On Friday, April 7, 2017, President Trump ordered an air strike against the Syrian Government's Shayrat Air Base.
The Trump Administration claims that the attack was to punish the Syrian Government for using chemical weapons against civilians in Khan Shaykhun governate during the preceding week. However, it has not been established that the Syrian Government was responsible for the release of the cloud of toxic gas; the Organization for the Prohibition of Chemical Weapons had asked the international community to avoid taking actions that would prejudice its ongoing investigation.
Before the air strike, heads of government such as Canadian Prime Minister Trudeau spoke of the need for an investigation before any action. In his words: “There are continuing questions ... about who is responsible for these horrible attacks against civilians, and that's why I'm impressing on the UN Security Council to pass a strong resolution that allows the international community to determine first of all who was responsible for these attacks and how we will move forward.”
Trump was not inclined to wait for the facts to become clear. Shortly before the U.S.’s attack, Trump criticized President Obama for not bombing Syria without UN approval after the 2013 chemical weapons attack in Ghouta. Serious doubts remain about whether the Government was responsible, or whether this was an act of the so-called 'rebels', who are largely comprised of and led by members of al-Qaeda in Syria (which renamed itself Jabhat Fateh al-Sham in 2016), which have been armed quasi-covertly by the United States, and more openly by Saudi Arabia and the gulf states, with Turkish assistance.
Some of those who pointed the finger of blame towards these 'rebels' could not be brushed aside. Carla Del Ponte was serving at the time as a member of the Independent International Commission of Inquiry on the Syrian Arab Republic, having been appointed by the United Nations High Commissioner for Human Rights. Shortly after the Ghouta attack, she asserted that the 'rebels' had used chemical weapons. (Del Ponte is also an experienced war crimes investigator, having previously served as the Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia).
Western governments pushing for war on the basis of this flimsy pretext ran into resistance. When the Intelligence Services of the United Kingdom presented the case in 2013 that the Syrian Government was responsible, Parliament rejected it. As Peter Flatters noted, “[w]ith the Prime Minister claiming that intelligence findings were compelling enough to warrant action, the remarkable thing was Parliament’s response — namely that it did not believe him, or rather that it insisted on seeing the evidence for itself.”
It was evident in 2013 that Parliament learned its lesson after being presented with fraudulent evidence before the Iraq War. The “intelligence and the facts were fixed around the policy,” to use the words quoted in the Chilcot Commission's Report. (The Report concluded that Prime Minister Tony Blair had lied about Iraq possessing chemical weapons in order to justify the Iraq War to Parliament, just as Secretary of State Colin Powell & Ambassadors Samantha Power and Nikki Haley lied to the United Nations about Iraq and Syria's possession of chemical weapons.) Ultimately, President Obama recognized that the evidence about the Ghouta chemical attacks was insufficient for him to proceed against Syria without the cover a new ‘coalition’ after the Parliament of the United Kingdom declined to join it, as his Director of National Intelligence told him that the evidence wasn’t a “slam dunk”, a coded allusion to the fact that the evidence was even flimsier than that given to President Bush by his Director of Central Intelligence, George Tenet.
Trump is not one to fear damage to his reputation after being later proven wrong. His gamble appears to have paid off: despite proceeding without any evidence of the Syrian Government's responsibility, Trump is now basking in the adulation of the American foreign policy establishment. He has wiped all discussion of his alleged links to Russia from the headlines; today the country’s five most read newspapers have published eighteen opinion pieces –all in favour of Trump’s attack. The entire spectrum of political opinion is united in its praise: even Elizabeth Warren approved, arguing that the “Syrian regime must be held accountable” and agreeing that Trump had the power to conduct air strikes for sixty days before seeking authority from Congress. This was three days after she criticized Trump for “show[ing] contempt for our Constitution” by cooperating with Republican Senator’s amendments to the rules for calling a vote on a judicial nomination.
Warren was wrong on both counts. The Rules Clause of Article I of the Constitution states that: “Each House may determine the Rules of its Proceedings”, which allows the Senate to amend its voting rules. However, the War Powers Clause states that “The Congress shall have power . . . To declare War”. The International Committee of the Red Cross concluded that the air strike created a state of war between the United States and Syria: “Any military operation by a state on the territory of another without the consent of the other amounts to an international armed conflict.” According to Professor Amal Saad of the Université Libanaise, this means that under the Law of Armed Conflict, proportional attacks on the United States by Syria (or its ally, Russia) are authorized under the Article 51 of the UN Charter, while the United States is liable for any war crimes it commits, as its forces are unlawful combatants.
In short, Trump violated both domestic and international law in an incredibly reckless escalation of a serious and intractable conflict. What is even more shocking is that in launching the war (that Hilary Clinton and her foreign policy establishment wanted desperately), he has rehabilitated himself: politically connected pundits like Nicholas Christof and Fareed Zakaria all agree. When asked about this significance of the attack, Zakaria said that “I think Donald Trump became president of the United States. I think this was actually a big moment.” Peaceful coexistence with Russia was treason –-but when an undeclared state of war launched by an unlawful attack that exposes America to lawful counterattacks, well, that is patriotism.
Trump has demonstrated a remarkable capacity to learn how to manipulate the political establishment. They have just taught him that he has a get-out-of-jail-free card: he need only launch an attack against another small country and all will be forgiven. (Prime Minister Justin Trudeau fell into line immediately, with an embarrassing volte-face). However, this is a dangerous lesson to teach a political strongman with no respect for the existing political conventions. He might take it further than President Reagan or the Bushes and use the state of war as an opportunity to crush his political opponents and destroy any remaining limitations on his authority. Trump is just the man to do it; only time will tell whether he will seize the opportunity. Trump has the world's largest military and the largest nuclear arsenal at his disposal. It is terrifying to think that he is learning that the more he uses it, the more popular and powerful he becomes.
Guantánamo Bay has fewer detainees in the Trump Administration than it did during his predecessors’ tenure –at least, until such time as the President makes good on his promise to “load it up with some bad dudes”. Despite this, it has never been more sinister, or at least more Kafkaesque. Camp Justice, where the military commissions sit, is gearing up for more mockery.
The executive branch has worked hard to get to this stage, against significant resistance. In 2006, the Supreme Court ruled that Salim Hamdan’s trial by military commission could not proceed, owing in part to its failure to conform to the Geneva Conventions. Accordingly, if the Bush Administration had proceeded under the existing regime, it might have been guilty of war crimes. However, Congress stepped in twice to attempt to provide a legal basis for these tribunals, and President Obama signed the Military Commissions Act of 2009, which revived the charges against such detainees as Omar Khadr, a Canadian who had been arrested as a fifteen year old, brought to Afghanistan by his father.
Khadr was put on trial for his life under conditions that were repeatedly denounced by international observers: he was denied exculpatory evidence and access to the evidence against him (such as it was: the tribunal explicitly allowed the introduction of hearsay evidence and anonymous witnesses for the prosecution). A number of military officials were barred from participating after attempting to exercise undue command influence, and prosecution witnesses were withdrawn in order to keep details of the torture program secret, despite the fact that evidence obtained under “enhanced interrogation” is explicitly permitted.
After numerous failures of this sort, the Pentagon is determined to proceed against its most hated detainees, the same men that they subjected to the worst forms of torture, including mock execution, a month of confinement in a coffin-sized box, and sodomy. Unfortunately, it appears that this torture had destroyed these detainees’ minds: one of those alleged “masterminds” of terrorists attacks about to be tried was described as “the dumbest terrorist I ever met” by the CIA’s Director of Operations, while the FBI’s leading al-Qaeda specialist said another was “insane, certifiable, split personality.” Dr. Sondra Crosby described another high value detainee (Abd al Rashim al Nashiri) as having been “irreversibly damaged by torture that was unusually cruel and designed to break him”, while Abu Zubaydah, who lost an eye and suffered brain damage under torture, “cannot picture his mother’s face or recall his father’s name.”
Numerous American politicians have argued that prisoners cannot be released—even if they were factually innocent—because they have been radicalized by their treatment at GITMO; they hate America owing to being tortured by Americans. One Republican staffer said that “whether they were radicals before they got to Guantánamo or they were radicalized while they were there doesn’t really matter.” But there is substantial evidence that many detainees were not radicals when they got there. In addition to clear cases of mistaken identity (including Afghans who happened to have the same name as terrorism suspects) there were numerous teenagers and even children among the detained. Mohammed el Gharani was fourteen when he arrived at GITMO; Mohamed Jawad may have been as young as twelve at the time of his detention.
There is also no compelling evidence that innocent detainees nurse burning hatred towards their captors. Mohamedou Slahi endured the worst forms of torture during his fourteen year detention without charge; after his release he noted that “Anger is very painful in the heart. So why should I be angry? Why should I pay twice?” He and his lawyers told 60 Minutes that he “forgives” and he “loves Americans”, as many--including his dauntless lawyer--supported him for years. It is impossible to read The Guantanamo Diaries or see his smiling face and believe that he has become the racist caricature that sustains the belief that the detainees are too dangerous to release. The same is true of Omar Khadr, who demonstrated his moral superiority to his torturers in Guantanamo’s Child, a remarkably moving documentary film.
It is possible that the flood of sympathy towards Slahi, Khadr and others has motivated the Administration and the Pentagon to stage a travesty of justice involving prisoners it tortured past the point of madness. These are not only “show trials” in the sense of being designed to produce propaganda; they are also not true trials because they are heads-I-win-tails-you-lose propositions. The detainees will likely be executed if found guilty, but if found not guilty, they will not be released. This is the reason why they have been labelled “forever prisoners.”
In 2011, the Obama Administration transferred Khalid Sheikh Mohammed from the civilian justice system back to the GITMO military commissions. When the alleged mastermind of the 9/11 attacks was arrested in Pakistan, he was photographed wearing western clothing and a short mustache. When he appeared before the military commission in 2012, on his head he wore a shemagh wound like a turban and a white bisht worn like a hooded cloak. The commission later gave him the right to wear a camouflage vest. This, in combination with his flowing salt-and-pepper beard, created a striking similarity to the iconic depiction of Osama bin Laden. Kangaroo court convictions of detainees tortured into insanity because they resemble hate figures would be a new low for the United States. Brigadier General John G. Baker—chief defense counsel for the detainees facing military commissions, provided this apt analysis:
“Justice Jackson said in his opening argument at Nuremberg: ‘We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.’ Instead of respecting the Constitution and ensuring equal protection under the law, the U.S. Government is choosing to drink from a poisoned chalice.”
It appears that the poison is now spreading through the veins of the American body politic. When the symptoms manifest, they may prove lethal to its constitution.
Lawyers from the Department of Justice filed motions last week to prevent CIA Deputy Director Gina Haspel and other top officials from being forced to testify about the development of torture programs at Guantánamo Bay and various black sites.
The lawsuit brought by the next of kin of a man killed in a CIA secret prison and others who were tortured was brought against two military psychologists, James Earl Mitchell and James “Bruce” Jessen. This was compensation for developing a program described by the former acting General Counsel of the CIA as “sadistic and terrifying”, and which violated the laws of war and the Convention Against Torture.
Mitchell Jessen & Associates received $81 million to develop the program, which was reverse-engineered for the military’s Survival, Evasion, Resistance, and Escape training, where pilots and others learned to resist interrogation under torture, primarily in the forms administered by America’s enemies during the Cold War and the Second World War.
Any interrogation program developed from these techniques was certain to produce false confessions; numerous Americans--including Senator John McCain—said so. Conversely, in the early days of GITMO, FBI interrogators complained that every time they were successful in building rapport with detainees (a process that is critical to obtaining truthful confessions) “the military would step in” and derail that process.
Leaked memoranda confirmed that this was because Vice President Cheney and Secretary of Defense Donald Rumsfeld were determined to obtain confessions that implicated Iraq in the 9/11 attacks –which was entirely false. This justified the creation of an interrogation that annulled any possibility of true confessions, since they were swamped by the false confessions that detainees would constantly produce in attempts to stop the torture. It led to numerous wild goose chases that depleted the limited resources of the FBI.
Mohamedou Slahi, who was held for fourteen years at GITMO recently recounted on 60 Minutes that “they broke me. I told . . . the boss of my team, ‘You write anything and I sign it.” On that basis, Slahi confessed to a nonexistent plan to blow up the CN Tower in Toronto. This was so blatantly untrue that the man charged with prosecuting Slahi before a military tribunal chose instead to resign.
While Slahi was later released, “high-value” detainees who will never see the light of day were subjected to considerably worse treatment. Abu Zubayadah was subjected to waterboarding 83 times in a single month at black sites in Thailand supervised by Gina Haspel. This technique, which involves actual asphyxiation and not merely simulated drowning, was the basis for the prosecution of numerous Japanese war criminals tried by the American authorities after the Second World War. Zubaydah was later deemed not to have any useful intelligence.
President Bush used the outlandish confessions obtained by torture (including that an Al-Qaeda sleeper cell would detonate a nuclear bomb in Europe were Osama bin Laden to be captured) to justify the torture program that Mitchell and Jessen sold to the Pentagon. Their work was also essential to sustaining the drive for war that allowed the United States to justify the spending of trillions of dollars (the Iraq War alone cost $2.7 trillion, which is almost three million expenditures of a million dollars) and the loss of hundreds of thousands of lives.
The lawsuit brought against them is essential to ensuring that this will not happen again. Mitchell and Jessen have never served a day in prison, nor have they been forced to return the $81 million the Pentagon paid them. The CIA officials who provided the top-level oversight of torture were brought back into the Trump Administration. Haspel was also responsible for the destruction of evidence of the CIA torture program, an action condemned by the Senate Intelligence Committee.
In attempting to stop Haspel from being deposed in the lawsuit, the Trump Administration has asserted the State Secret Privilege. In effect, this is an admission that she possesses information that would put the national security of the United States at risk. Is this because she was appointed in order to revive a program designed to produce false confessions? Trump has floated the possibility of reviving torture programs, although he has yet to do so.
Trump’s appointment of Haspel to a position of great responsibility (which pleased hardliners on Syrian intervention, such as Clinton partisan and former Deputy CIA Director Michael Morell), which occurred even as her testimony was sought in the torture lawsuits, is the clearest indication yet of the possibility that the Trump Administration will continue the path of endless war on false premises in the Middle East, which led Bush to a quagmire (in Iraq) and Obama to create devastation (in Libya). Nothing would be more dangerous to the rule of law, and potentially more useful to the erection of a durable Perónist regime in the United States.
The Trump wiretapping controversy has drawn attention away from the fact that President Trump is now in control of the intelligence surveillance apparatus (or at least, he will be once Dan Coats and all his subordinates are confirmed by the Senate). Trump's concerns with warrantless wiretapping are not principled; he was merely troubled by the fact that before his election, he was the target. As he is on the record as being in favour of renewing the extensive and unaccountable surveillance regime, we should devote some attention to what this will likely entail.
This analysis was made easier by the release by WikiLeaks last week of their "Vault 7" archive of classified documents, which reveal the capabilities developed by the CIA for advanced electronic surveillance. Many headlines have been devoted to the "Weeping Angel" program, which allows for eavesdropping by turning on the microphones of 'smart' televisions, while giving the target the impression that the television is off.
This program particularly disturbing because it calls to mind the telescreens of Orwell's 1984, but it is not significantly different from what Edward Snowden revealed about the National Security Agency's ability to turn on webcams secretly. Vault 7 reveals much more troubling information. Applications that were formerly thought to allow for secure communication can all be bypassed with new techniques that allow access to the kernels of smartphones -- this means that the encryption built into WhatsApp and Whisper is beside the point. The new CIA programs allow them to insert keystroke loggers onto users' iPhones and Android 'phones (BlackBerrys were cracked in 2009), and then upload the record secretly. It also allows for surreptitious uploads of geolocation records and other personal data.
Vault 7 reveals the disturbing proliferation of these tools. The FBI has been given access to these applications suites, which could create issues in law enforcement that would dwarf those created by the use of Stingray 'phone trackers. Additionally, the CIA admits that hackers, presumably from other nations, manged to obtain copies of the code for many of these applications, creating an arms race between foreign intelligence services, and allowing for ever more sophisticated computer crime (this follows the theft of very sophisticated malware code from a front for the NSA's Tailored Access Operations (the Equation Group) by an organization known as "The Shadow Brokers."
As concerns have been raised about the possibility that American elections could be "hacked", it is worth noting that the CIA used these techniques to exactly that to foreign nations. Vault 7 reveals that in 2012, the CIA conducted a ten-month operation to secure highly sensitive information on the candidates in the French Presidential Election. This raised eyebrows in the press, particularly as some reporters have speculated that the UMBRAGE program could be used to suggest to the targets of these attacks that they had been committed by other country's intelligence agencies.
There are also indications that the CIA is developing sophisticated cyberwarfare weapons by refining the Shamoon 2 virus, which was used to devastating effect against oil and gas companies Saudi Aramco and RasGas in 2012. (The CIA is developing similar capabilities as the NSA, which recently attempted to use the Stuxnet virus to derail the North Korean nuclear program --it failed, leading to a significant risk of war). Additionally, the CIA was researching ways of hacking and taking over control of passenger vehicles, purportedly as a means of assassination. The risks associated with the proliferation of these programs is virtually unimaginable; the development of these cyberweapons is unspeakably irresponsible.
CIA documents also reveal that mass surveillance is only possible with the collusion of major corporations, who have repeatedly proven themselves willing to assist intelligence agencies in breaching their customers' privacy. Vault 7 reveals that this has hit new heights -- the CIA now consults with a group of tech companies before they decide to reveal their discoveries of major security weaknesses. This is done so to prevent CIA hacking operations from being interrupted. At the same time, consumers are encouraged to believe that state of the art anti-virus/malware software and encryption can keep their information private --something which these companies know to be false. Those conducting mass surveillance rely on that illusion of security.
Most disturbingly, the executive branch writes the rules governing this surveillance, and rewrite them whenever it is necessary to expand its scope. The legislative oversight mandated by the rule of law is nonexistent. When Congress attempted to investigate the CIA's torture program, the Agency hacked the computers of Senate Intelligence Committee, but the Department of Justice (an executive branch agency) decided not to prosecute its colleagues in the intelligence community, who report to the same president at the end of the day. When Congress accepted this, and also failed to pursue Director of National Intelligence James Clapper for lying about dragnet surveillance on Americans, it set the stage for all the abuses that followed. Unfortunately, the Trump Administration will likely set a new bar for horrifying abuses of this surveillance technology.
Last Friday Justice Ruth Bader Ginsburg gave an interview to BBC News in which she indicated her support for the press in its struggle against President Trump's unprecedented obstruction. She also communicated her feelings about his Administration (that it was not the "best times" because "[s]ome terrible things have happened.")
These remarks become less cryptic when read alongside the interview she gave to the New York Times in the summer before the election: "I can’t imagine what the country would be—with Donald Trump as our president . . . . For the court, it could be—I don’t even want to contemplate that.”She noted that should the unthinkable come to pass, her late husband would say "Now it's time for us to move to New Zealand."
These remarks come after Trump launched what had previously been a one-sided war of words with the judiciary (although the justices have not lacked defenders, such as the Deans of Harvard and Yale Law). As Trump attempts to torch the remains of the rule of law, Ginsburg's response prompts us to answer the question of whether it warrants fighting fire with fire, or with water.
To the BBC, Ginsburg referred to the press' role in Watergate. It might have been better to consider the judiciary's role. In United States v. Nixon, the Supreme Court ordered Nixon to comply with a court order that would give Congress the evidence it needed to proceed with impeachment. The court rejected Nixon's argument "that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment."
The Justices struggled mightily to craft a unanimous opinion, to avoid any suggestion that the decision was politically motivated. In the end, Justices with views as diverse as William Brennan, Warren Burger, and Thurgood Marshall signed off (thankfully, William Rehnquist was forced to recuse himself, as he had been Nixon's chief legal advisor) on the document that memorializes the court's finest hour.
It's been a long sixteen years since the Supreme Court's lowest ebb of the post-Watergate era -- the decision in Bush v. Gore, a nakedly partisan fiasco. Multiple justices (including the Chief Justice and Sandra Day O'Connor) should have recused themselves, as they had commented publicly that they wanted to retire in the near future --but only under a Republican president (both in fact were succeeded by the nominees of the president whose administration the Bush v. Gore decision secured). Justice Scalia's defence of his failure to recuse himself in Cheney v. United States District Court for the District of Columbia foreshadowed his incredible cynicism in granting the stay of the Florida Supreme Court's decision that stopped the counting of the ballots and set the stage for the Court to hand Bush the presidency.
It is impossible to overstate the damage to the judiciary--and to the rule of law--done by Bush v. Gore. According to Jeffrey Toobin, Justice Souter nearly retired in protest, as "He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues' actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore."
As Washington v. Trump wends it way to the Supreme Court, it is evident that the Court would be forced play a critical role in any process leading to impeachment. Like Nixon, however, Trump will attempt to fight a scorched-earth battle with any branch of government that opposes him. He has already indicated how he intends to sideline the judiciary: he plans to label them as nakedly political actors who cloak their ideological biases behind black robes.
It is unclear how Ginsburg's rhetorical support for the press might outweigh the possibility that she would be asked to recuse herself if Trump stands before the Court. What is worse, it is hard to imagine how her public comments could possibly overcome the damage that would be caused by Trump's arguments about the validity of the court's judgments if she does not recuse herself (not one to avoid a catastrophic constitutional crisis, he!)
The op-ed written by the Deans of Harvard and Yale Law defends the judiciary as an essential bulwark of the rule of law owing to its neutral and measured application of non-ideological principles. Ginsburg is clearly not signing from the same hymnbook, and the dissonance is jarring. If the Justices are not even capable of pretending that they are interested in the rule of law (rather than a rule that allows them to select the best man, as in Bush v. Gore), they may lose their audience.
Last week the Deans of the Harvard Law School and the Yale Law School wrote a "blistering" joint op-ed for the Boston Globe denouncing President Trump's recent statements about judicial opinions (including those in Washington v. Trump), which also criticized members of the judiciary. Speaking on behalf of the American legal academy, Deans Post and Minow characterized Trump's comments about "so-called judges" as threats to the democratic political order and American values. While the target of their attack is clear, what it defends is not obvious.
In the rousing conclusion of the op-ed, Post and Minow invoke the rule of law, around which they encourage the American people to rally. Despite according it the highest value, the Deans do not define the rule of law, although they appear to equate it with adherence to a legal order in which "official, publicly justified sanctions [are substituted] for animosity and enmity". It is also cast as the opposite of tyranny, a state of affairs in which a "so-called president" can presumably pursue vendettas without restriction.
Despite vague allusions to a whole range of American values, the deans' vision of the rule of law is surprisingly thin; it could just as easily be called legality, or legalism. It seems strange, however, to say that whatever a judge would opine should be above criticism merely because of their status as the guardians of the laws, as if the content of the laws does not matter. However, this empty formalism and "the legitimacy and authority of judges" may be all that the American legal profession has to defend.
Trump purported to suspend the entry of hundreds of thousands of immigrants and refugees. His full-throated cry for unfettered control received the response from the judiciary (and now the professioriate) that one would expect. However, President Obama made the same argument repeatedly, although more quietly and successfully. In Kiyemba v. Obama, twenty-two Uighur detainees--who had never been labelled enemy combatants--argued that they should be released from Guantanamo Bay. Despite being granted habeas corpus, the government's lawyers argued that no court had the power to admit them into the United States (as this belongs to the executive exclusively), even if this was done to bring the detainees into the presence of the court adjudicating their petitions.
When the Supreme Court refused to uphold the grant of the writ, it struck a dagger into the heart of the rule of law. It allowed the government to prevent courts from giving relief to those that the government detained illegally, even while it admitted they were factually innocent. The Deans of Harvard and Yale penned no op-eds about Kiyemba, just as they held their silence when a court upheld the targeted killing of an American citizen, wherein it concluded that while "[T]he plaintiff asks this court to . . . assess the merits of the President’s (alleged) decision to launch an attack on a foreign target . . . [that] happens to be a U.S. citizen, the same reasons against judicial resolution of the plaintiffs’ claims . . . apply with equal force."
For fifteen years, American courts used smooth language to justify handing unreviewable powers to the executive with no complaints from the nation's law deans. Now that Trump is asserting that he can use these powers as he pleases, they label his statements as a danger to the rule of law. Unfortunately, the op-ed presents Trump with ample opportunities for a counter-attack. The deans fail to understand that Trump attacks judicial decisions as politically biased, and driven by the political affiliations of the justices. In condemning Trump's order banning refugees from the country but not Obama's order barring Guantanamo detainees seeking justice, the Deans exemplify the legal profession's tolerance for executive power during the Obama administration. Trump's appeal is closely related to his disdain for elite hypocrisy: the deans should have been more careful not to provide him with an opportunity to deploy one of his favourite rhetorical weapons.
There are other indications that the theoretical basis for Minow's attack on Trump is not as solid as it should be, leaving them exposed to counter-attacks. They invoke the "political philosophy" of the Nazi jurist Carl Schmitt as a forerunner of the President's belligerent approach, while failing to note that within their own law schools numerous professors have--for decades--held up Schmitt's work as a persuasive rebuttal of classical arguments about the rule of law and the reality of a division between law and politics. It would bring a cynical smile to the face of anyone who studied jurisprudence in an elite American law school to see Schmitt being deployed as a bogeyman, as his work was routinely cited with approval by numerous leading legal scholars.
If the president's party (or ideology) defines his critics' stance on executive power and the parameters of the rule of law, then these Deans are right to throw their weight against criticism of the "authority and legitimacy of the judiciary", as its ethos serves as the last remaining justification for a role for the legal profession in the American state. However, one might hope that within the American legal academy there are still scholars who can demonstrate that one's defence of the constitutional order can be principled and consistent.
I submitted the manuscript for this book on Election Day, November 9, 2016. I had asked my publisher for an extension, as I wanted to write an afterword that would establish the continued relevance of what had occurred during the previous two administrations. I had a considerably more hectic day than had anticipated.
The task I had set for myself was to demonstrate that the precedents that were generated during the Bush and Obama Administrations for the boundaries of executive power (which I had demonstrated were largely consistent) would set the parameters for the new presidency. Little did I know that what I had warned about--handing expansive powers to a strongman with no commitment to the rule of law--was come about not in the distant future, but the immediate present.
Dick Cheney was asked (by a commentator with a misplaced sense of schadenfreude) about his legacy after President Obama's victory in 2008. He responded that he was proud that he left the presidency stronger than he had found it. (This had in fact been his goal since he served as Ford's Chief of Staff, decrying the post-Watergate restrictions on the executive).
Barack Obama could certainly have said the same, and would likely have done so with pride had Hilary Clinton secured the presidency. This is not merely because of his reliance on Executive Orders to push through social policy measures on issues like health care and immigration. He also developed and refined Bush-era policies of executive supremacy over "national security", as exemplified by David Barron and Martin Lederman's secret White Paper establishing the constitutionality of a drone strike on an American citizen.
Trump now has control of these extensive presidential powers. He can also rely on a number of precedents, which will put Congress in the courts in a difficult position if they seek to challenge them. Interesting times, as the curse says. I'll do my best to chronicle these in an illuminating manner here.