In Beltway world, the Brookings Institution is a "liberal" think tank. When it comes to foreign policy and civil liberties, these are three of its most consequential contributions over the last several years: (1) the invasion and ongoing occupation of Iraq, in the form of Ken Pollack and Michael O'Hanlon (working in tandem, as usual, with the ultra-neoconservative American Enterprise Institute); (2) unquestioning devotion to Israel's right-wing policies, in the form of major funder Haim Saban ("I'm a one-issue guy and my issue is Israel . . . . On the issues of security and terrorism I am a total hawk"); and (3) indefinite, preventive detention with no charges or trial in the form Benjamin Wittes (with his close associate, Bush OLC lawyer Jack Goldsmith), who also serves at the right-wing Hoover Institution and writes for The Weekly Standard. Only in Washington would such a group be deemed anything other than extremist.
Such is the preening conceit of Brookings that they bequeath their website with an ".edu" suffix. That's because these are not mere political advocates. They are "scholars." Just ask them and they'll tell you that themselves (even if their backgrounds (.pdf) don't exactly support such lofty claims).
As part of his years-long advocacy for trial-free, indefinite preventive detention, Wittes spoke to The New York Times' William Glaberson this week and was quoted as follows:
Benjamin Wittes, a senior fellow at the Brookings Institution, said Mr. Obama’s proposal was contrary to the path his administration apparently hoped to take when he took office. But that was before he and his advisers had access to detailed information on the detainees, said Mr. Wittes, who in a book last year argued for an indefinite detention system.
"This is the guy who has sworn an oath to protect the country," he said, "and if you look at the question of how many people can you try and how many people are you terrified to release, you have to have some kind of detention authority."
I consider it a good thing that fear-driven people like Wittes (and Newt Gingrich: "I think people should be afraid") are now becoming more candid about how "terrified" they are and how that drives what they advocate, but still: shouldn't a Brookings Scholar and self-described expert in legal matters know what the presidential oath and the Constitution actually say? As this non-Brookings-sch0lar blogger immediately pointed out, Wittes' description of the presidential oath is blatantly false:
Yet another "public intellectual" is allowed to get away with mischaracterizing the responsibilities of the President of the United States. . . .
Barack Obama did not swear an oath to "protect the country." He swore an oath to protect the principles upon which the country was founded and the document in which those principles are enshrined:
"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
Considering that Wittes' assertion is central to the discussion of whether it is appropriate to dismantle our constitutional legal framework in the name of safety and security, one might expect the New York Times to provide a clarification. One might even expect the paper to engage Mr. Wittes in a discussion about the distinction between "protecting the country" and protecting the constitution. But the NYT does neither. It simply lets the false assertion stand as a statement of fact.
The claim that the President takes an oath to "defend the country" -- as though he's some sort of National Security Daddy-Monarch whose supreme, overriding duty is to Keep Us Safe -- is one of the most basic, common and destructive myths in our discourse. That was the warped mindset that lay at the heart of the Bush/Cheney/Addington/Yoo model of the presidency -- that everything, including limitations on presidential powers and the Constitution itself, is subordinated to the sole mandate that the President do everything possible -- whatever is necessary -- to Protect Us All.
This deceitful description of the Presidentíal oath -- just like the compulsion for civilians to refer to the President as "our Commander-in-Chief" even though he is no such thing to civilians -- reflects the modern fetishization of the President as Supreme Military Protector, who has few other duties that matter, if he has any, other than single-handedly protecting us from danger. Even our so-called "legal experts" now blatantly misquote the oath to which the Constitution requires the President to swear, all in order to justify even the most extreme powers, such as imprisoning people potentially for life with no trial and no charges (he swore to protect the country from dangers and so he must do whatever is necessary to accomplish that).
Actual legal scholar Sandy Levinson, writing at Balkinization yesterday, mocked Wittes' embarrassing though revealingly common error and explained its significance -- both in general and specifically for a system of preventive detention:
Perhaps Mr. Wittes is correct, in which case we should simply change the oath of office from the present "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States" to “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States and will always act in the best interests of the United States."
Perhaps Mr. Wittes (and many other people) believe this would change nothing, but some naive readers may believe that Presidents are actually confined by the Constitution on occasion and may have to come to the reluctant conclusion that what they believe is in the best interests of the country is actually beyond their constitutional authority. So adopting an updated constitutional oath would clear up any such confusion and make altogether clear that when we elect a President, we are indeed willing to give him/her basically dictatorial authority.
President Obama himself has noted, "In our constitutional system, prolonged detention should not be the decision of any one man." But, of course, it's actually quite misleading to believe that a "constitutional dictatorship" really must be reduced so completely to fiat rule. And, in addition, the President is much too busy to make the exquisite decisions person-by-person. So, as in all other aspects of the modern administrative state, we're really talking about the ability of the President to "delegate" such decision-making authority to a small group of men and women who will know, presumably, that they won't have to defend their decisions before anything that might be described as a traditional Article III court applying traditional legal standards.
In his speech last week, Obama himself adopted this distorted view of the Presidency, announcing: "my single most important responsibility as President is to keep the American people safe." That just isn't what the Constitution and the presidential oath say is the most important responsibility of the President. He's required, above all else, to "preserve, protect and defend the Constitution of the United States" (in other passages of his speech, Obama emphasized that he "took an oath to preserve, protect and defend the Constitution" and that "we must never -- ever -- turn our back on its enduring principles for expedience sake").
Many defenders of this distorted view of presidential responsibilities -- beginning with John Yoo -- point to the Commander-in-Chief provision of Article II as justification, but it was Antonin Scalia who best pointed out, in Hamdi v. Rumsfeld (in a dissenting opinion joined by Justice John Paul Stevens), that the Constitutional role of "Commander-in-Chief" is extremely limited and does not remotely override the prime duty of the President to defend the Constitution:
Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President's military authority would be "much inferior" to that of the British King:
"It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.
The President doesn't have some broad, vague duty to "protect Americans." The Constitution really couldn't be clearer about the President's primary responsibility: it's to preserve, protect and defend the Constitution. Sometimes, the duty actually assigned by the Constitution is consistent with the duty to Keep Us Safe, but many times, Constitutional imperatives are, by design, in conflict with the goal of maximum security.
It's just so basic to our entire system of government that some Constitutional guarantees will impede efforts to maximize public safety (barring the police from searching homes without probable cause might make it more difficult to apprehend a dangerous criminal; banning double jeopardy and self-incrimination, and guaranteeing the right to counsel, might make it more difficult to convict a dangerous criminal; the guarantee of due process, free speech and a free press can make war-fighting more difficult). But that's the central choice the Founders made: that there are more important values than maximizing safety. If they didn't think that way, they would never have risked fighting the most powerful military on earth -- all for some abstract political liberty. By itself, that choice reflects the view that there are more important goals then keeping us safe. Tyrannies might be the best guardians of national security (though it is highly dubious that indefinitely locking up Muslims with no trial and no charges will Keep Us Safe), but either way: the U.S. wasn't created to be a National Security State. That's why the Constitution imposes numerous limits on the government that conflict with maximization of safety, and it's why the President is required to swear to defend the Constitution, not do everything possible to Keep Us Safe.
Obviously, it's the prerogative of people like Benjamin Wittes, who disagree with the basic value system of the Constitution, to argue against it. But as Professor Levinson suggests, such individuals ought then to advocate changing the Constitution to reflect this Safety-Above-All-Else mentality. What they shouldn't have the prerogative to do is go to The New York Times and completely distort what the Constitution actually says about the President's prime responsibility and the oath he swears to uphold.