There Is Only One Way to Stop Obama from Setting Jihadists Free

By Andrew C. McCarthy

Saturday, January 17, 2015

You’re not going to like this.

Our commander-in-chief is recklessly releasing jihadists from Guantanamo Bay. The president’s Bush-deranged base is buoyed by the all-out effort to fulfill his vow to shut down the detention camp. But the vast majority of Americans remain opposed, and increasingly alarmed. The pace of releases has surged since November’s midterm elections, with over two-dozen detainees sprung — aiding the enemy even as the terror threat intensifies.

But if you want it stopped, the president has to be impeached.

Yes, yes, I know you don’t want to hear that. I have the scars to prove it. A few months back, Beltway Republicans got even more annoyed than Obama Democrats when my book, Faithless Execution: Building the Political Case for Obama’s Impeachment, was published. Contrary to what you’d infer from all the shrieking, I actually argued that it would be a big mistake to impeach President Obama absent strong public support for his removal. And as I conceded, that level of public support does not exist and never will exist unless a compelling political case for impeachment is made.

Republicans have less than no interest in making the case. Maybe that is as it should be, or maybe (as I fear) they are being shortsighted. But it is not cowardice. In fact, it probably tells us more about how the country has changed than about Republicans. The latter know that if they even mention the dread I-word, they will be demagogued as racists. They fear this will translate into being routed in elections.

That’s fair enough: Refraining from taking an unpopular position — calculating that one has no chance of swaying public opinion — is a perfectly rational, mature political decision. But what is neither rational nor mature is pretending that tough choices do not have serious downsides. They always do, even when the right choice is made. That is what makes them tough. As we’re seeing, the decision not to try building a political case for President Obama’s removal has extraordinarily serious downsides.

That’s why I wrote the book: Not so much to call for President Obama’s impeachment as to explain that, in the American constitutional system, impeachment is the only remedy for certain egregious abuses of power. If you foreswear impeachment under any circumstances, if you won’t even hold it out as a credible threat, then you are going to get egregious abuses of power. Indeed, the abuses are sure to become more egregious in the last two years of a radical administration: The president knows his time is short and he no longer has the incentive of elections — his own or those that determine his influence over Congress — to rein in his radicalism.

Presidents of the United States have enormous power, particularly over the conduct of war and foreign policy. These are areas where Congress’s competing power of the purse — the other major constitutional check on executive malfeasance — is often of limited value.

The Constitution makes the president commander-in-chief of the armed forces. Under longstanding American law, that makes the president supreme in the conduct of warfare, which very much includes the disposition of captured enemy combatants. Congress has the power to declare war and to fund, or cut off funding, for combat operations; but it has no authority to conduct the war — that’s the commander’s job. Congress is impotent to direct the president regarding what enemy combatants he may, or may not, release — just as it has no way of forcing the president to attack a particular target or apprehend a particular enemy operative.

Moreover, as chief executive, the president has near plenary authority over the conduct of foreign policy. Thomas Jefferson was as fearful of an imperial presidency as any of the Founders; yet he acknowledged, “The transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the senate. Exceptions are to be construed strictly.” John Marshall was a great rival of Jefferson’s, but on this point they were in sync: “The President is the sole organ of the nation in its external affairs, and its sole representative with foreign nations,” said Marshall. “The [executive] department is entrusted with the whole foreign intercourse of the nation.”

Jefferson’s strictly construed exceptions to the president’s foreign-affairs primacy will not help us halt the release of terrorists from Gitmo. This is not a treaty situation, so the Senate’s power to deny ratification of international agreements is irrelevant. And while Congress may deny funding for foolish executive initiatives — Republicans, for example, did not have to sign off on Obama’s provision of military aid to the Muslim Brotherhood government in Egypt (although they did) — the president does not need funding to release prisoners. Doing so actually saves money . . . at least until they blow something up.

Short of impeachment, there is really nothing Congress can do.

Republican senator Kelly Ayotte of New Hampshire is one of our country’s most serious thinkers on national security and the legal aspects of our war against jihadist terror. Duly horrified by the president’s unconscionable releases of anti-American jihadists from Gitmo, Senator Ayotte proposed legislation this week to prohibit the release of detainees who have been assessed as likely to return to terrorist activity (i.e., most of the remaining 122). She would also forbid transfers to countries such as Yemen that are al-Qaeda strongholds.

I wish it had a prayer of working. It doesn’t.

To be sure, Congress has the constitutional authority to continue barring the president from transferring Gitmo detainees into the United States. With the power of the purse it can deny funds needed for such a transfer; and with the power to establish the qualifications for legal presence by aliens in the United States, it can make such a transfer illegal. Mind you, as long as Republicans insist they will never, ever impeach Obama no matter what he does, I don’t see what would prevent the president from ignoring these legal restrictions, putting the terrorists on a plane, flying them into our country, dispersing them throughout the federal prison system, and daring Congress to do something about it. As past is prologue, I assume Congress would overlook such lawlessness, but at least there would be no doubt that it was lawless.

That is not the case with alien detainee transfers to foreign countries. Let’s suspend disbelief for a moment: Assume (a) Democrats do not block Senator Ayotte’s bill and (b) President Obama is somehow persuaded to sign it (because, say, it is attached to some other legislation he really wants). The president would be within his rightful authority to ignore the restrictions. He does not need funding from Congress to transfer alien detainees to other countries that are willing to arrange and pay for the transfer. And Congress has no power to direct which countries the president may negotiate with, which war prisoners qualify for admittance to those countries, and which war prisoners the commander-in-chief may release.

You don’t like that? Me neither. But the Constitution is not a matter of what we like. And I do know this: If we were fortunate enough today to have a President Ayotte instead of a President Obama, I would be objecting vigorously if Senator Elizabeth Warren were trying to exercise commander-in-chief powers under the guise of legislation.

That makes it sound as if our law has failed us, providing no recourse for a president’s material support to our terrorist enemies. But there is an obvious solution. We have just resolved not to consider it.

The Framers wrote impeachment into the Constitution because they saw it as a serious, credible, and necessary antidote to the abuse of presidential power. They adopted a trigger for impeachment that includes (a) treason, which the Constitution defines as, among other things, adhering to or aiding the enemy (Art. 3, sec. 3); and (b) “high crimes and misdemeanors,” a term of art that refers not to ordinary criminal violations but profound maladministration, dereliction of duty, and breach of the public trust.

It was inconceivable to the Framers that the nation would go to war without being serious about it. They would thus have assumed that a president who abetted the enemy — who replenished the enemy’s forces while the enemy was still targeting Americans for mass-murder attacks — would have negligible political support. If he’d committed such an inexcusable abuse of power once, out of naïveté, they would have assumed that the people’s representatives would at least threaten impeachment to discourage his doing it again. If he persisted in the abuse of power out of ideological conviction, they would have assumed that Congress would impeach and remove him from power.

The point is not whether we like or dislike the notion of impeaching a president. Every sensible person dislikes it. The point is that, the way our system is designed, impeachment is the only remedy for certain abuses of executive power.

The political decision to foreswear impeachment is an understandable one. It is a calculation that the damage from resorting to impeachment would be greater than the damage the president is doing to the country. Yet, regardless of whether that calculation is correct, the damage being done to the country is undeniable. And with Obama convinced that the calculation will not change no matter how much damage — or “fundamental transformation” — he does, the next two years will be very bleak.