National Security Politics in the 114th Congress

Last September, I wrote a post exploring whether some of the congressional reactions to the Snowden disclosures might have been portents of a coming political realignment on national security issues–wherein Congress divided not between Democrats and Republicans, but between liberal Democrats and libertarian Republicans, on the one hand (described by Rep. Raul Labrador as the “Wing-Nut Coalition”), and moderates/centrists from both parties, on the other. Thus, whereas there is plenty to say about the consequences of yesterday’s results for the next two years of U.S. national security policy, my initial reaction was to hearken back to that post–and to wonder whether the sizable Republican gains in both the Senate and the House make this realignment more–or less–likely.

As I explain in the post that follows, my initial instinct is that the “wing-nuts” may very well have a lot to say about the course of some surveillance policies over the next two years, but that on almost every other national security issue worth its salt–from ISIS to closing Guantánamo (and all points in between)–the more likely result is some combination of business as usual (or not, as the case may be) and what I’ve elsewhere described as “libertarian hijacking,” where “libertarians form a short-term coalition with progressive Democrats on national security issues, only to pack up and basically go home once they have extracted concessions that don’t actually resolve the real issues.” Ultimately, whether one is a Democrat or a Republican, it’s hard to see how this Congress and this President will find common cause on almost any major issue of national security policy anytime soon–a result that may only put that much more pressure on the courts if and when disputes over national security policy reach them (e.g., Tuesday’s D.C. Circuit argument in one of the challenges to the NSA’s bulk telephone metadata program).

I.  Libertarian Republicans and the Realignment Thesis

Although the realignment thesis requires decent support from the wings of both parties, the consequences of yesterday’s results are to put the focus squarely on how libertarian Republicans approach national security policy–since theirs is the party in power in both chambers. With that in mind, consider Senator Ted Cruz’s fairly remarkable unwillingness to openly endorse Senator Mitch McConnell as majority leader. Whatever that portends with respect to the leadership race, it suggests at the very least that, on some issues, the more libertarian wing of the Republican party may not exactly fall into lockstep with the party’s more moderate elements. And while that was an intriguing enough phenomenon when Republicans only controlled the House, how that plays out when Republicans control both sides of the Capitol will be very interesting to watch.

On national security, specifically, the most obvious target is surveillance–albeit for two completely unrelated reasons: The first reason is substantive–if there is any policy issue in the national security sphere most likely to align liberals with libertarians, it’s domestic surveillance. After all, at least where U.S. citizens are concerned, excessive government surveillance implicates both liberal conceptions of privacy and libertarian conceptions of liberty. That’s why, as I wrote last September, I didn’t find it altogether surprising that the “Wing-Nut Coalition” came surprisingly close to derailing the bulk telephone records program in attempting to defund section 215 of the USA PATRIOT Act. The second reason why surveillance is the most obvious target is timing: Section 215 is set to expire early next year, meaning that Congress has to pass something on the subject between now and June 2015. Of course, one could argue that Congress also has an obligation to pass some kind of ISIS-specific force authorization, and a range of other statutes implicating national security, but the imperative for surveillance reform is logistical, not political.

At the same time, as I wrote in my initial post,

Even if all of this happens . . . , it could quite easily be a surveillance-specific result–in which the “wing nuts” succeed in pushing for greater reforms of the government’s surveillance powers than we might otherwise have expected, but then are unable to agree when confronted with other issues, such as life after the AUMF, military commissions after al Bahlul, and so on. After all, at the end of the day, liberals and libertarians will never see eye-to-eye on any number of national security-related policy questions–especially those in which citizenship, territoriality, and/or international law play a significant role.

And although ISIS wasn’t yet on our radar at the time, it seems equally unlikely that the “wing-nuts” will find common cause on how to appropriately authorize (and circumscribe) forward-looking uses of military force. Indeed, even on surveillance, although the wing-nuts may yet assert themselves in the context of section 215 reform (see, e.g., Patrick Eddington’s post from yesterday), one could argue that section 215 is the least significant surveillance authority in need of reform, especially in comparison to the FISA Amendments Act of 2008–which, contra Patrick’s post, isn’t currently set to expire until December 31, 2017.

In other words, a coalition of the left and right flanks may well materialize in the 114th Congress, and may end up having at least some sway over section 215 reform (and the fate of the USA FREEDOM Act), but it’s hard to see it playing a large role on other national security issues (even surveillance-related ones) given the fundamental differences between liberals and libertarians on questions of citizenship and territoriality, and the relevance (or not) of international law.

II.  The Perils of Libertarian Hijacking

Instead, what strikes me as far more likely in the 114th Congress, especially if there is an open rift between the libertarian and centrist elements of the Republican caucus, is what I worried about last March–that national security policy will become increasingly prone to “libertarian hijacking,” where the wings align just long enough to (1) shift the terms of public debate to a contrived non-issue (e.g., using drones to kill Americans sitting peacefully at U.S. cafes); (2) extract some kind of wholly gratuitous concession from the government (e.g., no targeted killings of Americans peacefully sitting at U.S. cafes); and then (3) proclaim victory and depart the field without actually addressing the far harder question of U.S. policy (e.g., under what circumstances should targeted killings of terrorism suspects located overseas be authorized?). This was the precise result of the contretemps over the FY2012 National Defense Authorization Act (all of the attention focused on whether the statute authorized detention of U.S. citizens within the United States); and the “Stand-with-Rand” filibuster of John Brennan’s nomination to be CIA Director (targeted killings at domestic cafes).

Given the increase in both real and perceived power that Republicans in general–and libertarians in particular–will likely claim in the 114th Congress, libertarian hijacking seems a distinct possibility on a host of national security issues. Indeed, it may end up happening with surveillance reform. After all, it is entirely possible that libertarians will see the USA FREEDOM Act as the sum total of the surveillance reform that was necessary in response to the Snowden disclosures; while liberals, although decrying its inadequacies, will take the view that some reform is better than no reform. In the process, Congress will then accomplish nothing when it comes to (1) reform of oversight surveillance; (2) reform of the FISA Amendments Act; or (3) any effort to circumscribe the scope of collection under Executive Order 12,333. Instead, “surveillance reform” will amount to relatively modest changes to arguably the least invasive of the government’s surveillance authorities. And on topics unrelated to surveillance, it’s hard to see any better outlook for meaningful progress (whatever that is), absent some fundamental shift in the relationship between congressional Republicans and the White House.

III.  The Rise of the Courts in National Security Policy?

So what happens if no legislative progress is made on national security issues over the next 26 months? Certainly, the answer will be issue-specific. But it seems at least plausible, if not likely, that the less movement there is from the political branches on, among other things, closing Guantánamo, scaling back the post-9/11 and 2002 Iraq use-of-force authorizations, reforming other controversial surveillance authorities, and so on, the more pressure that will place on courts to become more aggressive in their oversight of national security policy–not because they want to, but because they may not have a choice.

Consider, in this regard, Justice Kennedy’s curious observation at the end of his majority opinion in Boumediene:

Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.

Thus, the real question that I think yesterday’s results raise for national security policy in the 114th Congress is not what this “genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism” will look like, but rather whether the absence of such a debate (which seems increasingly likely) will indeed provoke courts to play the more aggressive role to which Justice Kennedy alluded. 

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About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).