PROTESTS AND WAR

Jack Balkin posts (no permalink) on David Greenberg's broad brush article in Slate to the effect that organized, public objections to war have been a staple of American political discourse.

Greenberg is attacking the claim made by some (especially but not exclusively on the right) that dissenters should shut up once the shooting starts. In addition to the reasons he cites, from the long-term benefits of peace and anti-war movements to the contribution of demonstrations to ending the war in Vietnam (and Greenberg claims that the demonstrators reflected, rather than produced, the troops' sense that war was futile and wrong), one point needs to be underlined very strongly, thus: There is no effective mechanism for controlling presidential power other than vocal, public dissent. Courts are not going to get involved in the process of challenging presidential power to use force unless Congress acts (see Doe v. Bush, Hamdi v. Rumsfeld and El Shifa Pharmaceuticals v. U.S., for example). Congress is not going to act unless there is strong public opposition to the president, because members of Congress respond primarily to public opinion. In addition, presidents are likely to be constrained primarily by public opinion, as Ruth Wedgwood noted with respect to the El Shifa Pharmaceutical strike:

The public critique of the Sudan decision provides a powerful incentive to be careful. It also presents the strongest political, as well as ethical argument, for careful decisions about proportionality. (Wedgwood, Responding to Terrorism: The Strikes Against bin Laden, 24 Yale J. Int'l L. 559, 573-574)

Public opinion is the only real check on presidential power, either because it creates conditions that should lead presidents to be cautious, or because members of congress primarily respond to public opinion. There may be an argument that this particular exercise of presidential power is a good thing (I'm not so sure), but once you enter that argument, you're entering the realm of substantive evaluation of policies rather than the propriety of public dissent itself.