Wording Papers - Lists and Themes

[stables]

Here are some interim reports from the list and thematic working groups. We will also have more work from the agent group. I will post reports as they come in, but please share your feedback and contributions.

We will organize our agenda based on this work. We begin Saturday morning at 9:30 am.

[stables]

And here is some work about the current status of presidential powers after President Obama's speech last week. Many thanks to Patrick Waldinger for the big document. I added a few additional cards in the next item.

This work helps to remain confident in the direction of the topic wording work.

[lgarrett]

I am writing this without referring back to exactly what the topic paper said and in response to the list papers section on detention and use of the phrase "detain enemy combatants".

Making the detention part of the topic solely about enemy combatants is a bad idea. This is a distinction Obama ended in 2009 (http://www.reuters.com/article/2009/03/14/us-obama-security-combatant-idUSTRE52C59220090314). All of the relevant Court decisions relating to habeas corpus etc. determining the scope of presidential authority do not pivot around the enemy combatant distinction.

The enemy combatant distinction was controversial during the Bush years because it was a unilateral executive means to sidestep judicial review, civilian trials and due process.

I don't think limiting the ability to label someone an enemy combatant gets to the heart of detention policy which really hinges on whether a system of preventive detention should exist or not. There are plenty of ways to detain someone without labeling them an enemy combatant whether it be in a facility not under US control or because only minimal procedural habeas rights are extended now.

Here is an article making the argument enemy combatants doesn't mean much: http://www.alternet.org/story/131884/no_more_%27enemy_combatants%27_--_but_is_obama_merely_rebranding_bush%27s_%27war_on_terror%27?page=0%2C1

I think an optimal phrase would use preventive detention but I haven't looked into that relative to being a term of art etc.

[Dinger]

In light of Stephen Heidt’s recent memorandum and concerns that the list topics did not include broad troop cases specifically, I have revisited the issue with some potential resolutions that attempt to get to the heart of the “war powers” debate and do not blur the lines with the “Commander in Chief” debate.
 

I want to be clear that they are my opinions and do not necessarily reflect the opinions of the list group as a whole. This proposal is offered to supplement, not supplant earlier work.

 
Also, please, keep in mind that the terminology has not been vetted as much as the original and this is a working draft. I’m not even saying that this is the best of the lists, just an option to consider in light of the feedback on the list resolutions. Any comments/suggestions are welcome.

[jasonlrussell]

Not liking passive voice resolutions and not wanting them on the ballot should be two different questions. I strongly support having the option on the ballot. Individual programs can choose how to approach their votes accordingly. The reason an option should be on the ballot is because the topic committee should represent a comprehensive, not necessarily (in their opinions) accurate, vision of what the community might want to vote for. Clearly, there are programs who would very much like to vote for a passive voice topic. I share many of Jonah's reservations about passive voice, but wouldn't want the TC to make that choice.

I'd like to support an elegant topic option like "The USFG should substantially restrict presidential war powers (or commander-in-chief power)" that does not include a list or other modification whatsoever. A part of this is pure democratic momentum -- again, I believe a lot of schools are interested in voting for a simpler topic. A second reason is that I believe this topic avoids a tendency of the topic committee to "resolve" debates before they happen and micromanage the process of how they believe topics will evolve. This is a perspective, not a truism, so don't jump down my throat about it, but I am increasingly concerned that the TC has attempted to predict and resolve certain content-based debates prior to the year even starting and has used a precise topic wording to contain specific expected dilemmas regarding the content before the debaters even debate them. I personally believe these issues are often best left to debaters. We should be concerned that a topic might be "broken" and attempt to write a good topic to avoid certain anomalous issues, but overmanaging the content contains certain risks as well. We should consider strongly the flip-side of these choices.

J

[stables]

Kelly shared this and indicated we could post it. Many thanks!

Gordon

On May 29, 2013, at 11:58 PM, Kelly Young wrote:

Hello Mr. Wittes,

I have been following your Lawfare blog and a number of you and your colleagues articles in recent months and really enjoy your work.

I was wondering if you could assist me. I have recently worked on a project to craft a year-long college debate topic about restricting the war powers of the President. The topic will cover issues like UAVs, detention, covert ops, offensive cyber operations, etc. Schools around the country voted and this topic has been selected as our topic for the year. Over 200 schools will debate about this topic for the next school year.

We are currently working on how to properly phrase our debate resolution and we could use some assistance. If you don't mind, would you be able to briefly answering a couple of questions? This would help us tremendously as we move forward.

1. Is there a legal and functional difference between presidential war powers  and Commander-in-Chief powers? Some people claim that war powers are a subset of broader C-in-C powers, but the literature on the subject since the 9-11 attacks seems to discuss them in a conflated fashion. Is there an important difference and does this conflation matter in your opinion?


If there's a meaningful difference, I think the difference is the other way around--that is, the war powers include a somewhat broader array of powers than the Commander-in-Chief powers do. For example, the president has the authority to negotiate peace treaties (ending wars); this is not a function of commander in chief power but it is a war power. The president also has the authority to veto a declaration of war--as he does any piece of legislation. This is, again, not really a commander in chief authority (it doesn't involve commanding the armed forces), but it is clearly a power pertaining to war and peace. Perhaps most importantly, war powers arguably include those powers not specified in the Constitution but granted the President by Congress--for example, the power to wage war against Al Qaeda and the Taliban authorized by the AUMF.

I think the real difference is just that the phrase "war powers connotes all of the powers available to the president that pertain to the power to make war, while the phrase Commander in Chief powers refers to those powers to command the the military that flow directly from the Commander in Chief Clause of the Article II.

2. If there is a difference, would actions such as the authority to use UAV/drone strikes and detention/rendition fall under Commander-in-Chief or presidential war powers? Does warrant-less wiretapping falling within or both sets of powers?

The power to use force against the enemy and to detain the enemy involve chiefly the congressionally granted authority to use force under the AUMF. They also necessarily involves some degree of inherent presidential authority to command the military--though the Obama administration has downplayed this particular source of its power.

The warrantless wiretapping program is now also authorized by Congress (under the FAA). Before that statutory authorization, however, the administration claimed authority to do it under the AUMF. And before, it claimed the inherent Commander in Chief power to do it. So again, a mix of different sources of power.

3. If we make the claim, " we should increase restrictions on the war powers of the President of the United States," do you think that
 

This question appears to have been cut off.


Here are some examples of the resolutions being discussed if this helps contextualize my questions:

Resolved: the United States federal government should increase statutory restrictions on one or more of the following [Commander in Chief / presidential war powers] of the President of the United States: targeted killing attacks launched from unmanned aircraft systems; offensive cyber operations; warrantless domestic electronic surveillance; covert operations; or detention of enemy combatants.

 

I would use the more capacious phrase "war powers" in any of the following resolutions.


Resolved: the United States federal government should increase statutory restrictions on the [Commander in Chief / presidential war powers] of the President of the United States to: utilize targeted killing attacks launched from unmanned aircraft systems; conduct offensive cyber operations; engage in warrantless domestic electronic surveillance; conduct covert operations; detain enemy combatants; or introduce United States Armed Forces into hostilities.

 

Resolved: the United States federal government should increase statutory restrictions on the [Commander in Chief / presidential war powers] of the President of the United States to: utilize targeted killing attacks launched from unmanned aircraft systems; conduct offensive cyber operations; conduct covert operations; or introduce United States Armed Forces into hostilities.


Resolved: That the United States federal government should increase statutory restrictions on the war powers of the President of the United States.
 

Resolved: That the war powers of the President of the United States should be substantially restricted.

Resolved: That the United States federal government should statutorily restrict powers claimed by the President of the United States from The Authorization to Use Military Force.
 

Resolved: Powers claimed by the President of the United States from The Authorization to Use Military Force should be substantially restricted by statute.

Thank you for your assistance - we would greatly appreciate any help in making this a better educational experience for the hundreds of college students that would debate this topic.

Sincerely,

Kelly Young

Kelly M. Young, Ph.D.
Director of Forensics/
Associate Professor
Communication Department
Wayne State University
585 Manoogian Hall
Detroit, MI 48201
(313) 577-2953

[Dinger]

Domestic war powers by Mr. Min.

[Ermo]

Alternatives to substantially.

I cut these with an interest in how to make a passive voice topic match the lit base from the passive voice paper (which assumes widespread public opinion, not localized public opinion), so that the negative might retain access to "prez powers good" ground under such a topic.

They could be considered for other topics too, but they were cut with passive voice in mind. The words included effective, effectively, operative, and efficacious.

[William Mosley-Jensen]

Work on RQ1 - Statutory Restriction

Work on RQ2 - Targeted Killing

[stables]

Research Questions 5, 6,7 - Related to the AUMF - attached.

[Adri]

Research Question 1B - restrict v limit

[Dinger]

Hodgepodge. Enforcement & Definitions of War Powers

Enforcement of war powers by B. Manuel & I added some definitions of war powers

[richardmin]

RQ 4 - Supplement domestic law enforcement

[dheidt]

Authority definitions for topic committee from the old HS topic.

[richardmin]

Covert oversight