Congress, not the courts, needs to play a more active role in shaping national security law, a former top U.S. Justice Department official said during a panel discussion about the Obama administration's authority to combat terrorism.
Participating on a Federalist Society discussion, Neal Katyal, the former acting Solicitor General, said he doesn't "understand why we do not have Congress be more involved in things like detention" of terror suspects.
“I feel horrible for judges on the D.C. district court and the circuit court who have done a great job without any standards except this vague statute authorizing force,” said Katyal, now an appellate litigation partner in the Washington office of Hogan Lovells.
Two judges on the U.S. Court of Appeals for the D.C. Circuit—Merrick Garland and Brett Kavanaugh—were in the audience for the discussion, held at the American Enterprise Institute in Northwest Washington.
The centerpiece of the discussion was the notion that the Obama administration has largely continued the national security policies of the George W. Bush presidency.
That’s the theme former DOJ official Jack Goldsmith explores in his latest book, “Power and Constraint: The Accountable Presidency After 9/11.”
Goldsmith, now a Harvard Law School professor, said yesterday that continuity in the national security bureaucracy and the responsibilities of the presidency have shaped the Obama administration’s counterterrorism efforts.
Two presidents with different outlooks about presidential authority, Goldsmith said, ended up at the same place.
“It’s very easy to give speeches and make policy prescriptions,” Goldsmith said. “But when you are the person responsible for the security of the entire nation you tend to look at the danger a little differently and look at the nature of your authorities a little differently."
Goldsmith said courts played a “remarkable” role in pushing back against presidential prerogatives, noting the U.S. Supreme Court decision in 2008 giving detainees the opportunity to use federal trial courts to challenge detention.
Katyal’s remarks focused on the argument that process matters—that is, how the Obama administration reached its conclusions about best practices to protect the national security differed from the Bush administration’s approach.
Katyal argued the Bush administration saw greater, more significant leaks about national security policy than what’s been seen under the Obama presidency. Katyal said “when the process is not followed”—when agencies and branches are “cut out”—there’s an increased likelihood for leaks when “people feel their voice isn’t heard.”
Responding to Katyal, Goldsmith said the story of the Obama administration’s continuation of Bush policies is not about process. “It’s a story about getting in there, having responsibility over national security, looking around and—lo and behold—it turns the legal authorities are much more robust than we thought because of what happened in the previous eight years.”
Goldsmith and Katyal, who were joined on the panel by Jeremy Rabkin, a George Mason University law professor, and Washington Post reporter Dana Priest, also examined the constitutionality of so-called targeted killings. Goldsmith called the killing of Americans a “hard issue.”
“Congress has clearly authorized force to be used against American citizens. Force clearly includes killing,” Goldsmith said. “The hard question is the constitutional question and the due process clause. The truth is it’s a completely novel question.”
The main precedent, Goldsmith said, is a federal trial court opinion that said the constitution gives the president and the Congress the power to decide the issue, not the courts. The ruling in December 2010 from U.S. District Judge John Bates in Washington shut down a suit brought on behalf of Anwar al-Awlaki.
The government alleged al-Awlaki, a U.S. citizen, was a key al-Qaeda operative living in Yemen. The suit in Washington federal district court was an attempt to thwart U.S. forces from targeting him.
Attorney General Eric Holder Jr. has refused to make available to the public any DOJ memo outlining the legal justification for killing Americans abroad who are suspected of participation in terrorist activity.
In a recent speech at Northwest University School of Law, Holder attempted to provide the legal framework underpinning the authority to target Americans. Holder said due process and judicial process are “not one and the same” in the nationa security context.
“The Constitution,” Holder said in the speech, “guarantees due process, not judicial process.”
Goldsmith predicted that targeted killing is the next Guantanamo—“the thing for which we are remembered in a bad way by future generations.
“There has begun, and there will be, more aggressive accountability campaigns against, as the groups call it, targeted killing,” he said.
Katyal, however, who worked for DOJ on the Awlaki case in federal district court, said he doesn’t expect targeted killing to be the Obama administration’s “next Gitmo.”
“I think that targeted killings look so much like war and so much less like military commissions and detention stuff which look a lot more like things that courts can get involved in,” Katyal said.
Katyal yesterday called it “preposterous” for a federal trial judge to tangle with the national security issues arising from a person’s inclusion on a kill list.
“I couldn’t imagine something less suited for a court to be involved than coming in and restraining a military strike against someone,” Katyal said.