Nancy Kassop

Bio: Nancy Kassop is an academic researcher from State University of New York at New Paltz. The author has contributed to research in topics: Presidential system & Politics. The author has an hindex of 5, co-authored 14 publications receiving 62 citations. Previous affiliations of Nancy Kassop include State University of New York System.

The War Power and Its Limits

Abstract: On March 20, 2003, the day after President George W. Bush initiated the war against Iraq, the following exchange occurred between a reporter and White House Press Secretary Ari Fleischer: "QUESTIONER: Could you amplify a little bit on how the president is mobilizing the powers of his office for war? MR. FLEISCHER: I think if you were to put that question to the president, what he would tell you is, unfortunately, since September the llth of 2001, this has been a wartime presidency. The fact of the matter is that ... the war on terrorism began September 11th, with the attack on our country. And then the president has, unfortunately, been in the position of authorizing the use of force to protect our country in the actions against the Taliban and the al Qaeda. This (the war against Iraq) is a continuation in many ways of that effort, because at its core, the president's concern is protecting the American people from the Iraqi regime's possession of biological or chemical weapons, which they could pass on to terrorists, who, if they could, would use them against us in our country.... So, that is the president's approach to this" (Fleischer, 2003). Fleischer's description of President George W. Bush's approach to the war on terrorism is deadly accurate. In the past two years, the president has never tired of noting how his worldview changed after the terrorist attacks of September 1lth, and how that event galvanized his will in a single-minded and dramatic way. It prompted him to focus his presidency on the urgent and unparalleled need to protect the physical integrity of the nation from any future attacks. By characterizing the September 2001 attacks as "acts of war," where war had been declared upon the U.S. by Al Qaeda terrorists, he termed himself a "wartime president," and looked to the authority that flows to presidents during such periods (Von Drehle 2003, A22). In defining that war as a "continuing threat," he set in place a network of laws and policies of expansive scope and uncertain duration. Unlike previous wars that ended with a definitive peace agreement or treaty or surrender, the war against terrorism is not likely to correspond to such definable finality. Moreover, because, in large part, the broadest sweep of these policies applies domestically, there is a magnified concern for any appreciable lack of limits. Wartime is not kind to liberties, and restrictions on personal freedom for reasons of national security have a notorious reputation for overstaying their welcome, long past the termination of the crisis. When that termination itself is unclear, these risks to liberty become even greater. President Bush also never refrains from reminding his audiences that "It's a different kind of war. It's a war that is not measured by the destruction of tanks, or ships, or aircraft, because we're fighting a different kind of enemy. This is a war that is measured in terms of killers caught" (Republican Governors Association 2002). That mixture of metaphors--"war," on the one hand, "killers," on the other--speaks volumes to the duality of the way this effort has unfolded (Roth 2002). More than just the correct metaphor is at stake here, for there are very real distinctions as to how a government conducts itself, depending on whether it engages in a war under the jurisdiction of the military, or in criminal prosecutions within the judicial system. In fact, the Bush administration has pursued both in its efforts to uproot and eradicate international terrorism, and has fused the two into what might be termed the "militarization of law enforcement," with the "war" on terrorism furnishing the predicate for both military action abroad and aggressive prosecution of terrorist suspects at home. Introduction All presidents view their responsibility to protect their citizens and their nation from hostile attack as the most solemn duty of the office. Nothing matters more than this profound obligation. …

Rivals for Influence on Counterterrorism Policy: White House Political Staff Versus Executive Branch Legal Advisors

Abstract: Rule of law, baby! --Comment by defense lawyers (in conga line?) at Guantanamo Bay naval base on January 20, 2009, on hearing that the new administration was suspending all military commissions on the base. (Finn and Kornblut 2011) The notion that you would take actions based on political considerations runs counter to everything in my DNA. --Eric Holder, as quoted in an interview to Daniel Klaidman of Newsweek, July 2009. (Klaidman 2009) Perhaps, in hindsight, three years later, those Guantanamo defense lawyers might look back at that exuberant outburst with more than a little regret and cynicism at their premature celebration. Similarly, Attorney General Eric Holder might wish he had refrained from making that statement, since this orientation is the basis for sharp criticism of him by White House aides for his insufficient attention to the political impact of his public statements and actions. It is the tension between politics and law that this article investigates, and Holder, among others, is a central figure in that tension. Above all, the president looks to his advisors--both legal and political ones--to give him their best advice. Often, however, what is a politically wise course of action may not be legally permissible, and vice versa. The Obama administration has confronted this conundrum, with special force, in developing its counterterrorism policies. This article proceeds from a series of basic assumptions, some grounded in policy and politics, while others are institutional in nature. * Opposition to key counterterrorism policies during the George W. Bush administration fueled a significant amount of voter support for the 2008 election of Barack Obama: candidate Obama pledged throughout the campaign to reverse these policies, and expectations ran high during the early days of his administration that major changes were afoot. * Four years later, two of the more high-profile policies that were prime candidates for reversal (housing detainees indefinitely at the military prison at Guantanamo Bay and the use of military commissions to prosecute terrorist suspects) have been the subject of withering political battles, only to end up exactly where they began, with very little change from the policies of the preceding Bush administration. * White House staff political and policy advisors, on the one hand, and cabinet secretaries, on the other, exist within a relationship fraught with rivalry, jealousy, and distrust--and for good reason, as department heads have watched their influence over policy making wane in direct proportion to the increase in centralized control over policy by White House staff. * Political and policy advisors to the president operate on the basis of short-term goals, hoping to win congressional and public approval for specific policies while always being mindful of the level of support they can reasonably expect from their party's members in Congress. * Executive branch lawyers are expected to perform their official responsibilities as servants of "the law": they look to long-term legal principles and judicial precedents as the touchstones for the legal advice they give to administration officials in the policy and political establishment. They are trained to think in terms of fundamental values and rulings that will hold up over time. That said, there has long been an inherent tension in political appointees within the Department of Justice between the recognition that they serve at the pleasure of the president who appointed them and the tradition of independence from politics that these positions expect and demand. The puzzle at the heart of this inquiry, to which these assumptions apply, is to determine why the Obama administration, entering office with such promise and deeply held intentions to restore respect for the rule of law by rejecting Bush-era counterterrorism policies, has been unable to achieve these specific goals and has gone even further by adopting most of these policies as its own. …

The White House Counsel's Office

Abstract: The White House counsel's office is at the hub of virtually all presidential activity. Its mandate is to be watchful for and attentive to legal issues that may arise in policy and political contexts involving the president. To fulfill this responsibility, it monitors and coordinates the presidency's interactions with other players in and out of government. Often called "the president's lawyer," the counsel's office serves, more accurately, as the "presidency's lawyer," with tasks that extend well beyond exclusively legal ones. These have developed over time depending on the needs of different presidents, the relationship between a president and a counsel, and contemporary political conditions. Today, the office carries out many routine tasks, such as vetting all presidential appointments and advising on the application of ethics regulations to White House staff and executive branch officials, but it also operates as a "command center" when crises or scandals erupt. Thus, the more sharply polarized political atmosphere of recent years has led to greater responsibility, as well as heightened political pressure and visibility, for the traditionally low-profile counsel's office. The high-stakes quality of its work has led to a common sentiment among counsels and their staff that there is "zero tolerance" for error. Law, Politics, and Policy A helpful way to understand the counsel's office is to see it as sitting at the intersection of law, politics, and policy. Consequently, it confronts the difficult and delicate task of trying to reconcile all three without sacrificing too much of any one. The distinctive challenge confronting the counsel's office is to advise the president to take actions that are both legally sound and politically astute. For example, A. B. Culvahouse recalled his experience on arriving at the White House as counsel and having to implement President Reagan's earlier decision to turn over his personal diaries to investigators during the Iran-contra scandal. Ronald Reagan's decision to turn over his diary--that sits at the core of the presidency.... You're setting up precedents and ceding a little power. But politically, President Reagan wanted to get it behind him. (As quoted in Bendavid 1994, 13) Nonetheless, Culvahouse (1999b, 28) added, the counsel is the last and in some cases the only protector of the president's constitutional privileges. Almost everyone else is willing to give those away in part inch by inch and bit by bit to win the issue of the day, to achieve compromise on today's thorny issue. Indeed, Lloyd Cutler, counsel to both Presidents Carter and Clinton, made a similar point, observing that the most challenging part of the counsel's job is to be the one to tell the president no. Cutler (1999, 3-4) noted that in return for being on the cutting edge of problems, the counsel needs to be someone who has his own established reputation ... someone who is willing to stand up to the president, to say "No, Mr. President, you shouldn't do that for these reasons." Consequently, the most essential task a counsel can perform for a president is to act as an early warning system for potential legal trouble spots before they erupt. For this role, a counsel must keep his or her "antennae" constantly attuned. Being at the right meetings at the right time and knowing which people have information or the technical expertise in specific policy or legal areas are key. Lloyd Cutler (1999, 4) noted, the White House counsel will learn by going to the staff meetings, et cetera, that something is about to be done that has buried within it a legal issue which the people who are advocating it either haven't recognized or push under the rug. Disaster can also strike when counsels do not make good use of the Office of Legal Counsel (OLC) in the Department of Justice for guidance on prevailing legal interpretations and opinions on the scope of presidential authority. …

From arguments to Supreme Court opinions in Planned Parenthood v. Casey.

Abstract: It is June 30, 1992. The Supreme Court handed down its decision yesterday in Planned Parenthood v. Casey, and now the analysis and debate over its immediate and longterm impact on abortion law and reproductive rights will begin for legal scholars and political leaders. But for public law specialists in political science, the intellectual curiosity about this case began many months ago, and the announcement of yesterday's decision was only the latest in a string of actions that many had already followed with great interest. In the rush to explain the significance of Casey to the public, the route by which it got to the Court and the arguments that shaped the ultimate result may be easily overlooked and dismissed by some as no longer relevant: what matters now will be to feed the public's appetite for a fastfood explanation of a high-profile case. But to public law specialists, what went before matters very much, indeed. A case is more than its outcome, and the parts that came before deserve some attention for the role they played in contributing to the final result.

Signals from the Tenth Justice: The Political Role of the Solicitor General in Supreme Court Decision Making

Abstract: Conventional explanations of the solicitor general’s influence on the Supreme Court emphasize his expertise or experience. We articulate and test a more political account based on insights from signaling theory. We argue justices will be more receptive to signals from the solicitor general (S.G.) when either the justice and S.G. are ideologically proximate or the S.G.’s signal is contrary to his ideological predisposition. We test our account over the period from 1953 to 2002 using a newly developed interinstitutional measure of ideology that places executive and judicial actors on the same spatial scale. Our results highlight the political nature of the S.G.’s influence, challenging the received wisdom about the S.G.’s impact on the Supreme Court.

The Supreme Court and Opinion Content The Influence of Parties' Briefs

Abstract: Do parties' briefs influence the content of Supreme Court opinions? The author contends that the parties, through the briefs submitted on the merits, have the ability to influence the content of op...

Lawyers, justices, and issue salience : When and how do legal arguments affect the U.S. supreme court?

Abstract: A good deal of scholarly evidence suggests that the decisionmaking of the U.S. Supreme Court is affected by legal argument. At the same time, it seems clear that in a great many cases the justices have enduring, strongly held views. In such cases, they should be impervious to the effects of advocacy. When are the justices apt to be influenced by the Court's legal community, and when will lawyers be less relevant? The answer, we think, has to do with the salience of the issue before the Court. We suspect that in nonsalient cases the justices have less-intense preferences and therefore are open to the persuasion of lawyers. In salient cases, by contrast, the content of legal policy matters much more to the justices. As a result, they are less amenable to legal argument and adhere more strictly to their personal policy preferences. Our empirical tests support this orientation.

Unmanned Aerial Vehicles in Counterterrorism Efforts and Implications for International Humanitarian Law

Abstract: Unmanned Aerial Vehicles in Counterterrorism Efforts and Implications for International Humanitarian Law by Adebamiji Kunle Olulowo MSS, University of Ibadan, 2015 MBA, National Institute of Business Management, Chennai, 2015 Master in International Law and Diplomacy, University of Lagos, 1997 Bsc, Nigerian Defence Academy, Kaduna, 1991 Dissertation Submitted in Partial Fulfilment of the Requirements for the Degree of Doctor of Philosophy Public Policy and Administration

Can the Prince Really Be Tamed? Executive Prerogative, Popular Apathy, and the Constitutional Frame in Locke's Second Treatise

Abstract: Even as he recommends it as the extra-constitutional solution to the inefficiencies and insufficiencies of legislative constitutionalism, Locke's Second Treatise is far more aware of the dangers of executive prerogative than the more optimistic accounts in the recent scholarship have appreciated, making Locke pessimistic about the permanent sustenance of legislative constitutionalism. This pessimism stems from Locke's recognition that the people are far too constitutionally passive for the vigilance essential to ‘umpire’ well the necessity of executive action outside the laws. In fact, liberalism itself can contribute to such passivity: the people are content to allow an executive to act with a significant degree of discretion outside the laws so long as those actions do not interfere with their short-term interest in security and prosperity. Understanding Locke's pessimism regarding popular vigilance casts into new light his argument for a legislative constitutionalism based on fundamental laws that establish a clear separation of powers. Such fundamental laws provide legislative elites with the constitutional ‘signals’ by which they can alert the otherwise slumbering people about an executive intent on usurpation and tyranny.