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The Bergdahl Dispute Is A Constitutional Issue More than A Partisan One

The ongoing dispute regarding the Taliban-Sgt. Bowe Bergdahl prisoner exchange is not only, or even primarily, a partisan fight. It is a constitutional argument, but one that will be decided (if at all!) not by a legal process, but by a political one – just as the Framers intended.

In this earlier post, I argued that the motivation for President Obama’s decision to swap the five Taliban prisoners for Bergdahl’s release was probably not dissimilar to the reason why President Ronald Reagan agreed to trade arms for hostages: both were driven by humanitarian concerns for the safety of those in captivity, and for their families. Consistent with my claim, in his public statements since initially announcing the release of Sgt. Bowe Bergdahl, the President has continued to defend the decision in humanitarian terms, arguing that America does not leave its soldiers behind.  Some have questioned whether that credo is worth the cost, particularly when applied to a possible deserter. But even if one accepts the President’s explanation, critics maintain that the President was legally obligated to inform Congress before moving any Taliban out of Guantanamo Bay prison as part of the exchange. Many have dismissed this criticism, arguing that it is motivated purely by partisan politics. But even some Democratic legislators have argued that the President should have consulted with them before the prisoner swap took place. Indeed, members of his own administration, including Secretary of State Hillary Clinton and CIA director Leon Panetta were reportedly resisting the prisoner swap as discussed in an earlier incarnation. Clearly, the divide over the Bergdahl swap is not simply a partisan one.

Obama and his aides have responded to Congressional criticism by arguing that this was a time sensitive issue, and that they could not jeopardize Bergdahl’s safety by consulting with Congress – and presumably risk having the negotiations exposed through leaks – as the deal was imminent. In the words of national security adviser Susan Rice, “What we put the highest premium on was the safety of Sgt. Bergdahl. This was held closely within the administration. We could not take any risk with losing the opportunity to bring him back safely.” In another parallel to the Iran-contra affair,  Rice’s defense echoes the argument Lt. Colonel Oliver North made in his testimony before the joint congressional committee investigating the Iranian arms-for-hostage deal. When asked to defend the failure to consult with Congress regarding the Iranian arms swap and the funneling of residual funds to the Nicaraguan contras, North replied, “I think it is important… that we somehow arrive at some kind of understanding right here and now as to what a covert operation is. If we could [find] a way to … talk about covert operations to the American people without it getting into the hands of our adversaries, I’m sure we would do that. But we haven’t found the way to do it.” In further testimony North made it clear that he and his immediate supervisor, national security adviser Admiral John Poindexter, kept their dealings with Iran secret from Congress because they feared that once Congress was officially informed of the initiative, members would leak their knowledge to the public, thus undermining the effort to get hostages released.

Members of Congress did not react very favorably to North’s defense then, and they are not likely to buy Rice’s explanation today. As co-chair of the joint Congressional committee investigating the Iran affair, Representative Lee Hamilton pushed back against North’s defense of hiding covert operations from Congress, citing Congress’ need to exercise its constitutional oversight duties. In Hamilton’s words, directed to North: “You and I agree that covert actions pose very special problems for a democracy. It is, as you said, a dangerous world, and we must be able to conduct covert actions….But it is contrary to all that we know about democracy to have no checks and balances on them. We’ve established a lawful procedure to handle covert operations. It’s not perfect by any means, but it works reasonably well.” Hamilton went on to criticize North’s attitude toward Congress’ constitutional role: “I do not see how your attitude can be reconciled with the Constitution of the United States…The Constitution grants foreign policymaking powers to both the President and Congress and our foreign policy cannot succeed unless they work together.”

To be clear, as I said in my earlier post, the policy significance of the Bergdahl swap is likely not nearly as important as were the issues at the heart of the Iran-contra affair. But the current dispute centers on the very same constitutional debate regarding the relative roles of the President and Congress in foreign policy – a debate woven into the very fabric of the American political system of shared powers. How do we reconcile a president’s constitutional duty to act, as Alexander (not Lee) Hamilton put it in Federalist 70, with “secrecy, and dispatch” versus Congress’ right to hold the President accountable and to deliberate regarding his (someday her) actions?

At its heart, although the Bergdahl dispute is really an argument over the meaning of the Constitution, it cannot be resolved by efforts by constitutional scholars to parse the meaning of that document, or the meaning of laws based on it. Indeed, legal experts have already shown that they are hopelessly divided on the merits of the case. Rather, the dispute will play out in the court of public opinion, as mediated by partisans, pundits and the occasional political scientist. Already the early polling suggests that a strong plurality (43% to 34%) of the public believe the exchange was “the wrong thing to do”. Pointedly, however, more than 20% of those polled have no opinion on the affair, so opinions remain fluid.

My own view, as I expressed in my earlier post, is that Obama’s humanitarian concerns may have blinded him to the underlying constitutional and institutional objections regarding how the exchange was conducted, much as Reagan’s concern for the welfare of the hostages blinded him during the Iran-contra affair to the implications of negotiating with terrorists. But no matter how this latest brouhaha plays out, it will not resolve the fundamental Constitutional tension that lies at the root of these disputes. In the oft-quoted words of political scientist Edwin Corwin, the Constitution “is an invitation to struggle for the privilege of directing American foreign policy.” As we watch that struggle play out in the coming days and weeks, we should remind ourselves that this is precisely how the Framers expected these disputes to be resolved.

1:42 Update:  CBS released the results of a second poll on the Bergdahl controversy  and the results were similar to those of the USA poll I cited above: 45% disapproved of the transaction, compared to 37% who approved, but fully 18% of respondents expressed no opinion on the swap, suggesting that attitudes on the topic have not yet hardened.

The Boys of Pointe Du Hoc: What Obama Did Not Say In His D-Day Speech, and Why

As I watched President Obama’s very fine speech yesterday commemorating the 70th anniversary of the D-Day invasion, I couldn’t help but think back to what remains in my eyes the gold standard of D-Day remembrances: Ronald Reagan’s famous “Boys of Pointe Du Hoc” address. Reagan gave what is perhaps his best-known speech three decades ago on the 40th anniversary of D-Day, standing on a windswept point in front of the U.S. Ranger Monument at Pointe du Hoc on the Normandy beach, before an audience of D-Day veterans and dignitaries from the Allied nations. (You can read the entire address here.)  Reagan’s speech is perhaps best remembered for its description of the effort by 225 Rangers to scale 90-foot cliffs in order to secure a key promontory and knock out heavy guns that threatened the Allied landing. That portion of the speech culminates with these lines: “These are the boys of Pointe du Hoc. These are the men who took the cliffs. These are the champions who helped free a continent. These are the heroes who helped end a war.” The lines – indeed, the entire speech – were penned by Reagan speechwriter Peggy Noonan, and her description in her wonderful memoir What I Saw at the Revolution of trying to find the right words to capture the moment is well worth reading. (Not surprisingly, the best presidential memoirs are written by speechwriters – see, for example, Robert Sherwood’s Roosevelt and Hopkins, or Ted Sorensen’s Kennedy. But I digress.) Noonan struggled for days to capture the moment. She recalls that while pacing the halls looking for inspiration she ran into a Reagan advance man who told her they would like a speech “to be like the Gettysburg Address!” In describing the motivation for the “boys of Pointe du Hoc” lines, she writes, “This part was a little for the average viewer but mostly for kids watching TV at home in the kitchen for breakfast.” (Today, of course they would be watching their smartphone. But I digress.)

Beyond Noonan’s memorable lines, and Reagan’s superb delivery, however, what made the speech memorable was the context in which it was given. It is easy to forget that Reagan gave his speech at a time when the Cold War rivalry with the Soviet Union was in full throttle. Only a year earlier Reagan, in a speech to an evangelical group, had memorably described the U.S.S.R as the “evil empire”. Of course, Reagan had already committed the U.S. to a military buildup that would, in the end, contribute to the economic collapse of the Soviet empire, but would also set in place structural budget deficits that would dominate American politics for more than a decade. In writing the speech, Noonan sought to remind her audience what could be accomplished when the Allies worked together against a common foe. She did so at a time when there were deep fissures within our European allies regarding what many perceived to be Reagan’s uncompromising approach to dealing with the Soviet Union. The Pointe du Hoc speech resonated in part because it was Reagan’s effort to remind his audience of what was at stake in the Cold War struggle and the necessity of remaining unified in that struggle, just as they had done 40 years before. In Reagan’s (and Noonan’s) words: “We in America have learned bitter lessons from two World Wars: It is better to be here ready to protect the peace, than to take blind shelter across the sea, rushing to respond only after freedom is lost. We’ve learned that isolationism never was and never will be an acceptable response to tyrannical governments with an expansionist intent.

But we try always to be prepared for peace; prepared to deter aggression; prepared to negotiate the reduction of arms; and, yes, prepared to reach out again in the spirit of reconciliation. In truth, there is no reconciliation we would welcome more than a reconciliation with the Soviet Union, so, together, we can lessen the risks of war, now and forever…We look for some sign from the Soviet Union that they are willing to move forward, that they share our desire and love for peace, and that they will give up the ways of conquest. There must be a changing there that will allow us to turn our hope into action.

We will pray forever that some day that changing will come. But for now, particularly today, it is good and fitting to renew our commitment to each other, to our freedom, and to the alliance that protects it.”

Thirty years later, as President Obama delivered his own D-Day remembrance the Cold War is, thankfully, largely a distant memory. As a result, Obama’s speech is noteworthy almost as much for what he did not say as for what he did. In his speech the President repeatedly cited the valor of the men and women who served then, and who serve now, in our military, and urged us not to forget their sacrifices on our behalf. But beyond references to liberty in the abstract, there was no call to arms against a common foe, or mention of sacrifice for a specific purpose. It was instead a speech that honored individuals for their service, and urged us never to forget their sacrifice. It was a powerful speech, but one that served a different purpose, in a different time. And it is a reminder that what makes a speech memorable is not only what is said, and by whom – but when it is said.


Why the VA Scandal Really Occurred and What Can Be Done About It

The unfolding scandal at the Department of Veterans Affairs (VA) agency is a reminder about some enduring truths about government bureaucracies. The most important is that an agency’s operators – those responsible for carrying out its core task – respond most immediately to situational imperatives rather than the agency’s stated mission or purpose. This is particularly true when the agency’s stated goals are vague or open to interpretation. So it is with the VA. Its mission is to “fulfill President Lincoln’s promise ‘To care for him who shall have borne the battle, and for his widow, and his orphan’ by serving and honoring the men and women who are America’s veterans.” This mission statement has little meaning, however, to those VA operators responsible for scheduling medical appointments for veterans. Instead, the operators quite understandably defined their task in response to the performance standards on which they were evaluated, which in the case of the VA meant minimizing the wait time between when a veteran requested a medical appointment and when she received one. When it became clear to schedulers that the performance standards on which they were evaluated were increasingly unrealistic, given the VA’s burgeoning case load and the failure to ramp up resources to match that increase, schedulers quite rationally responded by making it appear that they were meeting those standards by, in effect, falsifying records. They did so in large part because of the politically sensitive nature of their task, which was to help people who in many cases had compromised their health in service of their country. This created additional pressure to make it appear that these veterans were being treated well, and it encouraged VA supervisors to be less than vigilant in insuring that performance measures were actually being met.

My point is that we should not be surprised by the VA operators’ behavior. Nor should we expect that the solution to the problem lies in hiring more “honest” schedulers, or in replacing the recently fired VA Secretary Eric Shinseki with a more competent executive. Operators, such as the VA schedulers, define their tasks in response to situational imperatives, and not the well-meaning directives of reformers. Calls for “clearer standards” or “more transparency” are unlikely to have much impact as long as there remains a disjunction between what schedulers are asked to do – and how they are evaluated – and what it is possible to do, given limited time and resources. Like most bureaucratic scandals, the fault lies less with the failing of individuals than it does in systemic factors that govern how those individuals behave within a particular bureaucratic context.

Similarly, it is easy to blame Shinseki for his failure to “manage” the VA, but the truth is that Shinseki was not hired by President Obama because of his working knowledge of the situational imperatives that dictate how VA schedulers do their jobs. Instead, he was appointed for his symbolic value as a former military officer who served two tours of duty in Vietnam and earned a Purple Heart. And, in truth, most government executives are not chosen for being “good managers”. Moreover, they are often rewarded for being associated with a good policy outcome, or blamed for a bad policy outcome (see Clinton and Benghazi!), about which they often have little influence. That means they have little incentive to actually manage the bureaucracy, and every incentive to appear to be in charge by cultivating relationships with those who count – particularly the President, Congress and any external constituency – in this case our nation’s veterans – that wields particularly strong influence over an agency.

The response to the VA scandal has been both predictable and largely uninformative. President Obama, expressing outrage, has fired Shinseki, thus satisfying media and veterans’ calls that someone be held accountable for this mess. Congress, which arguably is more responsible for the scandal than is Shinseki, has sprung into action with promises of reform coupled with criminal investigations. On Thursday our own Bernie Sanders, chairman of the Senate Veterans’ Affairs Committee, which has oversight of the VA, will chair Senate hearings on a bipartisan reform bill that seeks to reduce veterans’ wait times, give the VA secretary power to fire “incompetent” senior VA officials, and modernize the VA’s scheduling system. This type of “fire alarm” reaction typifies how Congress conducts bureaucratic oversight. Conservatives, meanwhile, argue that the VA scandal is a reminder of the pitfalls of government-run health care.

The truth behind the VA scandal, of course, is more mundane and thus far less newsworthy. Rather than criminal malfeasance or corruption at the individual level, the scandal illustrates how the public’s contradictory impulses, as expressed through our elected representative and those they hire, often set public sector bureaucracies up for systemic failure. In this case, the VA developed a system to increase agency efficiency by monitoring how quickly our veterans received medical help. However, a measurement designed to make the VA operators more accountable for their performance, and thus to encourage efficiency, largely failed to achieve its objective because it meant operators were assessed on quantitative standards that did not truly measure how well schedulers were serving veterans’ needs. Alas, this is not the first time we have seen good intentions go awry in this way. As James Q. Wilson observed in his magisterial work on bureaucracy, “the American political system is biased toward solving bureaucratic problems through rules.” This is partly because agency managers in our system have a strong incentive to force rules on operators in order to prevent a politically controversial outcome – not servicing veterans in a timely manner – from happening on their watch. But if the rule does not alter the incentives that operators’ value – such as getting good performance reviews and associated bonuses – it is not likely to achieve its desired outcome. If the VA is to be reformed, then, it will occur only by understanding what operators do, and why they do it, and devising performance measures accordingly. In the absence of that understanding, firing departmental heads and leveling criminal charges on hapless schedulers, although perhaps beneficial at the ballot box, is unlikely to correct what really ails the VA. Nor will it help our veterans.

“I Didn’t Close That”: When The Tweeterverse Speaks, The Media Listens – Too Closely

It is increasingly clear to me that the Twitterverse has made it more difficult for the traditional media to do its job, which is to cover campaigns accurately.  The ability of partisans to tweet in unison and almost instantaneously in response to almost any campaign event has made it almost impossible for the media to resist basing its initial story on what the Twitterverse considers to be “the truth”.  Instead, under pressure from partisan-driven tweets to write a story in real time, journalists feel compelled to report on news without often fully understanding its context or even, in some cases, getting the facts right.  If they do not report on the incident, reporters feel they may fall behind the twitter-driven news narrative and become irrelevant.

One example from Paul Ryan’s convention address last night illustrates my point.  Early in his speech, Ryan said this:

“When [Obama] talked about change, many people liked the sound of it, especially in Janesville, where we were about to lose a major factory.

A lot of guys I went to high school with worked at that GM plant. Right there at that plant, candidate Obama said: “I believe that if our government is there to support you … this plant will be here for another hundred years.” That’s what he said in 2008.

Well, as it turned out, that plant didn’t last another year. It is locked up and empty to this day. And that’s how it is in so many towns today, where the recovery that was promised is nowhere in sight.”

As Ryan said these words, almost immediately the twitterverse lit up, as Obama supporters pointed out that in fact GM had announced in June, 2008 – before Obama had won election – that it was closing the Janesville plant by the end of 2010. I don’t know who first tweeted this, but within 30 seconds it had ricocheted across the twitterverse, and within minutes was being repeated in live blogs covering Ryan’s speech. (Some tweeted that the plant closed in December of 2008 – again before Obama was even in office, although this also turned out to be incorrect. Maybe.)  Obama tweeters dared the media to do more than simply report on Ryan’s claims, but instead fact-check it (and, presumably, show that the claims were false.) Within a few hours, wire services were reporting on this and other factual errors in Ryan’s speech, and Politifact, one of the many “fact check” organizations that have sprung up to adjudicate these types of disputes, had ruled that Ryan’s claim was false. It noted that in fact, the plant had closed even before Obama took office. Meanwhile, the cable news talking heads were cornering Romney surrogates to ask them about Ryan’s false claims, and newspaper blogs, in a rush to catch up with the twitterverse narrative, were running similar stories.

Score one for the tweeterverse. The tweeters held the mainstream media’s feet to the fire and won, striking a blow for truth, justice and the American way.

Or not. Politifact’s ruling notwithstanding, Romney supporters are standing by Ryan’s claim as factually correct and instead are arguing that it is Obama who has some ‘splaining to do. How can this be?  As it turns out, even as the plant was in the process of closing, it kept on some workers, as Politifact acknowledged parenthetically: “(Several dozen workers stayed on another four months to finish an order of small- to medium-duty trucks for Isuzu Motors.)”  Indeed, as late as October, 2009 about half the Janesville GM workforce was still on the payroll, although production was shut down. In fact, it is in mothballs today, but not necessarily at the end of its productive life.

So was the Janesville plant closed, then, in December, 2008, or was it still open into the Obama administration? Is it even closed today? I suppose it depends on what the meaning of “is”, is.

Meanwhile, what of Obama’s “promise” to keep the plant open? Here’s what candidate Obama said in a February 2008 campaign stop at the Janesville plant: “And I believe that if our government is there to support you, and give you the assistance you need to re-tool and make this transition, that this plant will be here for another hundred years.  The question is not whether a clean energy economy is in our future, it’s where it will thrive.  I want it to thrive right here in the United States of America; right here in Wisconsin; and that’s the future I’ll fight for as your president.”

But there’s more: in October 2008 candidate Obama said this in response to news that the Janesville plant was slated to close: “Reports that the GM plant I visited in Janesville may shut down sooner than expected are a painful reminder of the tough economic times facing working families across this country…This news is also a reminder that Washington needs to finally live up to its promise to help our automakers compete in our global economy. As president, I will lead an effort to retool plants like the GM facility in Janesville so we can build the fuel-efficient cars of tomorrow and create good-paying jobs in Wisconsin and all across America.”

In Politifact’s judgment – one they are sticking by – Obama’s February statement is “a statement of belief that, with government help, the Janesville plant could remain open — but not a promise to keep it open.”  And in the October statement, Obama refers to plants “like” Janesville, but is not necessarily referring directly to the Janesville plant.

So is Politifact right? Was Ryan’s claim false, as the Twitterverse in its righteous indignation initially claimed? I will let you decide for yourself.  I hope you can see, however, that despite the initial Tweeterverse uproar, and Politifact’s subsequent ruling, reasonable people might disagree with the claim that Ryan’s statement is “false.”  (Note that this is only one example – Twitterverse heads began exploding again when Ryan criticized Obama for not heeding the recommendations of the Simpson-Bowles commission – recommendations that Ryan voted against.  As you might expect, Ryan supporters are standing by that statement as well.)

My broader point, however, is that this is no way to cover a campaign. I think the instant analysis offered by the partisan denizens of the Twitterverse are accentuating partisan division, and making it harder for journalists to discuss policy differences in a cool-headed manner. Based on these and other experiences during this campaign, I’m not convinced that journalists, when confronted with these types of twitter-driven firestorms, can always take the time to report stories accurately, in a way that does  justice to opposing viewpoints and that addresses the nuances and subtleties of policy debates. They are too afraid that the twitter-driven public narrative will pass them by.  In my view, this erodes the level of public discourse.

I’d develop this point in greater detail, but I don’t have time. Mitt Romney is speaking soon, and I need to tweet my instant, off-the-cuff but always pertinent and insightful responses.

I hope you aren’t paying attention.