Why the Administration Needs to Get Congress on Board for Its Stealth War

By Jack Goldsmith
Thursday, March 7, 2013, 5:37 AM

There is a connection between Senator Paul’s filibuster and the need for a comprehensive renewal of presidential authorities for the administration’s stealth counterterrorism tactics (i.e., the cluster of tactics that include “covert action, Special Forces, drone surveillance and targeting, cyberattacks and other stealthy means deployed in many countries”).  Steve’s latest post helps draw the connection.

I agree with Steve that the Administration would be benefit from less secrecy about its drone program – I have said so many times, and I said so in my post.  I also don’t begrudge Senator Paul trying to make the administration open up more, though (as I said in my post) I think he should do so without grossly distorting the administration’s positions.  (The filibuster was premised on the demand that the administration acknowledge that it lacked the authority to target a non-combatant U.S. citizen in the United States – something that the Attorney General had done earlier in the day, albeit in his typically roundabout and unclear fashion.)

I disagree with Steve’s claim that we don’t know how the government conceives of its authority or the limits on it.  The administration has told us a lot about that – in speeches, papers, leaks, and more, though of course it could give us much more detail.  Steve correctly says we needn’t trust the government’s words.  But note that Steve’s proposed remedy is “a more comprehensive public defense by the Executive Branch.”  To which one can ask: Why should we trust the words of a more comprehensive public defense?  Public skepticism about the administration’s drone program has grown in step with its public defenses.

I think the administration made a big mistake in thinking that unilateral disclosures alone -- in speeches, white papers, controlled leaks to authors and journalists, and other “public defenses” -- would legitimate its policies.  The reason is precisely what Steve puts his finger on: Outsiders needn’t trust Executive branch representations, and over time they won’t trust its representations if that is all the information they have on a matter they care about, especially on an issue as fraught as executive authority to kill an American citizen.

This is where separations of powers can help.  One way to make the president’s secret actions and decisions and authorities legitimate and credible is to have an adversarial institution look at and pass on them.  GTMO detentions became more legitimate and less controversial after another branch of government, the judiciary, looked at them and largely agreed with the executive’s assessment.  I don’t  think judicial review is even conceivably available for most of our stealth war.  But congressional review is.  As I once wrote:

[A] different adversarial branch of government — Congress — can play an analogous role. The congressional intelligence and arms services committees know a lot about the president’s targeting policies, and have gone along with the president’s actions.  These committees could (without revealing sensitive information) do more to enhance the president’s credibility by stating publicly — and preferably in a bipartisan fashion — that they have monitored the president’s high-value targeting decisions and find them, and the facts and processes on which they are based, to be sound.

Having the intelligence committees publicly on board helps, but what the administration really needs now is to have Congress on board.  The only way to legitimate the administration’s stealth war tactics, and to stop the growing bipartisan sniping at and distrust of them (which will only grow and grow if not addressed), is to make Congress vote on them and get behind them.  The administration should ask for a comprehensive authorization for the tactics it is now deploying in the “war on terrorism.”  I know, this approach is risky; secrets can spill out; Congress might give too much or too little authority; and the administration will be tagged with the legacy of making war permanent.  There are plenty of excuses for not forging congressional approval, all of them premised on short-term thinking and a remarkable paucity of executive branch leadership.  At some point soon the pain of not engaging Congress will be greater than the pain of engaging Congress, and at that point the administration will wish it had gone to Congress sooner.