Notes from Aspen 3

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David Kennedy and John Yoo, with Jeffrey Rosen moderating, discussed "The Presidency and the Constitution". It was brave of Yoo--a principal architect of the Bush administration's constitutional-law doctrines--to appear in front of an audience as hostile to the White House as the liberal Aspen crowd. He did well, partly I think through seeming like a normal, even likeable, human being, something few in the audience were prepared for. As one questioner put it towards the end (I'm paraphrasing), "You don't seem like Darth Vader at all."

There was a surprising measure of agreement, despite the fact that Kennedy and Yoo would give the Bush administration very different grades. They agreed that presidents have frequently pressed to extend their powers at times of national emergency--and that the presidents judged by history to be the greatest (Lincoln and FDR to name but two) have often taken the greatest liberties, so to speak, with the constitution. They also agreed that, much as Congress may complain about usurpation of its privileges, it has the means to check the administration if it wishes to. It could have stopped the Iraq war by cutting off funding, for instance, but did not. On the most contentious issues arising from the response to 9/11--military commissions, interrogation, surveillance--Congress eventually got around to giving the White House all, or nearly all, of what it wanted, despite earlier expressions of outrage. And this is nothing new. Historically, Kennedy and Yoo agreed, Congress has been all too willing to duck the issues and let the White House take the heat.

The crucial question--surfaced by Kennedy and underlined by a couple of astute questions from the audience--was whether a "state of national emergency" still exists in 2008 to justify these constitutional innovations, or indeed whether one existed at any time after 9/11. Neither gave a straightforward answer, but Kennedy appears to think no (not now anyway) whereas Yoo thinks yes (certainly then and maybe also now). But then, as Kennedy noted, there are degrees of emergency. Who gets to judge whether it is any kind of emergency, or a big enough emergency to justify extraordinary assertions of presidential power? And supposing the country has been in a state of war-like emergency since 9/11, is that now a permanent condition? Again, who decides? Yoo would say (I think) that the president de facto bears this responsibility--and if Congress disagrees they have the means, through the power of the purse, to reverse him.

A subsequent session gathered Admiral Gary Roughead, Robert Kagan, Robert Kaplan and Jim Steinberg (one of Obama's advisers), moderated by Kurt Campbell, to talk about national security "beyond Iraq". Most of the time was devoted to listing challenges and expressing concern about them: Russia, India, China, Iraq, Iran, climate change, competition over resources, etc. Steinberg, as you would expect, laid a heavy emphasis on the need for international co-operation; Kagan, as you would expect, said fine, but the geopolitics of conflicting interests is going to complicate things.

Elaborating on the role he saw for the UN going forward, Steinberg said that he did not want to see the UN completely dismissed, but that he favored greater recourse to "pragmatic" (that Obama word) co-operation, through agreements such as the Proliferation Security Initiative. As I was still jotting that down that indication of the UN's prospects under Obama, Kagan jumped on the remark, saying that Europeans would be horrified that the strongest statement of support for the UN on the panel was that it should not be completely dismissed. Yes indeed. Much as internationalist Americans and Atlanticist Europeans look forward to doing business post-Bush, they have rather different ideas about what co-operation means.

Robert Kaplan, having earlier given a quick and masterly survey of Asian geopolitics, answered a question from the audience with a warning about Russia. What did it want, he said, in return for supporting America over Iran? The answer was Georgia, and other states in Russia's neighbourhood: it wanted America to leave it alone in its near-abroad. Kurt Campbell, closing the session, quipped that at first he thought Kaplan had meant the other Georgia, and his instant reaction was, "It's a red state, let them have it." An Aspen kind of joke. You see what I mean about Yoo being brave.

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