- convinced a sharply divided Supreme Court that the commander-in-chief could not order military-commission trials for terrorist war criminals because such presidentially authorized commissions purportedly violated a congressional statute (the Uniform Code of Military Justice), notwithstanding that presidents and military commanders had been using commission trials since the Revolutionary War.

Vice President Dick Cheney and his staff were the targets of ceaseless scorn for what was breathlessly claimed to be a Cheney agenda to restore presidential power to the zenith it had reached before Watergate. Books were written lamenting the Bush administration’s purported aversion to working with Congress. (Little, though, was said about Democratic leaders in Congress being briefed in real time about the CIA’s interrogation program, the detention camp at Gitmo, and the NSA program.)

#page#Now, though, the president is a Democrat and Republicans are resurgent in Congress. Suddenly, executive power is cool and congressional statutes no longer reflect “the rule of law.” Statutes have become a partisan nuisance addling a really smart, progressive commander-in-chief, not to mention encroaching on the inviolable, irreducible powers the Framers wisely vested in him and him alone. (Did somebody say, “unitary executive”? John Yoo, call your office!)

As it happens, President Obama is right about Congress’s attempt to hamper his ability to transfer war prisoners to foreign countries. The presidency was established largely to conduct war and foreign relations. Presidential authority in the latter case is supreme. As the Supreme Court put it in United States v. Curtiss-Wright Export (1936), the “delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations [is] a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.” Congress may be able to cut off funding for the president’s foreign-affairs initiatives; it may not dictate how the president conducts foreign affairs -- that is his job.

#ad#As I argued last week, however, transferring prisoners into the United Statesfor civilian trials is an entirely different matter. It is Congress, not the executive branch, that sets the terms for entry of non-Americans into the United States. The fact that these non-Americans are war prisoners does not alter that fact or turn the transfer (as opposed to the detention) into a commander-in-chief exercise.

Moreover, Congress is supreme when it comes to civilian trials. The president would have no prosecutorial power unless Congress enacted laws creating federal crimes, established lower federal courts, and allowed the president resources for federal prosecutions -- the Framers assumed prosecution would be a state function, and both the attorney general and the Justice Department are creatures of statute, not of the Constitution.

The president has no more power to dictate to Congress whether and where civilian trials will take place than he does to dictate to the courts the rulings the judges are to make in such cases. The executive branch has considerable authority in the civilian justice system. Unlike in the arena of foreign affairs, however, prosecutorial power must be exercised strictly within parameters set by Congress.

President Obama should have been able unilaterally to order military-commission trials for enemy combatants and to prescribe the rules under which those trials would proceed. Alas, the courts have ruled that the presidency has lost those powers; for that, Mr. Obama can thank the lawyers now working for him. Presidents, though, have never had the constitutional power unilaterally to decide which aliens get to enter the United States, nor the power to prescribe crimes and vest courts with the jurisdiction to try them. When President Clinton wanted to try more terrorists in civilian courts in the 1990s, he needed to convince Congress to overhaul counterterrorism law, create new crimes that fit the behavior involved, and endow courts with jurisdiction to try them -- and Congress obliged him in 1996.

As the Left was fond of saying up until two Januaries ago, “the president doesn’t get a blank check.” Even in wartime, he needs the cooperation of Congress. Had President Obama asked, President Bush or Vice President Cheney would surely have explained that to him.

—  Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

Andrew C. McCarthy

Senator Barack Obama Explaining his 2006 Vote Against Raising the Debt Limit

From Sen. Obama's Floor Speech, March 20, 2006:

The fact that we are here today to debate raising America's debt limit is a sign of leadership failure. It is a sign that the U.S. Government can't pay its own bills. It is a sign that we now depend on ongoing financial assistance from foreign countries to finance our Government's reckless fiscal policies. … Increasing America's debt weakens us domestically and internationally. Leadership means that "the buck stops here." Instead, Washington is shifting the burden of bad choices today onto the backs of our children and grandchildren. America has a debt problem and a failure of leadership. Americans deserve better.

At the time, Senator Obama was urging Congress not to tolerate an increase that would bring the debt ceiling to $9 trillion. Under President Obama, the debt ceiling has been raised to $14.3 trillion. Even without counting most unfunded liabilities, the national debt is now calculated to be nearing $14.1 trillion. It increases about $4.22 billion per day (each citizen's share stands at roughly $45K). Thus, Democrats will soon demand that the debt ceiling be raised, lest the sky fall. When they do, they will be asking for a significant boost in a ceiling that is already 60 percent higher than the one Barack Obama said was "a sign of leadership failure" five years ago.

Andrew C. McCarthy

"Congress has to start taking greater responsibility"

That happens to be the central point of my column this morning, but I have pulled the quote from my friend Roger Pilon (of Cato), who has a terrific essay in this morning's WSJ. Roger argues:

Congress has to start taking greater responsibility. Congress must acknowledge honestly that it has not kept faith with the limits the Constitution imposes. It should then stop delegating its legislative powers to executive agencies. Congress should either vote on the sea of regulations the executive branch is promulgating or, far better, rescind or defund those regulations, policies and programs that never should have been promulgated in the first place (rescission may not be possible during the next two years, but defunding is). And of course Congress should undertake no new policies not authorized by the Constitution.

Amen. As previously noted, I'm underwhelmed by the Republican pledge to provide in each bill the constitutional grounding for what Congress is doing -- unless and until the GOP explains what it means by constitutional grounding. If Republians mean the Constitution as manipulated by the Supreme Court since the 1930s (a history Roger discusses), then the pledge is meaningless: there is no action Congress could take for which the most mediocre lawyer could not come up with a colorable justification. (See, e.g., this exchange between Sen. Tom Coburn and now-Justice Elena Kagan on whether Congress has the power to enact a law requiring Americans to eat three fruits and three vegetables every day.) But, to borrow from Roger again, if the Republicans mean to demonstrate that any new law is consistent with the "larger structure, aims and principles" of Constitution as originally understood, they they'd really have something.

Roger Pilon's essay is here (and also cited in NRO's web briefing).

Andrew C. McCarthy

Congress Must Lead, Not the Courts

Republicans cannot punt hard decisions to the judges.

The new Congress begins its session this week with historically rare fortifications: swelling ranks of Republican freshmen and a clear mandate to roll back Obama’s administrative statism. For the GOP, it is a short lease on a second life, won only after assuring a skeptical electorate that amends will would be made for Republican complicity in our current mess. Congressional leadership would thus be wise to remember that, in our free society, there is only one branch of government capable of legitimate, dramatic course corrections: the one composed of the people’s representatives. They have to act, not just go with the Potomac flow.

#ad#There is reason to worry that leadership has instead caught a case of “let the courts do it.” Take Rep. Fred Upton (R., Mich.). Despite considerable conservative grumbling, Mr. Upton has been installed by Speaker-in-waiting John Boehner as the new chairman of the House Energy and Commerce Committee. If the Obama administration’s job-killing war on industry is to be tamed, that committee will have to be smart and aggressive. The chairman-to-be is not exactly off to a flying start. In a Wall Street Journal op-ed last week (co-authored with Tim Phillips of Americans for Prosperity), he proposed that Congress sit on the sidelines for a couple of years, trusting federal judges to handle the taming.

The EPA has condemned carbon dioxide, the air humans exhale, as a pollutant that imperils human health. Under the 40-year-old Clean Air Act -- legislation passed in a very different era, under very different assumptions -- this endangerment finding is a pretext for government’s administrative juggernaut to impose ruinous curbs on all CO2 emitters, everything from large factories to small homes.

Until about five minutes ago, Representative Upton was a member in good standing of the green crusade. He was an enthusiastic cosponsor of Leviathan’s prohibition of the incandescent light bulb -- the result of standards enacted with robust Republican support and signed into law by President Bush. Upton has now recanted, a stance he claims is sincere, not -- perish the thought! -- one of those cynical Washington conversions that happen when the chair on a powerful committee is up for grabs. He also says he grasps that the best corrective to the EPA’s sweeping power grab would be for Congress “to overturn the EPA’s proposed greenhouse-gas regulations outright.”

Yet, sensing that Democrats will not go along and, evidently, that Republicans are impotent to force them into doing so by winning the political debate, Upton urges a different tack: “a sensible bipartisan compromise” that would impose a two-year regulatory moratorium while “the courts complete their examination of the agency’s endangerment finding and proposed rules.” This is reminiscent of Washington’s last “sensible bipartisan compromise,” the two-year delay in ending the Bush tax rates -- a deal Republicans celebrated as a great achievement but which actually saps tax-reform momentum while shielding President Obama from accountability for his confiscatory designs. If anything, the Upton strategy for confronting the EPA is even more counterproductive.

It was the federal courts that empowered the EPA to bring us to this precipice in the first place. The congressman pays lip service to this fact, but its significance eludes him. Specifically, in 2007, at the urging of environmental activists who were later joined by Democrat-dominated state and local governments, the Supreme Court’s liberal bloc -- four died-in-the-wool progressives plus the trendy eccentric, Justice Anthony Kennedy -- directed the EPA to determine whether carbon dioxide could be dangerous to human health. The Bush EPA already had declined to do so, so left-wing justices pushed the agency into it.

It was an act of political willfulness no lawmaker accountable to voters would ever have made -- not unless he or she had a safe seat in a blue redoubt where socializing the prohibitive costs of central-planning solutions to imaginary crises is all the fashion. In the wake of Climategate’s data-manipulation revelations, the ruling (Massachusetts v. EPA) reads like parody, accepting as an undeniable given that global warming is a pending catastrophe unquestionasetbly caused by human activity.

#page#As legal craftsmanship, the opinion is spurious. The slim majority ran roughshod over settled jurisprudence on standing. These principles require courts to stay their hands and let the regular democratic process handle policy disputes absent a concrete injury to an individual person -- not a policy decision that rubs an interest group the wrong way. Such an injury must be clearly traceable to harmful actions and be capable of redress by the remedy demanded; litigation is not for speculation and moral victories. Ignoring these principles and leaping headlong into the political fray, the justices waved off the Bush EPA’s reasons for declining to regulate carbon dioxide -- reasons that were both valid and adequately checked by the political process. Not the least of those considerations was this: If the “crisis” were truly global, any marginal benefit from U.S. regulations would be wiped out by the refusal of emerging foreign economies to join a green suicide campaign.

#ad#Nevertheless,  Representative Upton has managed to convince himself that the courts, having spurred a reluctant EPA to action, will suddenly be disposed to rein in the agency now that Obama’s aggressive bureaucrats have forced it to get with the Supreme Court’s program. After all, the congressman rationalizes, there are clear-cut legal challenges pending against EPA’s gambit, including the agency’s failure to forecast likely job losses. He’s kidding himself. Does the congressman not think the Bush administration had pretty good legal claims when the EPA tried to fight off the climate alarmists in the Supreme Court? Does he not think Arizona had pretty good arguments last year when it explained to a federal district judge that its new immigration statute was merely aimed at upholding federal immigration law? How did those cases work out?

Whether there really is a climate crisis, the questions of what its material causes are and how costs and benefits should be weighed in deciding what is to be done are political questions, not legal ones. Policy is the work of Congress, not the courts.

A two-year legislative time-out so that litigation can proceed would most likely accomplish two things, both bad. First, we should expect at best a mixed bag of rulings. More likely, we’d see decisions favoring the Obama EPA from a combination of activist left-wing judges (more and more of whom are being appointed by President Obama) and from restrained judges who understandably feel obliged to follow the Supreme Court’s lead. Second, while sapping Congress’s will to act and imbuing court decisions with outsize significance, a two-year delay would reward Obama’s EPA with the patina of judicial legitimacy. That would further undermine any hope for a democratically driven policy that gives the environment its due -- whatever that may be -- while promoting economic growth.

Americans did not oust Democrats in droves because they wanted these kinds of “sensible bipartisan solutions.” “Bipartisanship” is a euphemism for avoiding risk and tolerating a wayward status quo. Little wonder that the word trips effortlessly off the tongues of professional politicians: Their influence depends on the status quo’s increasing concentration of power in Washington. Americans ousted Democrats in droves because they want the status quo changed and power over their lives transferred from Washington to themselves. That means fighting to reform relics like the Clean Air Act without fear of being caricatured as against clean air. It doesn’t mean sitting safely on the sidelines while the Left sees what it can get done in the courts.

Before the midterm elections, Republicans talked a good game about fighting the predicament they helped put us in. Now, it is time for the actual fighting. That will take thick skin and stiff spines. Without copious reserves of both, the new lease will be very short indeed.

—  Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

Andrew C. McCarthy

Re: That Was Then, This Is Now

Thank goodness the Justice Department doesn't need reform!

Happy New Year everyone!

Andrew C. McCarthy

Recess Appointment of Cole as DAG

An outrage. Jen Rubin counts the ways, with help from Sen. Jeff Sessions, Rep. Pete King, and Debra Burlingame.

Andrew C. McCarthy

Islamist and Leftists Cooperating? Surely You Jest ...

Well, no, I don't. And for the gazillionth case in point, see today's fawning NYT profile of Al Akhbar -- the proudly leftist Lebanese daily (and, like the Times, Wikileaks partner) that champions Hezbollah. The profile seems largely based on an interview with Al Akhbar's "mild and cerebral" managing editor, Khaled Saghieh, who left Amherst -- where he'd been pursuing a doctorate in political science -- to start the paper.

Andrew C. McCarthy

The President Is No Prosecutor

Congress, not the executive, controls criminal law.

With respect to the federal government, whose formation he then was championing, Alexander Hamilton assured skeptics during the debates over the new Constitution that state governments would enjoy “one transcendent advantage” -- they would retain control over “the administration of criminal and civil justice.” The prosecution of crimes would not be a federal responsibility at all.

#ad#That consensus position of the Framers is one that my friends David Rivkin and Lee Casey should have kept in mind before writing “The Wrong Way to Stop Civilian Terror Trials,” a deeply flawed essay published in the Wall Street Journal last week. The two former Reagan Justice Department officers usually offer compelling insights on executive war powers, but their claim that criminal prosecution lies at “the very core of [the president’s] constitutional power” is meritless. It also leads them to an even more specious conclusion: namely, that Congress somehow violates the Constitution by using its power of the purse to block the Obama administration’s efforts to prosecute enemy-combatant terrorists in civilian federal courts.

Messrs. Rivkin and Casey specifically target budget provisions that bar using federal funds to transfer prisoners detained at Guantanamo Bay to the United States. This maneuver, the authors correctly assert, thwarts civilian prosecution. It keeps the terrorists outside federal-court jurisdiction and thus prevents their physical presence at trial, a constitutional right the lawyers reasonably assume the detainees would have in the civilian justice system. (That is, notwithstanding colorable arguments to the contrary, it is a safe bet that federal judges would continue granting the fully panoply of due-process protections to any detainees tried in civilian court.)

From there, though, Rivkin and Casey go off the rails. Congress, the lawyers claim, is violating the Constitution by dictating “whether, when, and where to bring a particular prosecution.” This places the president (and, derivatively, his Justice Department) in a purportedly unusual and untenable position: Though the nation’s “chief federal law enforcement officer and prosecutor,” he is forced “to exercise his discretion in accordance with Congress’s wishes rather than his own.” That, they insist, “violates the Constitution’s separation of powers.”

From its basic premises to its overwrought conclusion, the lawyers’ argument is wrong. There is nothing in the Constitution about the president being the chief federal law-enforcement officer and prosecutor -- in stark contrast to Article II’s designation of the president as “commander-in-chief” of the armed forces. Prosecutorial authority, instead, is inferred from Article II’s endowment of all “executive power” in the president. Obviously, since prosecution is an executive function, it is a power the executive branch must have if it is to be exercised by the federal government at all -- Congress may prescribe laws, but it may not enforce them. Still, whether and under what circumstances the prosecution power was to be exercised at the federal level are questions the Constitution left entirely up to Congress. The fact that some authority is executive in nature does not make it a “core” presidential power -- not if the word “core” is to have any meaning.

Quite intentionally, the Constitution did not establish a federal role in law enforcement. Consistent with Hamilton’s sentiments, James Madison had written that federal powers “will be exercised principally on external objects” -- meaning intercourse between our nation and other nations. Madison identified these “external objects” as “war, peace, negotiation, and foreign commerce.” Consequently, the “core” of presidential power is found where Article II intersects with these matters. Thus did Madison elaborate that “the powers reserved to the several states would focus on internal objects” -- objects which, “in the ordinary course of affairs, concern the lives, liberties and property of the people,” including the “internal order  . . . of the state.”

The Constitution did not prohibit a federal role in prosecution, just as it did not forbid the creation of federal courts inferior to the Supreme Court. Rather, it left these matters up to the legislature, which would have to find constitutional justifications for any federal intrusions.

In conjunction with establishing the lower federal courts in the Judiciary Act of 1789, Congress created the office of attorney general. President Washington chose Edmund Randolph for the position, making him the fourth cabinet member. Months earlier, among its first orders of business, the first Congress had dealt with what were understood to be the president’s core responsibilities -- national defense, foreign affairs, and finance -- by establishing the secretaries of war, state, and the treasury.

As if that did not make it clear enough that prosecution was not a core presidential function, the position of attorney general was not originally conceived as prosecutorial in nature. Rather, it was a part-time job with a nominal salary and no office or staff, created because Congress (a) realized the United States would need legal representation in court cases and (b) thought it prudent for the president to have a legal adviser.

#page#So ingrained was the assumption that criminal enforcement was a state issue that the Department of Justice -- which we now think of as the center of our prosecutorial universe -- did not even exist until Congress created it in 1870. In fact, the contention by Rivkin and Casey that Congress may not use its budgetary authority to limit the president’s prosecutorial options ignores the fact that, for decades, Congress declined to establish a Justice Department at all, much less to fund various projects the attorneys general wanted to take on. Prior to the late 19th century, while there were U.S. attorneys and federal marshals tending to very limited federal interests in the states and territories, there simply was no system of federal law enforcement to speak of.

#ad#That system developed, over a century after the Constitution’s adoption, under the direction of Congress. From the Progressive Era through the New Deal, and continuing to our own day, federal legislation and judicial decisions combined to work a radical transformation of the federal role in domestic life. Presidential administrations have pushed this process along to greater and lesser degrees. It has always been driven, though, by legislation, not by changes to the Constitution. It is Congress’s decision to act that controls the federal prosecutorial function, and although Congress has enacted many penal laws, it was not required by the Constitution to enact any.

That brings us to the main flaw in the Rivkin and Casey theory: All federal law enforcement must be performed in accordance with Congress’s wishes. It has always been that way, with every single federal prosecution in our history. To claim, as Rivkin and Casey do, that congressional limitations on “whether, when, and where to bring a particular prosecution” violate separation-of-powers principles hopelessly mangles the concept of “prosecutorial discretion.”

In point of fact, the prosecutor unilaterally decides only whether to charge an offense -- and even that decision is shaped by Congress, since a prosecutor may only charge crimes Congress has legislated, and must prove the offense elements Congress has defined. The decision when to charge is controlled by the statute of limitations and speedy-trial rules imposed by Congress. The decision where to charge is totally dependent on Congress’s power to establish lower federal courts, place limits on their jurisdiction, and prescribe venue standards.

Moreover, because the Constitution does not mandate a federal prosecutorial function, the Justice Department -- itself a creature of statute -- is entirely dependent on Congress to fund all of its activities, not just terrorism prosecutions. Congressional control over federal prosecution is thus different not only in degree but in kind from congressional control over the president’s conduct of foreign affairs, to which Rivkin and Casey compare it.

Because the conduct of foreign affairs is a core constitutional function of the executive, the president would have to carry out that responsibility no matter what Congress did. A threat to cut off funding unless the president hewed to congressional wishes would, in fact, provoke a constitutional crisis. By contrast, the Constitution would not be offended in the slightest were Congress to repeal every federal penal statute, shut down the Justice Department, and even eliminate the office of attorney general -- leaving the president with no capacity to prosecute anyone.

Such wholesale elimination would be foolish policy, but foolishness is not unconstitutional. Yes, there are too many federal statutes, and much taxpayer money is wasted by federal duplication in enforcement matters state prosecutors handle capably (and often with more deference to community sensibilities). But issues such as terrorism, organized crime, international drug cartels, and the integrity of our financial markets are national in scope, beyond the capacity of any single state to police effectively. The attorney general thus holds a vital national office, and federal law enforcement has its crucially important place in our society. It is not, however, a place carved out by the Constitution. It is sculpted by Congress.

Which brings us to a last point: Gitmo detainees should be under complete executive control, not as defendants beholden to the president and his Justice Department but as war prisoners beholden to the commander in chief. Given their splendid work on war powers, it is surprising that the authors failed to address this. The wartime decisions to detain prisoners and try them by military commission were once understood to be completely entrusted to the president and the military, the conduct of war being a core presidential power. Nevertheless, thanks to a campaign spearheaded by Barack Obama, Eric Holder, congressional Democrats, many current DOJ officials, and the Bush-deranged Left, the Supreme Court has ruled that wartime detention required judicial oversight, and that the president could not unilaterally authorize military commissions -- they had to be blessed by Congress and reviewed by federal judges. The “rule of law,” Messrs. Obama and Holder maintained -- against precedent and history -- demanded nothing less.

Now, ironically, in the federal civilian courts where Congress has always dictated the rule of law, Obama and Holder demand unilateral control. The Constitution does not give it to them. If they want to bring enemy combatants to the United States for civilian trials in which al-Qaeda operatives get all the rights of American citizens, they need to convince Congress and the American people. I’d have hoped that Messrs. Rivkin and Casey would tell them as much.

—  Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

Andrew C. McCarthy

Me Thinks Senator Graham Doth Protest Too Much

Ever since 13 Senate Republicans joined Democrats in consenting to the terrible New START treaty, Sen. Lindsey Graham has been on a tirade, telling any conservative who’ll listen that “Harry Reid ate our lunch,” meaning that Democratic leadership outmaneuvered Republicans in getting the treaty and other agenda items enacted during the lame duck session. My trial lawyer antennae tell me it sounds remarkably well rehearsed for a bit of spontaneous indignation. I first heard him do the rant on Greta Van Susteren's Fox show last night. But then this morning, Fox's Brian Kilmeade reported that Sen. Graham had actually called into Brian's radio show earlier yesterday, just after the START vote, in order to give the same "Harry ate our lunch" speech. Fox kept reporting about it this morning, complete with commentary from our friend Dana Perino, who sounded like she’s buying it.

I say, “Cry me a river.” Given the clout they have in the Republican caucus on national security and legal matters, Sen. Graham and his close ally, Sen. McCain, could have stopped START dead in its tracks a month ago by condemning it in the same terms Graham is now using. The treaty hasn’t changed a wit in that time. But Graham and McCain instead played a coy game of “maybe we’ll support it, maybe we won’t.” This, along with Sen. Lugar’s enthusiastic support, gave the Obama administration the space it needed to work on other Republican moderates, who were court-able precisely because McCain and Graham were indicating that the treaty was probably okay – or at least shouldn’t be dismissed out of hand. We even heard that McCain and Graham were horse-trading: signaling the administration that approval of START was an acceptable price for saying no to “Don’t Ask, Don’t Tell.”

If Sen. Graham is sincerely steamed, I’d wager it’s the common remorse of a gambler who knows he has overplayed his hand. There were too many cards and players beyond his control. Obama found enough court-able Republicans and got DADT anyway. By then, because Graham and McCain had let the game go on too long, there was too much momentum in START’s direction to stop it.

Then a big deal was made of the letter McCain is said to have wrested from Pres. Obama, offering collateral and totally unenforceable promises on missile defense. As had to have been known by McCain and Graham (a lawyer who obviously understands that the letter has utterly no impact on the treaty), the letter was just the fig leaf wavering moderates needed to give their consent to the pact. If McCain is truly the one who got Obama to write it, he did nothing to make the treaty better, but he did virtually ensure that it would be approved.

So if Sen. Graham feels his lunch has been eaten, he’s got himself to blame. He knows we’re now saddled with a bad pact that will be increasingly unpopular with conservatives. Having helped create the climate in which it could be ratified even though Republicans had the numbers to stop it, he’s trying to distance himself. But I’m not sure I agree with Dana’s speculation that Graham’s anger is such that his bridge with the Obama administration is now burned. The senator is not up for reelection until 2014. There’s still time for plenty of bipartisanship.

Andrew C. McCarthy

A Pefectly Fine Way to Stop Civilian Terror Trials

I will have more on this in my next column, but for now suffice it to say that the essay by my friends David Rivkin and Lee Casey in Tuesday’s Wall Street Journal is so far off base that it is hard to believe it was written by a duo that has churned so much excellent work on the government's war powers.  

In "The Wrong Way to Stop Civilian Terror Trial," David and Lee accuse Congress of violating the Constitution by using its power of the purse to prevent the Obama administration from transferring Gitmo detainees to the U.S. for civilian prosecution. In one fell swoop, the authors manage to (a) misstate the “core” functions of the presidency established by the Constitution (criminal prosecution – a function the framers assumed would be handled by the states, and that became federal only because of congressional legislation – is not one of them); (b) ignore Congress’s long and entirely constitutional history of denying the executive branch funding for prosecutions (that’s why there was no Justice Department until a century after the Constitution’s adoption); and (c) mangle the concept of prosecutorial discretion.

On the last point, contrary to the authors' claim, the prosecutor unilaterally decides only whether to charge an offense – and even that decision is shaped by Congress, since a prosecutor may only charge crimes Congress has legislated, and must prove the offense elements Congress has defined. The decision when to charge is controlled by the statute of limitations and speedy trial rules imposed by Congress. The decision where to charge is totally dependent on Congress's power to establish lower federal courts, place limits on their jurisdiction, and prescribe venue standards.  Moreover, David and Lee ignore that federal prosecutors are entirely dependent on Congress to fund all their activities, not just terrorism prosecutions.

To compare prosecution to the president's conduct of foreign affairs, as David and Lee do, is meritless. The conduct of foreign affairs and war are core constitutional functions of the presidency -- they are largely why the presidency was created. The president would have those responsibilities no matter what Congress did because they clearly stated in Article II. To the contrary, Congress could, fully consistent with the Constitution, repeal every federal penal statute, shut down the Justice Department, and even eliminate the office of Attorney General -- leaving the president with no capacity to prosecute anyone.

Nothing in the Constitution empowers the executive branch to tell Congress in which courts terrorists will be tried. Reality is closer to the opposite of what David and Lee have described.

Andrew C. McCarthy