Andrew Sprung/xpostfactoid observes lawfarist Jack Goldsmith’s disillusionment with the Obama Administration approach to counterterror policy, particularly the apparent presidential surrender before the incapacity of a Congress typified by the “fools, clowns and charlatans who interrogated Chuck Hagel ad infinitum on the extent of his fealty to Israel, or to those who seek to foreclose the possibility of any civilian trials for terror suspects.”
Since any new legal framework for conduct of the former “War on Terror” would require comprehensive collaboration with the legislative branch of government, being stuck with fools, clowns, and charlatans on one side, and with Commander-in-Chief powers and obligations on the other, produces a difficult predicament for a president who might otherwise agree with Sprung and Goldsmith. Sprung is not in a forgiving mood, however. He concludes his post with the following diagnosis:
[A]s Goldsmith suggests, the consequences of cutting Congress out of counterterror and military policy generally are likely worse than those of taking the heat for administration decisions and winning whatever degree of buy-in it can obtain. Passive aggression is not — as Obama said about the decidedly un-passive option of invoking the 14th Amendment in the debt ceiling wars — “a winning option.”
Or it could be, as we have frequently observed at this blog, that our mass liberal democratic order is inherently dysfunctional as liberal democracy in relation to 4th Generation Warfare: This type of warfare occurs, by design and necessity, at the very limits of the international order of rule-of-law states – that is, at the limits of civil law as we have known it or have thusfar, for whatever reasons logical or concrete, been able to elaborate it. This particular problem would be a residue or by-product of the same (world-)historical process realized as a nearly entirely dysfunctional passive aggressive national government care-taking the affairs of the passive aggressive polity that it passive-aggressively reflects, represents, and embodies, and that it is expected to preserve and to protect.
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When you can add Ben Emmerson’s ‘totally unhelpful’ contribution, which was made possible in part by the administration’s overuse of drones, as for Goldsmith. I generally try not to think of him much, as he had his conniption over Gitmo, some years back.