Photo courtesy of Eric Posner Eric Posner, Kirkland and Ellis Professor of Law at the University of Chicago Law School and co-author of The Executive Unbound, discussed the Obama administration’s use of executive war powers with the Georgetown Journal of International Affairs.

GJIA: You've written about the importance of political constraints in shaping executive behavior. How have political constraints influenced the Obama administration's use of its war powers authority and conduct during the War on Terror?

EP: One good example would be Guantanamo Bay. The Obama administration would like to shut down Guantanamo Bay, or at least release more people located there at the moment, but it can’t because of political constraints. Obama could legally close the base just using his war powers, but he doesn’t want to because if he did the Republicans would make a big deal about it and criticize him. If any of the people released were subsequently involved in a terrorist attack, Obama would look terrible and public opinion would turn against him. That is an example of a political constraint that has prevented President Obama from using war powers in a way that he probably would want to.

GJIA: How has the use of covert operations, such as offensive cyber operations and drone strikes, affected how these political constraints work and impact executive decision-making?

EP: When the executive branch engages in secret behavior, it faces a trade-off. On the one hand, these actions can be more effective if they are secret. If its political adversaries don’t know about the operation, the executive may avoid divisive political battles that weaken its ability to take its preferred course of action. On the other hand, if it does something secretly and that action is subsequently revealed, the public starts thinking about what else the executive may be doing that the public hasn’t been told about. The public may lose its trust in the presidency, depending on the nature of the secret activity, or it may just trust the president less than before. Given this, it seems plausible that many of the covert activities that the president engaged in were relatively uncontroversial and that he wasn’t taking much of a political risk because, when they were revealed, people said the activities were fine. Nobody in the United States really objects to secret drone strikes, for example. Other things he did alarmed people when they came to light, and President Obama has taken a political hit as a result of that. I don’t know if he made the trade-offs correctly at the time that he approved these actions, but I think that what we have observed reflects these kinds of trade-offs that any president has to make.

GJIA: You’ve argued before that the executive should complement its first-order policy goals with second-order mechanisms that demonstrate its credibility and benign motivations. What, if any, of these kinds of mechanisms has Obama employed and what new actions should the administration take to more effectively establish credibility?

EP: One example is that, after the NSA activities came to light as a result of the Snowden revelations, Obama created a commission of five people to look at the actual classified information about the program, issue a report, and make recommendations. He put well-known civil-libertarians like Geoffrey Stone on the committee. These were not just people who were a part of the party establishment. So this commission had some independence and integrity and, as a result, credibility. He couldn’t control what the commission said or did, but whatever the commission said would have some credibility. In fact, its report did have a positive political effect for Obama. It made recommendations that he was required to decide on regarding whether to implement them, but its findings were not tremendously damning. It suggested that people acted in good faith, but that maybe some of the programs were unwise or could be improved in various ways. All in all, this was an effective way to use a second-order mechanism to enhance credibility. It may well be the case that Obama didn’t do this enough, but other things he has done include appointing Robert Gates as the head of the Department of Defense. Gates is a Republican and has worked for Republican administrations. That is the sort of thing that past presidents, such as Franklin Delano Roosevelt, did, and that in this case helped President Obama maintain his credibility with at least some Republicans.

What else could he do? I don’t know. I’m not sure at the moment that this is his biggest problem. At the moment, people are less worried about whether he is violating civil liberties and more worried about countering Russia and China. To some extent, events have changed so that this is just no longer a big problem.

GJIA: Is Russia invading Ukraine an example of the kind of emergency that could allow U.S. presidents to consolidate their executive authority?

EP: I think so. It is right at the margin. It is not something like the Cuban Missile Crisis—it is nowhere near that kind of emergency—but it is not as marginal as fighting pirates off the coast of Somalia either. It is in between and, while a lot will depend on whether the Russia-Ukraine situation will escalate into a full-blown crisis, you can feel the shift. People are saying to President Obama that he needs to do something. Even people who are not bellicose are not in the mood to talk about issues of classified information. The question they want to debate is: what is the right way to help Ukraine?

GJIA: How likely are future Congressional attempts to constrain the executive via statutory restrictions? In particular, will Congress update or repeal the Authorization for Use of Military Force (AUMF), and would changing the AUMF actually limit executive power?

EP: Here’s what will most likely happen: nothing. There just isn’t a problem that needs to be addressed. If the president were to use the AUMF to justify attacking Russia or South Sudan, that would be a problem. In such a scenario, you could imagine congress trying to constrain Obama by repealing or revising the AUMF as it became too much of a carte blanche. I don’t think, though, that Obama is going to do that or that Congress is in the mood, particularly now, to try to constrain the power of the executive. A further point is that the AUMF has always been redundant, to a large extent, with inherent executive authority to use military force abroad. President Clinton did not need an AUMF to send military forces into Serbia. He did it relying only on his Constitutional authority, even in the face of Congressional opposition. The AUMF does not really mean anything anymore—it has just merged in a complicated way with the vague constitutional and political authority that the president enjoys to use military force abroad. Again, if there were a crisis and the president really overreached in a way that was extremely unpopular, that would be one thing, but that is unlikely to happen.

GJIA: What future events could shatter the current gloss on executive wars powers?

EP: Only extraordinary changes in the conditions of human existence could. For example, if peace broke out everywhere and nobody ever felt there was a need to use military force. In the early 19th century, Americans were concerned about the United Kingdom, France, and Spain a little bit, but they were not considered serious threats. After the War of 1812, Americans didn’t think these countries would invade, so it wasn’t really necessary to have a powerful executive to send troops abroad. If the United States faced a situation like that again, executive authority might decline, but that situation is just not going to happen. The other extreme view is if a president went off the rails and became a dictator or a militarist and engaged in extremely unpopular military action. It is hard to imagine that happening in the foreseeable future after the unpopularity of the wars in Iraq and Afghanistan. Those are the two types of events that could cause a change, but I just don’t see them happening.

 

Dr. Eric A. Posner is Kirkland & Ellis Distinguished Service Professor of Law at the University of Chicago, where his current research focuses on international law, immigration law, and foreign relations law. His book, The Executive Unbound: After the Madisonian Republic, coauthored with Adrian Vermeule, was published in 2011 by Oxford University Press.

Dr. Posner was interviewed by Zachary Burdette on 2 May 2014