Quick Thoughts: Lisa Hajjar on Executive Excess in the United States

New Article Submission

Thank you for your interest in Jadaliyya. We welcome all submissions. The most significant requirement is for Jadaliyya submissions to be analytically compelling and offer a perspective or argument that has not been covered at length either on Jadaliyya or elsewhere. Because of the volume of submissions, well-written pieces are prioritized. Length is flexible, 1000 to 2500 words is the average range. However, we will accept longer pieces. Once submitted, several members of the editorial committee will review your piece and one of them will inform you of the decision.
Author Details
Article Details
Select Countries
Select Keywords
Select Topics
Only RTF, Word, and Pages documents accepted.

Recommended image size: 762x800 px

Location of each image should be indicated in the text of the article via a square bracket caption that includes: (1) a description of the image; (2) the photographer/designer and source of the image. Please note we only use images you as the author have the right to use, which usually means those of your own creation or those published under Creative Commons. Alternatively, you need specific permission from the copyright holder.
Please read the Release Form and provide an electronic signature [your full name] below to confirm that you accept its terms
Required
Hyperlink words in your article if they refer to links on the internet. We encourage more, rather than less, links (try to avoid footnotes—embed them as hyperlinks if possible)

Article added successfully.

Pages Menu BETA
Jul 23, 2020 United States
George Floyd protests in Washington DC (31 May 2020). Image by Rosa Pineda via Wikimedia Commons. George Floyd protests in Washington DC (31 May 2020). Image by Rosa Pineda via Wikimedia Commons.

Quick Thoughts: Lisa Hajjar on Executive Excess in the United States

By : Lisa Hajjar

[In a highly unusual move considered illegal by many analysts, US President Donald Trump deployed federal forces to suppress demonstrations in Washington, DC, as well as Portland, Oregon. Insisting he possesses the authority to deploy such troops to any US city, critics have accused Trump of engaging in authoritarian behavior that exceeds his constitutional powers in order to divert attention from his catastrophic failures during the coronavirus pandemic and a faltering re-election campaign. Mouin Rabbani, editor of Quick Thoughts and Jadaliyya Co-Editor, interviewed Lisa Hajjar, Jadaliyya Co-Editor and Professor of Sociology at the University of California, Santa Barbara, to learn more about the historical and ideological context of the Trump administration’s executive excess.]

Mouin Rabbani (MR): The use of federal forces to suppress demonstrations in Washington, DC, and more recently Portland, Oregon, is seen by many as emblematic of the concentration of power by the White House, marginalizing Congress and transforming the Department of Justice into a tool that serves the personal agenda of the president. How is this different from previous campaigns such as COINTELPRO and the elimination of the Black Panther movement during the 1960s and 1970s, and why is it significant?

Lisa Hajjar (LH): President Donald Trump’s assertion of his executive authority to send heavily armed federal agents to US cities on the pretext that national security is imperiled exemplifies a particular view of presidential power. Although Trump is no theorist, he is advised by people, including Attorney General William Barr, who subscribe to the “unitary executive thesis”; they interpret Article 2 of the US Constitution, especially Section 2 (the commander-in-chief clause), as vesting the president with not just unitary but unilateral powers to control all executive branch agencies (i.e., the FBI, the Justice Department, the Department of Homeland Security, etc.), and the prerogative to make security policy decisions and issue executive orders as he sees fit. Furthermore, as the theory goes, any effort by Congress or courts to restrict the ways in which the president chooses to exercise this power would itself be unconstitutional.

What is happening now in Portland, Oregon, similar to what happened in Washington, DC, in June when Trump called in military units to break up demonstrations near the White House, is a case study of the unitary executive thesis in action. Trump is justifying his order to send federal agents into Portland and possibly to other “Democrat-controlled cities”—as though these were enemy territory—on the grounds that ongoing demonstrations against racism and police violence, and some graffiti and vandalism of federal buildings or statues (of historical racists), pose a “national security emergency.” This whole situation is obviously an effort by Trump to distract from the fact that his poll numbers are in freefall and growing sectors of the US public think his handling of the coronavirus pandemic has been an unmitigated disaster. What the current ludicrous and dangerous situation illustrates is that the unitary executive theory advances the position that the president can do whatever he wants because he is the president and because his office bestows this power upon him and him alone. 

In order to contextualize the contemporary manifestations of executive excess, let us take a trip down memory lane. The thesis of unitary executive power was conceived in the mid-1970s during the rise of the “new right.” Right-wing legal intellectuals wanted to expand—or in their view restore—the full powers and discretion of the presidency that had been clipped in the post-Watergate/post-Vietnam/post-COINTELPRO era when Congress imposed new checks, like the War Powers Act, and instituted stronger oversight mechanisms. 

At that time, Dick Cheney was a Republican member of Congress from Wyoming. He was adamantly opposed to the rollback of presidential power, especially in the realms of national security and foreign policy. Andrew McKay’s 2018 dark comedy biopic Vice dramatizes Cheney’s quest to figure out a way to reverse the rollback. In one telling scene, Cheney (played to perfection by Christian Bale) meets Antonin Scalia; this encounter is set in Scalia’s office sometime before President Ronald Reagan appointed him to the Supreme Court. When Scalia tells Cheney that the Constitution can be interpreted to allow the president to assert his powers without subjecting decisions to congressional approval or judicial oversight, Cheney’s normally emotionless face lights up.

In the 1980s, Reagan and his attorney general, Ed Meese, wanted to sidestep the Democratic-controlled Congress in order to do what they wanted at home (e.g., bar the Centers for Disease Control from issuing congressionally mandated information guidelines regarding HIV-AIDS) and abroad (overthrow the government of Nicaragua). In this witch’s brew, Cheney’s first opportunity to advance the unitary executive thesis occurred when Congress launched an investigation into the Iran-Contra scandal. The scandal was triggered by revelations that Reagan administration officials had defied the will of Congress by intervening in Nicaragua in support of a right-wing militia, the Contras, which were trying to overthrow the left-wing Sandinista government, and that they were funding this operation by channeling revenue from the clandestine sale of arms to the Islamic Republic of Iran to the Contras. The Iran-Contra investigative report was an indictment of executive malfeasance. Cheney authored a minority response protesting what he regarded as congressional overreach into the realms of national security and foreign affairs.

When Cheney served as President George H.W. Bush’s secretary of defense, he tried but failed to exclude Congress from having a say in the decision to wage the 1991 Gulf War. He got legal support for the view that the president has the unilateral power to decide whether to go to war from William Barr who was the head of the Justice Department’s Office of Legal Counsel. One of Barr’s other contributions to the unitary executive thesis during the administration of Bush Sr. was to author a legal memorandum on “the president’s snatch authority,” to provide legal justification for US rendition operations (i.e., abducting foreign suspects abroad and extralegally transferring them either to the United States, their home country, or a third country). 

When Cheney returned to Washington in 2000 as George W. Bush’s vice president, he made sure that top positions across the executive branch were filled by people who shared his enthusiasm for strengthening and insulating presidential power. They got their chance to put the unitary executive thesis into practice after September 11. Every aspect of the Bush administration’s “war on terror,” including the torture policy, forced disappearance, Guantanamo, CIA black sites, warrantless spying on citizens, and drone warfare was built with unitary executive thesis building blocks. Notice that I include drone warfare in this list. President Barack Obama inherited the “war on terror” and drone warfare became one of his signature modes of waging it. Thus, while the unitary executive thesis might have been cooked up by right-wingers, it has acquired a bipartisan complexion. Now Trump is playing with the blocks. 

MR: According to a recent article in Axios, the Trump Administration is “privately considering a controversial strategy to act without legal authority to enact new federal policies,” particularly with respect to immigration, and is relying on a recent opinion piece by John Yoo who, during the George W. Bush presidency, drafted legal opinions that promoted the use of torture, in order to do so. What is Yoo's argument, how might it be utilized by the White House, and what would the impact of such a strategy be? 

LH: Indeed, Yoo was appointed to the position of deputy assistant attorney general in the Bush administration’s OLC precisely because he was a proponent of the unitary executive thesis. (He held this position from 2001 to 2003.) He demonstrated his bona fides immediately after September 11. On 16 September 2001, Congress passed the Authorization for Use of Military Force (AUMF), which granted the president a territorially unbounded prerogative to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Echoing Barr’s 1991 advice to Bush Sr., Yoo immediately wrote an official memo for the president telling him that, while congressional approval might be nice, he didn’t need any legislative authorization to go to war where he wanted or do what he wanted. “Congress's support for the President's power suggests no limits on the Executive's judgment whether to use military force in response to the national emergency.”

Yoo is most infamous for authoring the 1 August 2002, memo that “legalized” torture. But he left unitary executive thesis fingerprints all over the place. At the start of the “war on terror,” he wrote a memo arguing that the Geneva Conventions do not apply in Afghanistan because it is a “failed state” (a concept that does not exist in international law). In late December 2001, when Guantanamo was selected as the main site for long-term interrogation and detention, he co-authored a memo pitching the claim that US courts have no jurisdiction over this offshore base and therefore detainees have no habeas corpus rights (the right to appear before a judge or court to determine whether or not detention is lawful). In early January 2002, he wrote another memo arguing that Geneva Convention protections are inapplicable to people whom the president has declared to be “unlawful enemy combatants” because he thought (incorrectly) that the Geneva Conventions only apply as a matter of reciprocity in conflicts with other states. 

When Yoo’s classified legal reasoning on these matters was exposed in 2004, it was resoundingly condemned by legal experts, bar associations, and human and civil rights advocates. But he was neither cowed by condemnation nor schooled in the errors of his ways. In many public events after his memo-writing cover was blown, he was called to task for arguing that the president has the right to authorize torture, but he stood firm in his view that the president can do whatever he deems appropriate and necessary. In a 2005 debate with Notre Dame University law professor Doug Cassell there was an exchange that was highly illustrative of Yoo’s unshakable thinking. Cassell asked, “If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?” Yoo replied, “No treaty.” Cassel pressed him on this position and Yoo replied, “I think it depends on why the President thinks he needs to do that.” 

What makes Yoo’s resurrection as a presidential advisor by Trump so alarming is that he is sanctioning and encouraging the unfettered exercise of executive power by someone whose legal deviancy will go down in history as unparalleled by even the worst former occupants of the White House. 

  • ALSO BY THIS AUTHOR

    • Can We Talk about Palestine? Laws and Crimes

      Can We Talk about Palestine? Laws and Crimes

      For better or worse, my expertise is what is legal in war. It may seem, for those of you who are unfamiliar with the laws of war, that it’s almost oxymoronic. Legal in war? But there is a thing called international humanitarian law. And “humanitarian” signals the centrality of protecting civilians in the context of any war. The things that constitute gross violations of IHL—or war crimes—include deliberately targeting civilians, deliberately targeting civilian infrastructure, excessive use of force, siege warfare, collective punishment, and forced displacement. All of these are war crimes, and we have seen all of these things happening. That is the reality of Gaza now. For 16 years, Gaza has been described as the world’s largest open-air prison, and now it can be described as the world’s largest crime scene. It is a crime scene.

    • Henry and Me: A Fauxbituary for Kissinger

      Henry and Me: A Fauxbituary for Kissinger

      Now that Henry Kissinger is dead, the time is ripe to reveal my personal relationship with him. In 1969 when I was eight years old and for several years thereafter, Kissinger was my role model. Why, you might wonder, would a child want to emulate Kissinger? My answer is a coming of age tale of political consciousness. 

    • Lisa Hajjar, The War in Court: Inside the Long Fight against Torture (New Texts Out Now)

      Lisa Hajjar, The War in Court: Inside the Long Fight against Torture (New Texts Out Now)

      The War in Court traces the fight against US torture in the context of the “war on terror” and the complicated legacy it has left. My long-running interest in torture grew out of my curiosity about the relationship between law and political conflict.
Sep 11, 2018 Lebanon
Lisa Hajjar By :
Lisa Hajjar

Quick Thoughts: Lisa Hajjar on US National Security Advisor John Bolton and the International Criminal Court

[On 10 September 2018 US National Security Advisor John Bolton gave an address at the conservative Federalist Society in Washington, DC, in which he denounced the International Criminal Court as “illegitimate” and announced measures the Trump administration will pursue to ensure it is unable to operate, particularly with respect to eventual prosecutions of US, Israeli, or other allied officials. Jadaliyya Co-Editor and Quick Thoughts series editor Mouin Rabbani interviewed Co-Editor Lisa Hajjarto get a better understanding of Bolton’s agenda and objectives. The Quick Thoughts series provides background, context, and detail to issues that are, or should be, currently in the news.]

Jadaliyya (J): What was the motivation behind US National Security Adviser John Bolton's latest speech regarding the International Criminal Court (ICC), and what specific measures did he announce?

Lisa Hajjar (LH): Bolton’s hyperbolic, hyper-sovereigntist speech was the perfect articulation of his hostile position on international law and multilateralism. He has been banging this drum since the 1990s when, following the end of the Cold War, international law enforcement for gross crimes—genocide, war crimes, crimes against humanity, and torture—became a possibility with the establishment of, first, UN ad hoc tribunals to prosecute individuals from the former Yugoslavia (1993) and Rwanda (1994), and then in 1998 the negotiations that led to the Rome Treaty establishing the ICC. That same year, former Chilean dictator Augusto Pinochet was arrested in London on a Spanish warrant that revitalized and revamped the moribund international criminal law doctrine of universal jurisdiction. The British House of Lords ruled, in 1999, that Pinochet was prosecutable and thus extraditable to Spain for the crime of torture (a fate he was able to avoid for political reasons). Bolton’s most recent address has a significantly greater resonance because he is ensconced in a top cabinet position within a US administration even more hostile to international law than any that has come before it.

Although Bolton’s speech, which he described as “a major announcement on US policy toward the . . . ICC,” was rife with inaccuracies about the court’s powers, operations, and jurisdiction, it was nevertheless highly polished and sophisticated; indeed it was a brilliant reflection of the “realist” ideological position on international law that prevails among right-wing thinkers in the United States like his host, the Federalist Society.
This hostility to international law and the post-Cold War development of enforcement mechanisms is rationalized by Bolton and like-minded realists such as Henry Kissinger as inimical to state sovereignty in general and 'constituted an assault on the constitutional rights of the American people and the sovereignty of the United States' in particular.

The ostensible and immediate motivation for Bolton’s speech originates in a 3 November 2017 request by ICC Chief Prosecutor Fatou Bensouda for authorization to commence an investigation into war crimes and crimes against humanity in Afghanistan that would focus on US military personnel and CIA operatives, as well as Taliban and Afghan officials. This investigation would include torture, ill-treatment, and CIA black sites. Bensouda’s preliminary investigation had been completed in November 2016 and found that the alleged crimes “were not the abuses of a few isolated individuals,” but rather were “part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees,” adding that there was “reason to believe” that crimes were “committed in the furtherance of a policy or policies . . . which would support US objectives in the conflict of Afghanistan.” Bensouda’s request may be authorized by the ICC’s pre-trial chamber in the coming days. Bolton acknowledges this: “Any day now, the ICC may announce the start of a formal investigation against these American patriots, who voluntarily went into harm's way to protect our nation, our homes, and our families in the wake of the 9/11 attacks.”

Had Bolton been in a policy leadership position to make this speech years ago, he would have. The essence of the speech, like his long-held views, is that international law is—or would be, if it were more effective—a stalking horse to constrain US behavior abroad, and any such legal constraint is anathema to realists. This hostility to international law and the post-Cold War development of enforcement mechanisms is rationalized by Bolton and like-minded realists such as Henry Kissinger as inimical to state sovereignty in general and “constituted an assault on the constitutional rights of the American people and the sovereignty of the United States” in particular. In this vein, Bolton describes the Rome Treaty as “fundamentally illegitimate”—despite the fact that the US government (during the Clinton administration) was an active participant in its negotiation.

Bolton offers a smooth blend of fear-mongering and “alternative facts” about the ICC: 

In no uncertain terms, the ICC was created as a free-wheeling global organization claiming jurisdiction over individuals without their consent . . . It claims "automatic jurisdiction," meaning that it can prosecute individuals even if their own governments have not recognized, signed, or ratified the treaty. Thus, American soldiers, politicians, civil servants, private citizens, and even all of you sitting in the room today, are purportedly subject to the court's prosecution should a party to the Rome Statute or the chief prosecutor suspect you of committing a crime within a state or territory that has joined the treaty . . . I ask everyone in the room today: would you consign the fate of American citizens to a committee of other nations, including Venezuela and the Democratic Republic of the Congo, and entities that are not even states, like the Palestinian Authority? You would not. I would not. And this Administration will not.

Bolton does not mention torture and forced disappearance, which are the crimes a prospective ICC investigation would pursue—crimes of which the US government is guilty and whose intellectual authors have remained entirely unaccountable. On this point, Bolton openly lies when he states that “the United States takes appropriate and swift action to hold perpetrators accountable.”

Rather, Bolton concentrates his harangue on “the crime of aggression.” This crime is, indeed, an element of the Rome Statute and is, as he notes, subject to wide ranging interpretation. However, he uses this straw man to make an ideological appeal by linking it to two issues that enjoy substantial consensus in the United States: the justness of the operation in which al-Qa’ida leader Osama bin Laden was killed, and the sovereign prerogative of Israel to use whatever force it deems necessary to protect its security and citizenry.

US governmental and bi-partisan political support for Israel provides the other main motivation for the Bolton speech and concurrent decision by the Trump administration to close the Palestine Liberation Office (PLO) in Washington. Bolton is exorcised that “the so-called ‘State of Palestine’” is a party to the ICC and may request an investigation into war crimes in Gaza and other Israeli violations of international humanitarian law. Bolton states: “If the court comes after us, Israel or other US allies, we will not sit quietly.”

Among the various policy positions Bolton lists as US responses to the “illegitimate” ICC, the most disquieting and absurd is this: 

We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the US financial system, and, we will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.

As Alex Whiting, an editor at Just Security, remarks: “The reality is that there appears to be no domestic legal authority take up the core of these measures, but such language demonstrates a willingness by this administration—which has shown a remarkable disregard in the past for law, institutions, and norms—to go very far in its efforts to break the court.”

J: What is the significance of the current US position regarding the ICC and how does it differ from the position of previous administrations?

LH: Over the last twenty-five years, there have been some variations within a more general and consistent posture of animus toward international criminal law. The Clinton administration endorsed the establishment of the UN ad hoc tribunals because their jurisdiction was specific to crimes committed in the former Yugoslavia and Rwanda, and therefore would not pose any threat to Americans. US representatives involved in negotiating the Rome Treaty insisted on the inclusion of certain measures, notably granting substantial discretion to the UN Security Council—where the United States enjoys veto power—that would minimize if not altogether prevent any prospect that someday an American might find him or herself in the ICC dock. In his last hours in office, President Bill Clinton signed the Rome Treaty but urged that it not be ratified by the Senate.

In May 2002, two months before the ICC came into existence, George W. Bush un-signed the treaty, a move which Bolton praises and claims some responsibility for. Over the following years, the Bush administration pressured dozens of countries to sign bilateral treaties in which foreign states pledged not to cooperate with the court or turn over an American to its jurisdiction, another move in which Bolton played a leading role. He states: “It remains one of my proudest achievements” and in his latest address announced that the Trump administration plans to revive and expand the pursuit of bilateral treaties to escalate the project of destroying the court. However, in 2005, the US position softened a bit when the government assented to the UN Security Council’s referral of Sudanese president Omar al-Bashir to the court for alleged atrocities in Darfur.

The Obama administration did not seek to undermine the ICC, like its predecessor, but did nothing to undo the un-signing. Therefore, Obama, like Bush and Clinton, helped pave the path for the Trump administration to assail the court and seek its destruction. As Bolton remarks: “We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC.” 

J: Should we see this as bluster and rhetoric, or do you expect it to have meaningful consequences for the functioning of the ICC?

LH: We should see this as both. Blustering rhetoric is the Trump administration’s modus operandi and an accurate reflection of its policy agenda. This will include exercising Security Council power to undermine the ICC, and pressuring or punishing foreign governments that cooperate with the court. In Bolton’s words, “we will remember that cooperation when setting US foreign assistance, military assistance, and intelligence sharing levels.” 

J: How do you expect the ICC and other states that continue to support the ICC to respond?

LH: Bolton’s speech was laced with snarky comments deriding the “self-styled ‘global governance’ advocates” and “ICC proponents” who support international law enforcement and accountability for gross crimes. These would include all governments within the European Union and all NATO members except Turkey, which are signatories to the ICC. However, given the multiple ways in which the Trump administration is laying waste to relations with allied governments and undermining international treaties of various sorts, countering US assaults on the ICC may be a low priority for its signatories.