Friday, December 23, 2005

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"The judicial equivalent of a bitch slap"

That's Jacob Sullum's assessment of what 4th Circuit Court of Appeals judge Michael Luttig delivered to the Bush administration in denying their request to transfer Jose Padilla from military to civilian custody. Orin Kerr concurs.

Luttig was on Bush's short-list for Supreme Court nominees, but as Sullum points out:

The rebuke is richly deserved. Even a court that was prepared to recognize the detention authority asserted by Bush is not prepared to let him submit his policies to judicial review only when he feels like it.
Indeed, just about every branch or bureaucracy of government is bitch-slapping George W. Bush this month on national security issues.

There's the judicial branch. Beyond Luttig, another federal judge resigned from the Foreign Intelligence Surveillance Court in reaction to the NSA domestic surveillance program, forcing the administration to brief the rest of the FISA judges before they faced a full-blown judicial revolt.

There's the legislative branch. As Jim VandeHei and Charles Babington point out in today's Washington Post:

This week's uprising against a four-year extension of the USA Patriot Act was the latest example of a new willingness by lawmakers in both parties to challenge Bush and his notions of expansive executive power.

Since this spring, Congress has forced Bush to scrap plans for a broad restructuring of Social Security, accept tighter restrictions on the treatment of detainees and rewrite his immigration plan. Lawmakers have rebuffed Bush's call to make permanent his first-term tax cuts and helped force the president to speak more candidly about setbacks in Iraq.

"What you have seen is a Congress, which has been AWOL through intimidation or lack of unity, get off the sidelines and jump in with both feet," especially on the national security front, said Sen. Lindsey O. Graham (R-S.C.).

What is most striking is that the pushback is coming not just from Democrats and moderate Republicans, who often disagree with Bush, but also from mainstream conservatives.

The year's events, say some legislators and scholars, reflect more than just a change in the president's legislative scorecard. They suggest Bush may have reached the outer limits of a long-term project to reshape the powers of the presidency.

Finally, there's the permanent bureaucracy. As David Ignatius pointed out earlier this week in the Washington Post the torture question has revealed a clash between the Bush administration and national security professionals (link via Kevin Drum):
The national security structure that the Bush administration created after Sept. 11, 2001, began to crumble this month because of a bipartisan revolt on Capitol Hill. Newly emboldened legislators forced the administration to accept new rules for the interrogation of prisoners, delayed renewal of the Patriot Act and demanded an investigation of warrantless wiretapping by the National Security Agency.

President Bush has bristled at these challenges to his authority over what has amounted to an undeclared national state of emergency. But the intelligence professionals who have daily responsibility for waging the war against terrorism don't seem particularly surprised or unhappy to see the emergency structure in trouble. They want clear rules and public support that will allow them to do their jobs effectively over the long haul, without getting second-guessed or jerked around by politicians. Basically, they don't want to be left holding the bag -- which this nation has too often done with its professional military and intelligence officers....

One little-noted factor in this re-balancing is what I would call "the officers' revolt" -- and by that I mean both military generals in uniform and intelligence officers at the CIA, the NSA and other agencies. There has been growing uneasiness among these national security professionals at some of what they have been asked to do, and at the seeming unconcern among civilian leaders at the Pentagon and the CIA for the consequences of administration decisions.

The quiet revolt of the generals at the Pentagon is a big reason U.S. policy in Iraq has been changing, far more than Bush's stay-the-course speeches might suggest. Defense Secretary Donald Rumsfeld is deeply unpopular with senior military officers. They complain privately about a management style that has stretched the military to the breaking point in Iraq. For months they have been working out details of troop reductions next year in Iraq -- not just because such action will keep the Army and Marine Corps from cracking but because they think a smaller footprint will be more effective in stabilizing the country.

A similar revolt is evident at the CIA. Professional intelligence officers are furious at the politicized leadership brought to the agency by ex-congressman Porter Goss and his retinue of former congressional staffers. Their mismanagement has peeled away a generation of senior management in the CIA's Directorate of Operations who have resigned, transferred or signaled their intention to quit when their current tours are up. Many of those who remain are trying to keep their heads down until the current wave of political jockeying and reorganization is over -- which is the last thing you would want at an effective intelligence agency.

The CIA, like the military, wants clear and sustainable rules of engagement. Agency employees don't want their careers ruined by future congressional or legal investigations of actions they thought were authorized. Unhappiness within the CIA about fuzzy rules on interrogation, and the risk of getting clobbered after the fact for doing your job, was a secret driver for Sen. John McCain's push for a new law banning cruel interrogation techniques.

The great thing about the American system of government is that whenever one branch exceeds its traditional scope of authority, that branch is eventually brought to heel by the other parts of government.

This is one of the iron laws of politics that George W. Bush is now facing.

posted by Dan on 12.23.05 at 03:49 PM


I don't read a ton of circuit court opinions or anything, but Luttig's seemed like a case of barely concealed rage. I got the impression that he felt completely suckered by the Bush administration and was clearly telling them that it would be hard for any court to take their urgent claim of emergency powers seriously in the future.

The news reports really didn't do justice to Luttig's opinion. "Sharp rebuke" is putting it mildly, I think.....

posted by: Kevin Drum on 12.23.05 at 03:49 PM [permalink]

Let ambition counteract ambition....

loved this post, dan. I'm a huge fan of the Federalist Papers.

posted by: Laura on 12.23.05 at 03:49 PM [permalink]

Dan, this "long-term project to reshape the powers of the Presidency" would have lasted all of about nine months and petered out inconsequentially had it not been for 9/11. Conversely it might have gone much farther than it has in the hands of a President who was really running the show in the manner of Eisenhower or Nixon instead of delegating all the hard work, to the point that policy is actually being made by the Vice President.

I don't actually expect history to be terribly kind to the other branches of the American government, let alone to those among Bush's subordinates who saw things running off the rails and waited to say something about it until they were safely employed outside the government. A very low standard of performance has applied at the highest levels of the executive branch for almost five years, and the other branches are reacting against it only now. Their "revolt" is nothing to be proud of.

posted by: Zathras on 12.23.05 at 03:49 PM [permalink]

"Their mismanagement has peeled away a generation of senior management in the CIA's Directorate of Operations who have resigned, transferred or signaled their intention to quit when their current tours are up."

Ignoring for the moment the other substantive points raised in this post. Why, exactly, is it a bad thing that a generation of spectacularly incompetent senior managers at the CIA-DO have been forced out?

posted by: George on 12.23.05 at 03:49 PM [permalink]

"WHENEVER one branch exceeds its traditional scope of authority, that branch is eventually brought to heel" .... EH?

The judicial branch has been exceeding its traditional scope of authority for several decades at least, and it hardly looks like it's been brought to heel. I'd call that the outstanding weakness of our system of government.

posted by: Crank on 12.23.05 at 03:49 PM [permalink]

Luttig is betting that the Supreme Court will take the case? Luttig believes that the Supreme Court will find that the NSA cannot monitor communications from Al Qaeda to people within the United States?

These inferences seem fanciful to me.

posted by: Thomas Esmond Knox on 12.23.05 at 03:49 PM [permalink]

Given Alito's record during his time at the DOJ, I wouldn't get too excited about Luttig's apparent scruples.

Also, if the McCain amendment is Congress's declaration of principles, why did the Congress also vote to allow evidence gained through torture? I don't think it's nearly as straightforward as the Post article claims.

posted by: Darius the Lesser on 12.23.05 at 03:49 PM [permalink]

"Ignoring for the moment the other substantive points raised in this post. Why, exactly, is it a bad thing that a generation of spectacularly incompetent senior managers at the CIA-DO have been forced out?"

Posted by George

For the obvious reason that, no matter how incompetant the current bureaucrats are, anybody put in by George Bush will exceed them in both incompentancy and corruption.

posted by: Barry on 12.23.05 at 03:49 PM [permalink]

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