An important Lawfare-related sentence from last night’s SOTU address:
[I]n the months ahead, I will continue to engage with Congress to ensure not only that our targeting, detention, and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.
Before one gets too excited about the President’s commitment here, recall the President’s campaign pledges, as well as what he said almost four years ago, in his National Archives speech, about working with Congress on GTMO and detention, and on transparency:
[G]oing forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution. . . . I ran for President promising transparency, and I meant what I said. And that's why, whenever possible, my administration will make all information available to the American people so that they can make informed judgments and hold us accountable.
As the need for the President’s pledge last night makes plain, he didn’t keep these 2009 pledges. Should we expect something different this time? My guess is “not much different.”
On oversight for targeted killing, my guess is that the administration will oppose on constitutional and pragmatic grounds both ex ante FISC-type review and the possibility of ex post damages (both regimes nicely outlined here by Steve), and will instead seek to enhance the already-pretty-robust reporting and oversight arrangements with the intelligence committees, perhaps with a promise to disclose in secret all relevant legal opinions and to say more publicly about the nature of these oversight mechanisms as well as the internal executive branch review process.
As for a broader and sturdier congressional framework for the administration’s growing forms of secret war (not just targeted killing, but special forces activities around the globe, cyber attacks, modern forms of covert action, etc.) along the lines that I proposed last week, I also don't think much will happen. Friends and acquaintances in and around the Obama administration told me they would cherish such a new statutory framework, but argued that Congress is too political, and executive-congressional relations too poisonous, for anything like this to happen. There is some truth in this charge, although I sense that Congress is preparing to work more constructively on these issues. But even in the face of a very political and generally unsupportive Congress, Presidents tend to get what they want in national security when they make the case publicly and relentlessly. (Compare the Bush administration’s successful push for FISA reform in the summer of 2008, when the President’s approval ratings were below 30%, and Democrats controlled both houses of Congress; or FDR’s push in late 1940 and early 1941 – against popular and congressional opposition – to secure enactment of Lend-Lease legislation to help to British fend off the Nazis; or the recent FISA renewal legislation.) And of course the administration can never succeed if it doesn’t try hard. Not fighting the fight for national security legal reform is just another way of saying that the matter is not important enough to the administration to warrant a fight. The administration’s failure to date to make a sustained push before Congress on these issues reveals a preference for reliance on ever-more-tenuous old authorities and secret executive branch interpretations in areas ranging from drones to cyber, and an implicit judgment that the political and legal advantages that would flow from a national debate and refreshed and clarified authorities are simply not worth the effort. The administration might be right in this judgment, at least for itself in the short run. But the President has now pledged something different in his SOTU address. We will see if he follows through this time. Count me as skeptical, but hopeful that I am wrong.