Still well inside his first 100 days, and with promised reconsiderations of how White House power is to be structured and used still understandably outstanding (if delivered on the short schedule promised, we should see them in a month or two), President Obama is regularly being accused from the Right of simply continuing his predecessor’s monarchist/czarist pretensions. The John Yoo’s among them should be celebrating the continuation of attitudes they so enthusiastically supported; but one must acknowledge that there were conservative as well as liberal critics of George Bush’s democracy-dangerous claims. The problem is that government like an oil tanker takes a good while to change course. For any given event the connection between the man at the helm and the rudder may be rather remote.
Bruce Fein’s recent Slate article, treats government lawyers’ arguments in two cases arguably involving American war crimes as if they had been personally made and submitted by the President himself. As one who was twice a government lawyer in a chain of command over litigation positions, I can testify that it does not happen that way. Communication up and down is slow and imperfect, habits die hard, and White House involvement is rarely if ever entailed. Treating the top guy as personally choosing everything that may happen is politically useful (Harry Truman’s “the buck stops here”) but it is also hazardous. Since like news content choices, what it teaches is that the negative overwhelms the positive, what it teaches is that tight control from the center is essential. Holding President Obama personally accountable for every government legal position that may be taken is a way of asserting that White House politics must control the details of all litigation. This is the road toward, not away from, a czarist regime.
The flack may serve to get the guy’s attention. But then it may also serve to further extend the tendrils of the White House in ways we should regret. Mr. Obama did not write, or personally endorse, those arguments, and Mr. Fein knows better than to write as if he did.
Getting the Guy’s Attention
By Peter StraussStill well inside his first 100 days, and with promised reconsiderations of how White House power is to be structured and used still understandably outstanding (if delivered on the short schedule promised, we should see them in a month or two), President Obama is regularly being accused from the Right of simply continuing his predecessor’s monarchist/czarist pretensions. The John Yoo’s among them should be celebrating the continuation of attitudes they so enthusiastically supported; but one must acknowledge that there were conservative as well as liberal critics of George Bush’s democracy-dangerous claims. The problem is that government like an oil tanker takes a good while to change course. For any given event the connection between the man at the helm and the rudder may be rather remote.
Bruce Fein’s recent Slate article, treats government lawyers’ arguments in two cases arguably involving American war crimes as if they had been personally made and submitted by the President himself. As one who was twice a government lawyer in a chain of command over litigation positions, I can testify that it does not happen that way. Communication up and down is slow and imperfect, habits die hard, and White House involvement is rarely if ever entailed. Treating the top guy as personally choosing everything that may happen is politically useful (Harry Truman’s “the buck stops here”) but it is also hazardous. Since like news content choices, what it teaches is that the negative overwhelms the positive, what it teaches is that tight control from the center is essential. Holding President Obama personally accountable for every government legal position that may be taken is a way of asserting that White House politics must control the details of all litigation. This is the road toward, not away from, a czarist regime.
The flack may serve to get the guy’s attention. But then it may also serve to further extend the tendrils of the White House in ways we should regret. Mr. Obama did not write, or personally endorse, those arguments, and Mr. Fein knows better than to write as if he did.
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