by John Yoo
The Framers were right to worry. The Clinton and Obama campaigns competed hard to win superdelegates. No one knows whether members of Congress cut deals for themselves and their constituents in exchange for their vote, but it would have been difficult to resist. A water project here, some pet legislation there -- surely such details were worth the Democratic nomination. Lose, and the candidate pays nothing. Win, and a Presidency is gained. Like shareholders deciding whether to sell in a tender offer, superdelegates would have bargained ferociously until the moment that the nominee secured a delegate majority. As the Democratic convention approached, the demand for superdelegates would have escalated, with the choice of the nominee becoming increasingly the work of political intrigue, inside deals, and power struggles among interest groups, just as the Framers feared.
The concern is that any nominee, not just Obama, who survived this process will come to the Presidency weighed down by dozens, if not hundreds, of commitments. Some may welcome such a development. Some students of American politics argue that the President and Congress should work more closely together, and may well prefer a President who obeyed congressional wishes. But as we have seen, the historical record is not heartening. During the reign of the Jeffersonians, the congressional caucus chose the party's nominee. It yielded mediocrity, even danger. James Madison deferred as Congress drove the nation into the disastrous War of 1812, which ended with a stalemate in Canada and the capture and torching of the U.S. capital.25 "King Caucus" finally broke down when the system reached a peak of "cabal, intrigue, and faction" in the 1824 election, with Clay throwing the election in the House to Adams, allegedly in exchange for the post of Secretary of State. Jackson spent the next four years successfully attacking the legitimacy of the Adams administration and won his revenge in the election of 1828.26
It is unlikely that a candidate today would trade something as important as a cabinet post for a superdelegate's vote. But the election of 1824 ought to caution against allowing congressional leaders to play such a large role in choosing the President. Obama has advanced an ambitious domestic agenda, including an overhaul of national financial regulation, a national health care plan, large equity stakes in the banking and industrial sectors, and a huge economic stimulus. These are areas where the Constitution gives the legislature the primary authority, and where political scientists predict that members of Congress will have the greatest incentive to send money back to home districts or to favor political supporters at the expense of the public interest.27 Obama would fulfill the role set out for him by the Framers by checking Congress's instinct to overregulate and hand out benefits to interest groups, rather than asking for stimulus bills and letting Congress fill in the details. The mode of his primary selection, however, will make it difficult for him to oppose the congressional leaders of his own party. That electoral system echoes failed models from the American past and threatens to sap the Presidency of its independence and authority by turning it into the handmaiden of Congress, instead of the choice of the American people.
Obama might be hampered by his origins as a member of Congress or his lack of executive experience. During the 2008 elections, John McCain accused Obama of lacking the maturity and experience to serve as President. The Obama-Biden campaign returned the same fire on Sarah Palin, who had been governor of Alaska for only two years and before that was mayor of tiny Wasilla, Alaska, and chair of the state oil and gas commission.
Because Obama's rise to the Presidency was truly meteoric, he avoided the legislative record that has doomed numerous presidential candidates from Bob Dole to John Kerry. Only three sitting Senators -- Warren Harding, Kennedy, and now Obama -- have ever been elected directly to the Presidency. In fact, Obama's lack of experience might have little impact on his success. Lincoln only won election to a single term in the House, and shot to fame by losing to Douglas in the 1858 Illinois Senate race. But that did not prevent him from becoming our greatest President. His predecessor, by contrast, had one of the most sterling resumes ever assembled by an occupant of the White House. James Buchanan had served as a member of the House for a decade, ambassador to Russia and Great Britain, a two-term Senator, and Secretary of State in the Polk administration.28Yet, scholars agree that Buchanan was the worst chief executive in American history because he did nothing to stop the South from leaving the Union.
History does not show any obvious link between experience and a President's effectiveness during times of crisis. Many of our worst performers in the office would have won the title of most qualified. James Madison wrote the first draft of the Constitution, coauthored The Federalist Papers, served in the House during the First Congress, cofounded the Jeffersonian party, and served as Secretary of State for two terms under Jefferson. He also allowed the nation to rush into an ill-advised war that saw Washington, D.C., conquered and burned and the nation itself almost dismembered.29 Franklin Pierce served in both the House and Senate before serving as President from 1853-57, but a rigorous survey of scholars ranked him 38th out of 40 Presidents.30 Andrew Johnson, who had been a member of the House and Senate, governor of Tennessee, and Vice President, came in at 37th for prompting impeachment by opposing Reconstruction.31 Millard Fillmore, who checks in right before Johnson, had been Vice President, a member of the House, and a New York official before his Presidency from 1850-53.32 The lack of correlation between experience and effectiveness is not merely a lesson from some far-off age in American history. Richard Nixon was one of our most qualified presidents, serving as Vice President and as a California Senator and Representative. He covered up Watergate, risked impeachment, and resigned from office.33
Extensive government experience does not bring any special ability to use presidential power to respond to crises. Herbert Hoover had been Secretary of Commerce and was known as the "Great Engineer" for his engineering company and his organization of the postwar relief effort in Europe.34 He could do little to end the Great Depression. Woodrow Wilson had been president of Princeton University, governor of New Jersey, and the finest American political scientist of his day.35 His failure over the Treaty of Versailles sparked a deep isolationism that ended only with the Japanese attack at Pearl Harbor.
Experience, no doubt, can help Presidents. Jefferson, Jackson, the two Roosevelts, and Eisenhower were prominent politicians, administrators, and soldiers before assuming the country's highest office. Jimmy Carter's inexperience -- he had served only one term as governor of Georgia -- left him unprepared for stagflation and the Iranian revolution. But experience is not a magic ingredient that can substitute for other important qualities. Electing candidates only because of their experience or charisma denies them a true mandate. A vote for ideology over experience produced the Reagan Revolution. Love him or hate him, Reagan's unerring commitment to a few simple principles -- free markets, low taxes, and aggressive anti-communism -- proved more critical to success than a long resume.
The Framers invented the Presidency to ensure that government possessed the "decision, activity, secrecy, and dispatch" to lead the nation through the unforeseen circumstances of emergency, crisis, and war.36 Judgment, character, and political principles, not how long he or she served on the Senate Foreign Relations Committee, will determine a President's success in acting swiftly and decisively. Congressional experience provides little preparation for executive office. The legislative mind-set favors discussion over decision, deliberation over speed, and consensus over determination. Most of our greatest Presidents spent little to no time in Congress. In fact, our best modern executives have defined themselves through their opposition to Congress, not their deference.
We can see these dynamics at work in Obama's initial policies on the war on terrorism, issues on which I worked during my service in the Bush administration. Obama has set his own course on controversial issues such as the detention, interrogation, and trial of terrorists, at first pleasing the base of the Democratic Party, but then tacking back toward Bush policies as he became aware, I believe, of the sec
urity challenges abroad.
During his first week as Commander-in-Chief, for example, President Barack Obama ordered the closure of detention facilities at Guantanamo Bay37 and terminated the CIA's special authority to question terrorists using tough interrogation methods that critics have claimed amount to torture.38 He suspended the military commissions that were in the middle of the trials of al Qaeda leaders for war crimes.39 His Department of Justice, led by Attorney General Eric Holder, decided it would no longer use the phrase "enemy combatant" to describe terrorists nor describe the struggle with al Qaeda as a "war."40 Obama released several secret Bush legal memos, some of which I worked on, regarding detention and interrogation policy, and went head-to-head on May 21, 2009, in dueling speeches with former Vice President Dick Cheney over whether the Bush administration policies on interrogation had proven effective.41
While these actions certainly pleased the left wing of the Democratic Party, they also threatened to handicap our intelligence agencies from preventing future terrorist attacks. In issuing these executive orders, Obama favored the law enforcement approach to fighting terrorism that prevailed before September 11, 2001. He also dried up the most valuable sources of intelligence on al Qaeda, which, according to former CIA Director Michael Hayden, has come largely out of the tough interrogation of high-level operatives.42
The question President Obama should have asked right after the inaugural parade was: "What will happen after we capture the next Khalid Sheikh Mohammed or Abu Zubaydah?" More careful review of terrorism policy would have made clear that the civilian law enforcement system cannot prevent terrorist attacks. What is needed are the tools to gain vital intelligence, which is why, under President Bush, the CIA could hold and interrogate high-value al Qaeda leaders. On the advice of his intelligence advisers, the President could authorize coercive interrogation methods like those used by Israel and Great Britain in their anti-terrorism campaigns. (He could even authorize waterboarding, which Bush did three times in the years after 9/11.)43
President Obama's stay of all military commission trials, and the transfer to the criminal justice system of the only al Qaeda operative held by the military on U.S. soil, might presage the shuttering of commissions entirely in favor of the exclusive use of U.S. civilian courts.44 Military commission trials have been used in most American wars, and their rules and procedures are designed to protect intelligence sources and methods from revelation in open court. Obama has ordered that al Qaeda leaders be protected from "outrages on personal dignity" and "humiliating and degrading treatment" in accordance with the Geneva Conventions.45 Obama might even be on the way to declaring terrorists to be equal to prisoners of war under the Geneva Conventions. The Bush administration classified terrorists -- well supported by legal and historical precedent -- like pirates: illegal combatants who do not fight on behalf of a nation and refuse to obey the laws of war.46
The CIA must now conduct interrogations according to the rules of the Army Field Manual, which prohibits coercive techniques, threats and promises, and the good-cop, bad-cop routines used in police stations throughout America.47 President Bush already banned torture or physical abuse in 2002,48 but President Obama's new order amounts to requiring -- on penalty of prosecution -- that CIA interrogators be polite. Coercive measures are unwisely banned with no exceptions, regardless of the danger confronting the country.
Eliminating the Bush system entirely will mean that we will get little timely information from captured al Qaeda terrorists. Every prisoner will have the right to a lawyer (which they will surely demand), the right to remain silent, and the right to a speedy trial.49 The first thing any lawyer will do is tell his clients to shut up. The KSMs or Abu Zubaydahs of the future will not respond to verbal questioning or trickery -- which is precisely why the Bush administration felt compelled to use more coercive measures in the first place. Our soldiers and agents in the field will have to run more risks to secure physical evidence at the point of capture and maintain a chain of custody that will stand up to the standards of a civilian court.
Relying on the civilian justice system not only robs us of the most effective intelligence tool to avert future attacks, it also provides an opportunity for our enemies to obtain intelligence on us. If terrorists are now to be treated as ordinary criminals, their defense lawyers will insist that the government produce in open court all U.S. intelligence on their clients along with the methods used by the CIA and NSA to get it. A defendant's constitutional right to demand the government's files often forces prosecutors to offer plea bargains to spies rather than risk disclosure of intelligence secrets. Zacarias Moussaoui, the only member of the September 11, 2001 cell arrested before the attack, turned his trial into a circus by making such demands. He was convicted after four years of pretrial wrangling only because he chose to plead guilty.50 Efforts to use the criminal justice system to try al Qaeda leaders will only lead to more of the same, but with far more valuable intelligence at stake.
It is naive to say, as Obama did in his inaugural speech, that we can "reject as false the choice between our safety and our ideals."51 That high-flying rhetoric means that we must give al Qaeda -- a hardened enemy committed to our destruction -- the same rights as garden-variety criminals at the cost of losing critical intelligence about real, future threats. All government policies involve tradeoffs between competing values. As Obama has matured in office and learned more about the nation's security environment, he has adopted policies that suggest more continuity with the past. Obama has so far decided against ending the NSA's electronic surveillance program, which allows the warrantless interception of suspected terrorist communications entering or leaving the country.52 The new administration not only kept in place, but even expanded, the use of unmanned aircraft to kill suspected al Qaeda leaders in civilian areas -- a far greater deprivation of civil liberties than detention, interrogation, and trial by the military.53 In May 2009, Obama reversed his decision to suspend military commissions, and even though he has proposed the transfer of enemy combatants from Guantanamo Bay to the United States, he also conceded that many will not be tried in civilian courts but will instead be detained as prisoners of war.54 None of these policies would be legal unless the United States were at war.
In this, Obama bears similarity not to FDR or even Lincoln, to whom the new President is sometimes compared, but Eisenhower. Ike was another President whose personal popularity outstripped the public support for his policies. The Eisenhower administration continued the basic strategy developed by his immediate predecessor, Harry Truman, to address the dire security challenge posed by the Cold War. Eisenhower initially campaigned on the ground that the strategy of containment resigned millions to communist dictatorship, and his future Secretary of State, John Foster Dulles, promised "rollback" of Soviet control of Eastern Europe.55 Once in office, however, Eisenhower kept in place the fundamental strategy of containment, though with a lower defense budget and without triggering an all-out war. As John Lewis Gaddis has shown, he changed the means from symmetric to asymmetric force, but he kept true to Truman's fundamental choice of containing the Soviet Union around its peripheries:56
Similarly, President Obama has come to have more in common with the ends of the Bush administration's terrorism policies than did Candidate Obama. It should be clear, further, that this would not be possible were it not for a broad view of presidential power. Obama has continued American occupation in Iraq and even increased deployment to Afghanistan, based on the view of his national security team -- not Congress -- that the battle against terrorism must be won there.57 Continuing the NSA's warrantless wiretapping power is primarily the product of the President's decision to carry out intelligence against an enemy. Extensive use of predator drones is a tactic carried out by the military pursuant to the President's Commander-in-Chief authority. Suspending military commissions, which had received congressional authorization in 2006, could only be done pursuant to the President's Article II powers under the Constitution.58 Even ord
ering the CIA to follow military rules in interrogating enemy combatants depends wholly on the President's authority to command the military and determine operational tactics and strategy. Congress itself refused to place the CIA under the rules of the Army Field Manual on interrogation.
It should be clear that regardless of any disagreement with these policies, the focus should remain on Obama's choices, not his constitutional power to adopt them. In making and implementing these terrorism policies, Obama has done nothing less than exercise many of the executive's broader powers in time of emergency of war. Counterterrorism policy also shows the effectiveness of Congress's powers. A signal element of Obama's plan is the decision to close the detention facilities at Guantanamo Bay and transfer the remaining prisoners to the U.S. prison system. Congress responded by requiring that no funds be used to allow any detainee from Guantanamo Bay to enter the United States.59
Obama's buildup in Afghanistan would be impossible without congressional funding for the new deployments, and his policies on targeted killings with Predator drones or NSA surveillance could not continue without Congress's financial support.60 Obama's effort to recharacterize the status of enemy combatants or to try them in civilian courts will be tested in the federal courts and may even reach the U.S. Supreme Court. Both branches have the ability to impede, if not totally obstruct, President Obama's policies against the leading external security threat of our day.
Obama may have made his decisions on terrorism too swiftly after his inauguration. He may have opened the door to further terrorist acts on U.S. soil by shattering some of the nation's most critical defenses. Obama may even be right in reversing some of the Bush measures, if the classified threat assessments today report that the chances of a terrorist attack have sharply declined. What remains important is that Obama has relied on his constitutional authority, just as had Bush, to make policy on everything from the number of troops in Afghanistan, to warrantless wiretapping, to use of Predator drones. If Obama wishes to guide the nation successfully through its period of economic crash and foreign threat, he must draw on the mainspring of presidential power as deeply as his greatest predecessors. So far, he shows early signs that he has learned this lesson well.