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.
The first days of the Trump Administration have underscored the role that the judiciary could play in blocking the executive branch. It also highlights the importance of securing the appointment of a compliant set of jurists, particularly those who are committed to presidential supremacy.
The Gorsuch nomination demonstrates that the optimal judicial nominee is one who shares a key (mistaken) belief--namely, the view that the president's inherent power to interpret his constitutional responsibilities as he sees fit--has been tested under fire, while serving in the trenches with the executive branch's legal advisers. In the course of that service, those who find the Department of Justice's defences of indefinite arbitrary detention, torture, and extrajudicial assassination distasteful can be encouraged to find more lucrative work in private practice.
This winnowing process leaves behind a hardened cadre of true believers willing to work on a government salary within the Beltway in search of a great reward --of the type extended to now-Justice Alito and soon-to-be-Justice Gorsuch. Their prayers may soon be answered, as President Trump looks to fill a record number of vacancies in the federal judiciary. In doing so, he may follow and expand this well-trod path for the most loyal zealots.
While the executive branch now has firm control over the Supreme Court and the D.C. Circuit (which is of particular importance since virtually all cases brought against senior officials are under its purview), the federal courts scattered across the land are capable of damaging the executive's agenda. While their rulings are subject to being reversed, they can stall the agenda and score rhetorical blows, which are particularly damaging to an Administration struggling for momentum and credibility.
It is no coincidence that the first serious challenge to the Trump Administration's use of executive orders came from the Ninth Circuit, which has historically been controlled by the nation's most liberal jurists. Washington v. Trump shows the executive sees this as a problem to be addressed. Indeed, it has understood this for some time. The only defence of Trump's immigration orders comes in the form of a dissent from the Ninth Circuit's decision to decline en banc review of a panel's review of the decision to grant the temporary restraining order barring access to refugees and immigrants from seven specified countries. The author of this very infrequent sort of dissent (which sketched out an argument that the Supreme Court should reverse the Ninth Circuit's ruling) was Judge Jay Bybee.
Jay Bybee was the chief of the legal service for the executive branch --formally known as the Assistant Attorney General for the Office of Legal Counsel, Department of Justice (the "OLC"). In that capacity, he signed the "torture memos" that specifically authorized waterboarding, along with other forms of abuse that had been recognized to be war crimes by such authorities as the International Military Tribunal for the Far East. Contemporary observers (such as the general counsel of the US Navy) criticized the opinion for its "catastrophically poor legal reasoning" about the legality of torture, but the Bush Administration attempted to destroy all the legal memoranda that criticized Bybee's conclusions.
Bybee obtained his position at the head of the OLC after serving for five years in a sensitive position at the Office of Legal Policy of the Department of Justice and then spending ten years in academia. At the time of his appointment to the Ninth Circuit, Bybee was fifty years old, which put him in the position of being able to influence that court's jurisprudence for decades to come.
Bybee's appointment put his colleagues on the court in a difficult position. They were required to extend him professional courtesies even after a investigation by the Office of Professional Responsibility released a report concluding that Bybee had committed "professional misconduct" by writing the torture memos. They also were forced to adjudicate appeals of a lawsuit suing him and other officials brought by the victims of the torture he approved, which were decided while Bybee was the subject of a war crimes investigation in Spain. Bybee weathered all of these storms, and can now look forward to more of his colleagues from the Bush Administration's legal offices joining him on the bench, as they are the pool from which the Trump Administration's judicial nominees will be drawn.
A recent leak from the office of the White House Counsel revealed that Trump has turned his attention to filling what one NGO called the "alarmingly high number" of federal judicial vacancies. The nomination crisis created by the Republicans during the Obama Administration (exemplified by the unprecedented failure to consider the nomination of Judge Merrick Garland to the Supreme Court) had given Trump an unparalleled opportunity to reshape the federal courts in his own image. Reportedly, Trump is looking at young conservative law professors in their late 30s and early 40s, who likely served in the Bush Administration as well. In short, Bybee and Gorsuch's subordinates and accomplices to the executive branch's atrocities.
Soon these jurists will likely sit in judgment on challenges to the renewal of "war on terror" programs that closely resemble those that they crafted and defended. Even the temporary and rhetorical judicial rebukes to executive illegality will then cease. It is difficult to imagine how it will be challenged in that event; with the doors to the courthouses barred, they will likely take place in the streets, for better or for worse.
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.
The first rebuke to Trump's initial flurry of Executive Orders came from the courts, in the form of a Temporary Restraining Order suspending (inter alia) the U.S. Refugee Admissions Program, and a refusal to stay that Order. Many lawyers are cheered by these rulings --and rightly so. It's also important to understand their significance, so as to not lose sight of the real goals of a struggle to restrain a domineering presidency: We should be looking for deeds, not just words.
The denial a stay was a positive step, but it shouldn't be overstated as it is purely preliminary. There was already a call by one of the judges on the circuit for rehearing en banc, which signifies division on the 9th Circuit's bench about the decision. Also, in some form or another, the matter is headed to the Supreme Court (and for reasons I will explain in later posts, one shouldn't be sanguine about the chances of a 4-4 split among the Justices). Many challenges to the executive brought by the ACLU and other organizations were initially successful, but ultimately fruitless owing to later reversals. More often than not, they were stymied by the use of procedural evasions that courts use to avoid addressing the heart of the matter.
That said, many people forget the ultimate ruling, but remember the lofty language. In Washington v. Trump, the opinion includes a resounding defence of the rule of law. What rings false are the court's many citations to Boumediene v. Bush as a source for that principle. In Boumediene, The Supreme Court opined that the prisoners subjected to the horrors at Guantanamo were entitled to a reasonable opportunity to challenge their detention. The rhetorical rebuke to the executive yielded nothing, however. The D.C. Circuit gutted--and openly derided--the Supreme Court's instructions; the Supreme Court refused to end that defiance, or even to address it. Nevertheless, much attention was paid to Court's fine-sounding phrases about the constitution and very little was given to its failure to implement its plan to restore the bare minimum required by the rule of law. This leads many who opposed the assault on the constitution to a skewed view of the role the courts could and would play in defending it.
Trump's order asserted an unreviewable authority over immigration. It denied the courts any role in enforcing the constitutional rights of those affected by the misuse of that authority, even when they have well-defined rights (especially green card holders). In Boumediene and other war on terror cases, the Supreme Court refused to accept that diminished role. Unfortunately, the Court was often willing to limit the right to challenge the executive to the point that it became meaningless --as would be the case here if the courts are limited to examining whether the policy to bar refugees has no rational basis or is unsupported by any evidence. That of course is Trump's backup argument: if you won't let me have the final word in theory, at least let me have it in practice. The rule of law requires more.
Everyone remembers Brown v. Board of Education. Very few remember Brown II. When I clerked for the late Judge Robert L. Carter (an architect of Brown) he told me that his greatest disappointment was the inclusion of the phrase "all deliberate speed" in Brown II, which allowed cities to avoid desegregating their schools for years, and destroying the momentum of that phase of the civil rights movement. Lawyers must keep their eyes on the prize --court rulings that have real life effects, like United States v. Nixon. That ruling was possible because the presidency was under fire from all sides; the court was not required to play the leading role in the resistance.
Lawyers should celebrate the courts' rhetorical defence of the rule of law, but be alert to the possibility that this may not extend to real restraints on the executive's abuses. Guantanamo Bay is still open nine years after Boumediene; Bush was never impeached. Don't expect the courts to take the lead, but cheer them on when they rally.