Bush, Obama and beyond: observations on the prospect of fact checking executive department threat claims before the use of force

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Date: Summer 2010
From: Constitutional Commentary(Vol. 26, Issue 3)
Publisher: Constitutional Commentary, Inc.
Document Type: Article
Length: 23,399 words
Lexile Measure: 1900L

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INTRODUCTION

Threats are scary. When they are real we should, of course, as a Nation address them, with force if necessary. When they are not, however, they should be exposed as what they are before the use of force. But, as the Iraq War experience demonstrates most recently, the fact checking that is essential to ensure the accuracy of executive department threat claims is not happening. Rather, a pattern has developed whereby Presidents persuade the Nation to consent to the use of force based upon threat claims for which they are effectively unaccountable until after the decision has been made. (1) Although presidents may legitimately advocate persuasively in support of their chosen policy, the Constitution identifies the people, through Congress, as the ones who must decide whether the president's choice is the right one. (2) That presidents can routinely make threat claims without contemporaneous accountability represents a failure of democracy in the use-of-force decision making and oversight process, since informed consent requires that the decision makers understand at least the basic facts upon which the President's proposed policy is based.

Part I sets out the experience of the last Administration's use of inflated threat claims to persuade the country to consent to the use of force in Iraq. Against this backdrop, Part II compares the current President's use of threat claims and the effectiveness of the mechanisms for fact checking his persuasive advocacy in support of the use of force in Afghanistan. Although the comparison must be imperfect, it supports the observation that, while different office holders may make different choices, the structures and incentives that have in the past allowed executive branch officials to assert unverified threats as certain and sufficient to justify the use of force have not changed significantly. While certain types of legal reforms could help to impose accountability on executive branch actors who make threat claims, they are both unlikely to be enacted or, if enacted, to be effectively enforced, at least in the short term. In response to this reality, Part III proposes that some progress toward the elusive goal of effective democratic use of force decision making can be achieved by approaching the problem of potentially inflated executive department threat claims from the other side of the communication exchange. Several key recognitions about the nature of use of force advocacy and the secret intelligence information that executive branch actors may offer to support it, and about the incentives of surrogates who can help interpret what that information means, can help shore up listener defenses to government speech, and specifically threat claims, and thereby bolster the contemporaneous accountability of use of force advocacy.

I. USE OF FORCE ADVOCACY, THREAT CLAIMS AND THE LACK OF CONTEMPORANEOUS ACCOUNTABILITY BEFORE THE IRAQ WAR

The Iraq War experience illustrates the government structures, incentives, and behaviors that now unite in "perfect storm" combination to lead to the result that executive branch actors can make threat claims in support of the use of force for which they are effectively unaccountable...

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Gale Document Number: GALE|A242453077