[Peace-discuss] Obama on war

[C. G. Estabrook]

[Just over three years ago, the excellent reporter Charlie Savage elicited the 
following answers from candidate Obama on the president's war making powers. He 
didn't think to ask him if e.g., the president could permit psychological 
torture of accused leakers- or order extra-judicial executions of American 
citizens. I wonder why not? Eheu, fugaces...]

Barack Obama's Q&A
By Charlie Savage
Globe Staff / December 20, 2007

1. Does the president have inherent powers under the Constitution to conduct 
surveillance for national security purposes without judicial warrants, 
regardless of federal statutes?

The Supreme Court has never held that the president has such powers. As 
president, I will follow existing law, and when it comes to U.S. citizens and 
residents, I will only authorize surveillance for national security purposes 
consistent with FISA and other federal statutes.

2. In what circumstances, if any, would the president have constitutional 
authority to bomb Iran without seeking a use-of-force authorization from 
Congress? (Specifically, what about the strategic bombing of suspected nuclear 
sites -- a situation that does not involve stopping an IMMINENT threat?)

The President does not have power under the Constitution to unilaterally 
authorize a military attack in a situation that does not involve stopping an 
actual or imminent threat to the nation.

As Commander-in-Chief, the President does have a duty to protect and defend the 
United States. In instances of self-defense, the President would be within his 
constitutional authority to act before advising Congress or seeking its consent. 
History has shown us time and again, however, that military action is most 
successful when it is authorized and supported by the Legislative branch. It is 
always preferable to have the informed consent of Congress prior to any military 
action.

As for the specific question about bombing suspected nuclear sites, I recently 
introduced S.J. Res. 23, which states in part that “any offensive military 
action taken by the United States against Iran must be explicitly authorized by 
Congress.” The recent NIE tells us that Iran in 2003 halted its effort to design 
a nuclear weapon. While this does not mean that Iran is no longer a threat to 
the United States or its allies, it does give us time to conduct aggressive and 
principled personal diplomacy aimed at preventing Iran from developing nuclear 
weapons.

3. Does the Constitution empower the president to disregard a congressional 
statute limiting the deployment of troops -- either by capping the number of 
troops that may be deployed to a particular country or by setting minimum 
home-stays between deployments? In other words, is that level of deployment 
management beyond the constitutional power of Congress to regulate?

No, the President does not have that power. To date, several Congresses have 
imposed limitations on the number of US troops deployed in a given situation. As 
President, I will not assert a constitutional authority to deploy troops in a 
manner contrary to an express limit imposed by Congress and adopted into law.

4. Under what circumstances, if any, would you sign a bill into law but also 
issue a signing statement reserving a constitutional right to bypass the law?

Signing statements have been used by presidents of both parties, dating back to 
Andrew Jackson. While it is legitimate for a president to issue a signing 
statement to clarify his understanding of ambiguous provisions of statutes and 
to explain his view of how he intends to faithfully execute the law, it is a 
clear abuse of power to use such statements as a license to evade laws that the 
president does not like or as an end-run around provisions designed to foster 
accountability.

I will not use signing statements to nullify or undermine congressional 
instructions as enacted into law. The problem with this administration is that 
it has attached signing statements to legislation in an effort to change the 
meaning of the legislation, to avoid enforcing certain provisions of the 
legislation that the President does not like, and to raise implausible or 
dubious constitutional objections to the legislation. The fact that President 
Bush has issued signing statements to challenge over 1100 laws – more than any 
president in history – is a clear abuse of this prerogative. No one doubts that 
it is appropriate to use signing statements to protect a president's 
constitutional prerogatives; unfortunately, the Bush Administration has gone 
much further than that.

5. Does the Constitution permit a president to detain US citizens without 
charges as unlawful enemy combatants?

No. I reject the Bush Administration's claim that the President has plenary 
authority under the Constitution to detain U.S. citizens without charges as 
unlawful enemy combatants.

6. Does executive privilege cover testimony or documents about decision-making 
within the executive branch not involving confidential advice communicated to 
the president himself?

With respect to the “core” of executive privilege, the Supreme Court has not 
resolved this question, and reasonable people have debated it. My view is that 
executive privilege generally depends on the involvement of the President and 
the White House.

7. If Congress defines a specific interrogation technique as prohibited under 
all circumstances, does the president's authority as commander in chief ever 
permit him to instruct his subordinates to employ that technique despite the 
statute?

No. The President is not above the law, and the Commander-in-Chief power does 
not entitle him to use techniques that Congress has specifically banned as 
torture. We must send a message to the world that America is a nation of laws, 
and a nation that stands against torture. As President I will abide by statutory 
prohibitions, and have the Army Field Manual govern interrogation techniques for 
all United States Government personnel and contractors.

8. Under what circumstances, if any, is the president, when operating overseas 
as commander-in-chief, free to disregard international human rights treaties 
that the US Senate has ratified?

It is illegal and unwise for the President to disregard international human 
rights treaties that have been ratified by the United States Senate, including 
and especially the Geneva Conventions. The Commander-in-Chief power does not 
allow the President to defy those treaties.

9. Do you agree or disagree with the statement made by former Attorney General 
Gonzales in January 2007 that nothing in the Constitution confers an affirmative 
right to habeas corpus, separate from any statutory habeas rights Congress might 
grant or take away?

Disagree strongly.

10. Is there any executive power the Bush administration has claimed or 
exercised that you think is unconstitutional? Anything you think is simply a bad 
idea?

First and foremost, I agree with the Supreme Court's several decisions rejecting 
the extreme arguments of the Bush Administration, most importantly in the Hamdi 
and Hamdan cases. I also reject the view, suggested in memoranda by the 
Department of Justice, that the President may do whatever he deems necessary to 
protect national security, and that he may torture people in defiance of 
congressional enactments. In my view, torture is unconstitutional, and certain 
enhanced interrogation techniques like “waterboarding” clearly constitute 
torture. And as noted, I reject the use of signing statements to make extreme 
and implausible claims of presidential authority.

Some further points:

The detention of American citizens, without access to counsel, fair procedure, 
or pursuant to judicial authorization, as enemy combatants is unconstitutional.

Warrantless surveillance of American citizens, in defiance of FISA, is unlawful 
and unconstitutional.

The violation of international treaties that have been ratified by the Senate, 
specifically the Geneva Conventions, was illegal (as the Supreme Court held) and 
a bad idea.

The creation of military commissions, without congressional authorization, was 
unlawful (as the Supreme Court held) and a bad idea.

I believe the Administration’s use of executive authority to over-classify 
information is a bad idea. We need to restore the balance between the 
necessarily secret and the necessity of openness in our democracy – which is why 
I have called for a National Declassification Center.

11. Who are your campaign's advisers for legal issues?

Laurence Tribe, Professor of Law, Harvard University

Cass Sunstein, Professor of Law, University of Chicago

Jeh C. Johnson, former General Counsel of Department of the Air Force (1998-2001)

Gregory Craig, former Assistant to the President and Special Counsel 
(1998-1999), former Director of Policy Planning for U.S. Department of State 
(1997-1998)

12. Do you think it is important for all would-be presidents to answer questions 
like these before voters decide which one to entrust with the powers of the 
presidency? What would you say about any rival candidate who refuses to answer 
such questions?

Yes, these are essential questions that all the candidates should answer. Any 
President takes an oath to, “preserve, protect and defend the Constitution of 
the United States." The American people need to know where we stand on these 
issues before they entrust us with this responsibility – particularly at a time 
when our laws, our traditions, and our Constitution have been repeatedly 
challenged by this Administration.

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