See, e.g., Elizabeth White, Obama Says Gitmo Facility Should Close, Wash. Post (June 24, 2007), http://www.washingtonpost.com/wp-dyn/content/article/2007/06/24/AR2007062401046.html [http://perma.cc/6X5X-SU29].
See, e.g., Jeremy Herb, Obama Slams Congress for Blocking Efforts To Close Gitmo, Politico (Jan. 19, 2017), http://www.politico.com/story/2017/01/obama-congress-guantanamo-bay -233859 [http://perma.cc/6MSS-4XLT] (describing President Obama criticizing Congress “for playing politics in repeatedly blocking his effort to close the terrorist prison”); see also infra notes 42-51 and accompanying text.
Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. L. No. 111-383, § 1033(b)(5), 124 Stat. 4137, 4352 (2011).
Connie Bruck, Why Obama Has Failed To Close Guantánamo, New Yorker (Aug. 1, 2016), http://www.newyorker.com/magazine/2016/08/01/why-obama-has-failed-to-close -guantanamo [http://perma.cc/X4TZ-BTB9].
Mark A. Chinen, Presidential Certifications in U.S. Foreign Policy Legislation, 31 N.Y.U. J. Int’l L. & Pol. 217, 272 (1999).
Peter E. Quint, The Separation of Powers Under Carter, 62 Tex. L. Rev. 785, 827 (1984); cf. Certification, Black’s Law Dictionary (10th ed. 2014) (defining a certification as “an official document stating that a specified standard has been satisfied”); Chinen, supra note 6, at 219 (defining certification requirements as “laws that require the President to certify as to particular conditions before acting”).
See Christopher Hood, The Blame Game: Spin, Bureaucracy, and Self-Preservation in Government 7-8 (2010) (describing the motivations of public officials to avoid blame); see also Graham T. Allison, Conceptual Models and the Cuban Missile Crisis, 63 Am. Pol. Sci. Rev. 689, 710 (1969) (noting the role of “personal interests” in political decision-making).
Id. at 223. For a more recent high-profile example, see the Iran Nuclear Agreement Review Act of 2015, Pub. L. No. 114-17, 129 Stat. 201.
See, e.g., Foreign Assistance Act of 1974, Pub. L. No. 93-559, § 26(a), 88 Stat. 1795, 1802 (tying twenty million dollars in military assistance for South Korea to the President’s finding that South Korea is making “significant progress” in observing human rights); International Security Development Cooperation Act of 1981, Pub. L. No. 97-113, § 725, 95 Stat. 1519, 1553 (conditioning assistance upon the President certifying, inter alia, that the Argentinian government had made “significant progress” in complying with human rights principles); id. § 726, 95 Stat. 1519, 1554 (requiring the same for Chile).
FISA: 702 Collection, Lawfare, http://www.lawfareblog.com/topic/fisa-702-collection [http://perma.cc/HM69-VU4Y] (Jan. 18, 2018, 4:29 PM).
50 U.S.C. § 1881a (2012); see also Section 702: What It Is & How It Works, Ctr. for Democracy & Tech. (Feb. 15, 2017), http://cdt.org/insight/section-702-what-it-is-how-it-works [http://perma.cc/Y74Y-LKE2].
See, e.g., H. Richard Friman, Behind the Curtain: Naming and Shaming in International Drug Control, in The Politics of Leverage in International Relations: Name, Shame, and Sanction 143, 153-62 (H. Richard Friman ed., 2015) (discussing U.S. certifications related to international narcotics control).
See, e.g., John Norton Moore, The Secret War in Central America and the Future of World Order, 80 Am. J. Int’l L. 43, 69 (1986) (discussing the Carter Administration’s certification that Nicaragua was not giving assistance to international terrorism—a certification that was controversial based on the evidence but necessary to continue providing economic aid); Scott Horton & Randy Sellier, Commentary, The Utility of Presidential Certifications of Compliance with United States Human Rights Policy: The Case of El Salvador, 1982 Wis. L. Rev. 825; Amy S. Griffin, Comment, Constitutional Impediments to Enforcing Human Rights Legislation: The Case of El Salvador, 33 Am. U. L. Rev. 163, 210 (1983).
International Security and Development Cooperation Act of 1981, Pub. L. No. 97-113, § 728(d), 95 Stat. 1519, 1556.
Jeffrey A. Meyer, Congressional Control of Foreign Assistance, 13 Yale J. Int’l L. 69, 101 (1988).
In addition to the pieces already referenced, see also Stephen B. Cohen, Conditioning U.S. Security Assistance on Human Rights Practices, 76 Am. J. Int’l L. 246, 278 (1982) (examining legislation conditioning security assistance on human rights practices and finding that if executive officials are hostile, “even a general rule written with a high degree of precision will probably have little impact on executive decisions”); and Friman, supra note 20, at 156-57 (describing congressional disappointment with lax or inconsistent executive certifications regarding which countries were “fully cooperating” with U.S. narcotics efforts).
Note, Congressional Control of Foreign Assistance to Post-Coup States, 127 Harv. L. Rev. 2499, 2519 n.117 (2014).
John Bellinger, Guantanamo Redux: Why It Was Opened and Why It Should Be Closed (and Not Enlarged), Lawfare (Mar. 12, 2017, 5:01 PM), http://www.lawfareblog.com/guantanamo -redux-why-it-was-opened-and-why-it-should-be-closed-and-not-enlarged [http://perma.cc/C44J-6WY3].
See Alyssa Fetini, A Brief History of Gitmo, Time (Nov. 12, 2008), http://content.time.com/time/nation/article/0,8599,1858364,00.html [http://perma.cc/7EY4-HVVF].
Charlie Savage, Power Wars: Inside Obama’s Post-9/11 Presidency 127 (2015) (“[President Obama] laid out a framework for Guantánamo: Transfer lower-level detainees. Keep holding the more dangerous ones somewhere but prosecute as many as possible, strongly preferring civilian trials but retaining military commissions as an option.”).
See Supplemental Appropriations Act, 2009, Pub. L. No. 111-32, § 14103(e), 123 Stat. 1859, 1921; see also Savage, supra note 40, at 129.
Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. L. No. 111-383, § 1032, 124 Stat. 4137, 4351.
National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, § 1028(d)(1), 126 Stat. 1632, 1915-16 (2012); National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § 1028(d)(1), 125 Stat. 1298, 1568 (2011).
National Defense Authorization Act for Fiscal Year 2013, § 1028(d)(2); National Defense Authorization Act for Fiscal Year 2012 § 1028(d)(2).
See National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1035(b), 127 Stat. 672, 851-52 (2014) (including in § 1035(b)(1)-(2), for instance, key language about “mitigating risk” of terrorism and “national security interests” from the National Defense Authorization Act for Fiscal Year 2012 § 1028(d)(1)(C)-(D)); see also National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, § 1034(a)-(b), 129 Stat. 726, 968; Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, § 1032, 128 Stat. 3292, 3491 (2014) (leaving the provision unchanged from the NDAA for fiscal year 2014).
Missy Ryan & Adam Goldman, Time Is Running Out for Obama To Fulfill Promise To Close Guantanamo, Wash. Post (Oct. 7, 2015), http://www.washingtonpost.com/world/national -security/time-is-running-out-for-obama-to-fulfill-promise-to-close-guantanamo/2015/10/07/0d42dd20-6778-11e5-9223-70cb36460919_story.html [http://perma.cc/JGQ9-XBSC] (“By U.S. law, the defense secretary must personally vouch for the safety of all detainee transfers.”).
Jeh C. Johnson, Speech to the Heritage Foundation, Heritage Found. 7 (Oct. 18, 2011), http://lawfare.s3-us-west-2.amazonaws.com/staging/s3fs-public/uploads/2011/10/20111018_Jeh -Johnson-Heritage-Speech.pdf [http://perma.cc/CCC6-C598].
Department of Defense Authorization for Appropriations for Fiscal Year 2012 and the Future Years Defense Program: Hearings on S. 1253 Before the S. Comm. on Armed Services, 112th Cong. 49 (2011) (statement of Robert Gates, Secretary of Defense).
Jason Leopold, Here’s What the White House’s “Secret” Plan To Close Guantanamo Looks Like, Freedom of the Press Found. (Aug. 22, 2013), http://freedom.press/news-advocacy/heres -what-the-white-houses-secret-plan-to-close-guantanamo-looks-like [http://perma.cc/E6WR-ZBA6] (making available the White House Plan for Closing the Guantánamo Bay Detention Facility); see also Daniel Klaidman, President Obama’s Secret Gitmo Plan, Newsweek (July 31, 2013), http://www.newsweek.com/2013/07/31/president-obamas -secret-gitmo-plan-237782.html [http://perma.cc/FTU4-H5X7].
Dan De Luce, Hagel: The White House Tried To “Destroy” Me, Foreign Pol’y (Dec. 18, 2015), http://foreignpolicy.com/2015/12/18/hagel-the-white-house-tried-to-destroy-me [http://perma.cc/9GFN-K9DF].
See, e.g., Helene Cooper, Hagel Resigns Under Pressure as Global Crises Test Pentagon, N.Y. Times (Nov. 24, 2014), http://www.nytimes.com/2014/11/25/us/hagel-said-to-be-stepping-down -as-defense-chief-under-pressure.html [http://perma.cc/6SST-ERKE] (citing Mr. Hagel’s delays in transferring detainees); De Luce, supra note 59 (“The arguments over Guantánamo detainees were cited by White House officials as the last straw that led to Hagel having to step down.”); Adam Goldman & Missy Ryan, Issue of Where To Move Guantanamo Detainees Threatens Closure Plan, Wash. Post (Aug. 10, 2015), http://www.washingtonpost.com/world /national-security/guantanamo-closure-plan-suffers-setback-over-us-site-for-detainees/2015/08/10/1540c2e0-3f68-11e5-9561-4b3dc93e3b9a_story.html [http://perma.cc/8DVF -8XEZ] (“White House pressure to approve transfers more quickly created friction with then-Defense Secretary Chuck Hagel, which contributed to his early resignation last year.”); Charles Levinson & David Rohde, Special Report: Pentagon Thwarts Obama’s Efforts To Close Guantanamo, Reuters (Dec. 29, 2015, 5:20 AM), http://www.reuters.com/article/us-usa -gitmo-release-special-report-idUSKBN0UB1B020151229 [http://perma.cc/L57H-822Q] (“The Pentagon’s slow pace in approving transfers was a factor in President Obama’s decision to remove Hagel in February, former administration officials said.”).
Charlie Savage, Obama’s Plan for Guantánamo Is Seen as Faltering, N.Y. Times (July 21, 2015), http://http://www.nytimes.com/2015/07/22/us/politics/obamas-plan-for-guantanamo-is-seen -faltering.html [http://perma.cc/LC7K-HKEQ].
Tim Mak & Nancy A. Youssef, The Pentagon Is Keeping Half of Gitmo Locked Up—Against the White House’s Wishes, Daily Beast (Aug. 9, 2015, 8:53 PM), http://www.thedailybeast.com/the-pentagon-is-keeping-half-of-gitmo-locked-upagainst-the-white-houses-wishes [http://perma.cc/ZD6Y-9W7P].
Letter from Barack Obama, President of the United States, to the Speaker of the House of Representatives and the President Pro Tempore of the Senate (Jan. 19, 2017) (available at Office of the Press Sec’y, Letter from the President—Report with Respect to Guantanamo, White House, http://obamawhitehouse.archives.gov/the-press-office/2017/01/19/letter-president -report-respect-guantanamo [http://perma.cc/SG8R-BLHU]).
As Lee Wolosky, the State Department’s Special Envoy for Closing Guantánamo, said, “[w]hat we’re doing to make [closure] happen is transfers.” Bruck, supra note 5.
Charlie Savage, Decaying Guantánamo Defies Closing Plans, N.Y. Times (Sept. 1, 2014), http://http://www.nytimes.com/2014/09/01/us/politics/decaying-guantanamo-defies-closing-plans.html [http://perma.cc/2DV5-PP9S]; see also Savage, supra note 40, at 6262 (quoting Robert M. Chesney, who worked on detainee policy for the Obama Administration, saying, “Whatever hope there is [for closure] depends on quick progress in transferring as many detainees as possible”).
See Kathleen Hennessey & Ben Fox, Obama Administration Rushing To Shrink Ranks at Guantanamo, Associated Press (June 5, 2016, 9:01 AM), http://www.apnewsarchive.com/2016/Obama_administration_rushing_to_shrink_ranks_at_Guantanamo/id-ae119704ebd5428aa5ec0045d7c9e59b [http://perma.cc/BWZ8-3CDS] (noting that the Obama Administration is “running out of time and options” and that while the administration has picked up the pace, “it looks to be [too] little, too late to close the prison”).
Id. at 137-38; see also Dennis F. Thompson, Moral Responsibility of Public Officials: The Problem of Many Hands, 74 Am. Pol. Sci. Rev. 905, 907-08 (1980) (arguing that collective responsibility weakens democratic accountability).
Robert Merton, Bureaucratic Structure and Personality, in Social Theory and Social Structure 249, 250 (1968); see also Stephen Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation 62-63 (1993) (describing how bureaucratic insulation can assist in better decision-making).
See Hood, supra note 10, at 98 (noting the use of group decision-making in high-stakes situations, such as assessing whether children are at risk of abuse or the risk posed by pedophiles released from custody); see also R. Kent Weaver, The Politics of Blame Avoidance, 6 J. Pub. Pol’y 371, 388-89 (1986) (describing how, where there is no way of avoiding hard choices, politicians can “circle the wagons” to ensure “no one has to stick their neck out”).
See Suzanne Garment, Scandal: The Crisis of Mistrust in American Politics 295 (1991); see also id. at 1 (“‘Nothing goes on paper.’ The political appointee was explaining how top managers in her federal agency make their official decisions.”).
Worth exploring further, though noted only in passing here, are the bureaucratic countermeasures, contemplated or taken, that attempted to de-localize responsibility for the Guantánamo certifications and so dilute the risk. Compare Savage, supra note 40, at 526-28, and Jason M. Breslow, Chuck Hagel: Closing Guantanamo Is an “Imperfect Process,” PBS (Feb. 21, 2017), http://http://www.pbs.org/wgbh/frontline/article/chuck-hagel-closing-guantanamo-is-an -imperfect-process [http://perma.cc/G3PL-D7BB] (recounting Attorney General Eric Holder’s proposal that the entire National Security Council sign the certification), with Hood, supra note 10, at 97-100 (describing “herding”—collective decision-making—as a tactic to reduce blame on any given individual); compare Memorandum from Susan Rice, Assistant to the President for Nat’l Sec. Affairs, to the Secretary of Defense, “Guidance on Guantanamo Bay Detainee Transfers” 1-2 (May 24, 2014) (defining “substantially mitigate[d]” as a checklist of potential steps), with Hood, supra note 10, at 93-97 (describing “protocolization” as a tool for limiting blame for the faulty exercise of discretion).
Exec. Order No. 13,567, 3 C.F.R. § 13567 (2012). Prior to the establishment of the parole-like board via the 2011 order, a six-agency task force reviewed detainees for transfer eligibility. Charlie Savage, The Fight over Guantánamo’s Parole Board, Explained, N.Y. Times (Feb. 17, 2017), http://www.nytimes.com/2017/02/17/us/politics/guantanamo-bay-parole-periodic -review-board.html [http://perma.cc/RZT9-Q9R2].
National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § 1023(b)(1)-(2), 125 Stat. 1298, 1564 (codified at 10 U.S.C. § 801 note).
Breslow, supra note 83. For an interesting potential analogue, California voters passed a 1988 constitutional amendment requiring the Governor to review cases where the state parole board recommends a convicted murderer be released. Cal. Const. art. V, § 8(b). The amendment was intended to hold the Governor accountable in a Willie Horton-style case of high profile recidivism. While the law passed without much attention, the effects were dramatic: Governor Arnold Schwarzenegger reversed seventy-five percent of cases; Governor Gray Davis reversed ninety-nine percent. Said one former head of the California prison system: “I don’t know that inmates believed, or even practitioners believed, that the governor would reject as many cases as they did when it initially passed.” This American Life: Long Shot, Chi. Pub. Radio (Jan. 8, 2010), http://www.thisamericanlife.org/radio-archives/episode/398/transcript [http://perma.cc/2GP6-6KHQ].
Charlie Savage & Helene Cooper, Under Pressure, Hagel Promises To Act on Guantánamo Transfers, N.Y. Times (May 29, 2014), http://www.nytimes.com/2014/05/30/us/hagel-sets-his -own-timetable-on-deciding-guantanamo-transfers.html [http://perma.cc/NHT4-TNSE]; see also, e.g., Breslow, supra note 83 (discussing Secretary Hagel’s description of how the NDAA “put the responsibility of certifying the detainees . . . solely on the shoulders of the secretary of defense”); Rebecca Shabad, Report: Pentagon Officials Have Slowed Process To Close Gitmo, CBS News (Dec. 28, 2015, 5:33 PM) http://www.cbsnews.com/news/report-pentagon -officials-have-slowed-process-to-close-gitmo [http://perma.cc/MTU5-UJWQ] (“[B]y law, I [Hagel] am the one official in government charged with certification of release of detainees. I take that responsibility very seriously.”).
Chinen, supra note 6, at 272; Griffin, supra note 21, at 210; Quint, supra note 9, at 827, 827 n.221.
Meyer’s suggestion of “shadow” fact-finding committees and Chinen’s suggestions of narrower, more objective certification criteria can be understood as attempts to constrain the Executive by raising the political costs of certifications that run roughshod over the truth. See Meyer, supra note 35, at 101; Chinen supra note 6, at 274.
Cf. Robert D. Behn, Rethinking Democratic Accountability 84 (2001) (noting how a Senator’s attempts to publicize fraud “got the most press—the most public attention—not for the million-dollar mistakes, but for the small ones that everyone could understand”); Mary Douglas, Risk as a Forensic Resource, in Risk 1, 10 (Edward J. Burger, Jr. ed., 1993) (describing the evaluation of an outcome as “a political, aesthetic, and moral matter”).
Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1998, Pub. L. No. 105-118, 111 Stat. 2386, 2399-2400 (1997).
Alexander Robertson et al., The ISIS Suicide Bomber YOU Paid £1million! British Fighter Who Blew Himself Up in Mosul Was Compensated for Serving Time in Gitmo—After Tony Blair Got Him Freed—Then Fled To Join ISIS, Daily Mail (Feb. 22, 2017, 7:10 PM), http://www .dailymail.co.uk/news/article-4244444/British-ISIS-fanatic-pictured-grinning-bomb-attack.html [http://perma.cc/M5W5-N4VE].
Cf. Savage, supra note 40, at 183 (noting that officials who try to halt national security programs put themselves at risk of blame for a future attack that the program might have prevented).
Phil Hirschkorn, 11 Years in Guantanamo Without Trial or Charges, CBS News (May 31, 2013, 6:35 PM) http://www.cbsnews.com/news/11-years-in-guantanamo-without-trial-or -charges [http://perma.cc/H6MU-C593].
Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 402, 120 Stat. 587, 622 (codified at 8 U.S.C. § 1154(a)(l)(A)(viii)(I)).
Roland v. U.S. Citizenship & Immigration Servs., 850 F.3d 625, 627 n.1 (4th Cir. 2017). No such delegation of responsibility was possible with the Guantánamo certifications. National Defense Authorization Act for Fiscal Year 2012, Pub. L. No, 112-81, § 1023(b)(2).
U.S. Dep’t of Homeland Sec., No. HQDOMO 70/1-P, Guidance for Adjudication of Family-Based Petitions (Feb. 8, 2007).
U.S. Dep’t of Homeland Sec., No. HQ 70/1-P, Transmittal of SOP for Adjudication of Family-Based Petitions (Sept. 24, 2008).
Bremer v. Johnson, 834 F.3d 925, 929 (8th Cir. 2016) (noting that the U.S. Citizenship and Immigration Service has determined that judgments of “no risk” should be “rare”); Jennie Guilfoyle, Updates on Family-Based Immigration from the VSC and NVC, Catholic Legal Immigr. Network, http://cliniclegal.org/resources/articles-clinic/updates-family-based -immigration-vsc-and-nvc [http://perma.cc/928J-F4ER] (reporting that about one percent of petitions were approved in 2012).
Mark Landler & David E. Sanger, Trump Disavows Nuclear Deal, But Doesn’t Scrap It, N.Y. Times (Oct. 13, 2017), http://www.nytimes.com/2017/10/13/us/politics/trump-iran-nuclear-deal.html [http://perma.cc/6KB8-CUR2].
Mark Landler & David E. Sanger, Trump To Force Congress To Act on Nuclear Deal, N.Y. Times (Oct. 5, 2017), http://www.nytimes.com/2017/10/05/world/middleeast/trump-iran-nuclear-deal.html [http://perma.cc/37JV-WDCT].
Vali Nasr, the Dean of the Johns Hopkins School of Advanced International Studies, said, “He doesn’t want to certify the Iran deal for more domestic reasons than international ones. He doesn’t want to certify that any piece of the Obama strategy is working.” Anne Gearan, “He Threw a Fit”: Trump’s Anger Over Iran Deal Forced Aides To Scramble for a Compromise, Wash. Post (Oct. 11, 2017), http://www.washingtonpost.com/politics/he-threw-a-fit-trumps -anger-over-iran-deal-forced-aides-to-scramble-for-a-compromise/2017/10/11/6218174c -ae94-11e7-9e58-e6288544af98_story.html [http://perma.cc/PX76-AX2T].
Josh Dawsey et al., Trump Had for Months Been Determined to Move U.S. Embassy to Jerusalem (Dec. 6, 2017), http://www.washingtonpost.com/world/national-security/trump-had-for -months-been-determined-to-move-us-embassy-to-jerusalem/2017/12/06/f721e2ba-dab7 -11e7-b1a8-62589434a581_story.html [http://perma.cc/46QU-AUMQ].
Mark Landler, For Trump, an Embassy in Jerusalem Is a Political Decision, Not a Diplomatic One, N.Y. Times (Dec. 6, 2017), http://www.nytimes.com/2017/12/06/us/politics/trump -embassy-jerusalem-israel.html [http://perma.cc/V9LY-T9TL].
Id. While President Trump ultimately signed the second waiver, he made clear he was setting in motion plans to move the embassy, which mollified supporters. Id.
See Landler & Sanger, supra note 107; Landler, supra note 114 (pointing out that President Trump’s handling of the Jerusalem embassy issue was “not unlike his handling of the nuclear deal with Iran” and reporting that “[w]hen the six-month clock expired this month, Mr. Trump was determined to leave himself more options”); David Nakamura, Trump Recognizes Jerusalem as Capital of Israel in Reversal of Longtime U.S. Policy, Wash. Post (Dec. 6, 2017), http://www.washingtonpost.com/politics/in-white-house-speech-trump-recognizes -jerusalem-as-capital-of-israel-in-reversal-of-longtime-us-policy/2017/12/06/de9322e6 -da9d-11e7-a841-2066faf731ef_story.html [http://perma.cc/8E66-GYSM] (noting that President Trump was “anxious” to move forward on a declaration on Jerusalem as the deadline for the second waiver approached).
One might argue that the fact that other Presidents bit the bullet and made the Jerusalem certifications—like the fact that Secretary Carter ultimately made a number of transfers—call into doubt whether the certification requirements actually shaped these decisions. But the salience of blame risk can differ across individuals and across circumstances; the varying susceptibility to this pressure does not mean that such pressure does not exist. See Hood, supra note 10, at 8 (comparing a politician on the eve of a close race with one on the eve of retirement and noting that “not everyone can be expected to care equally about all types of blame in all circumstances”); Weaver, supra note 80, at 377 (making a similar point).
See Weaver, supra note 80, at 381-82 (describing how the manner in which political choices are structured can be used to generate or avoid blame).
See, e.g., Peter DeScioli et al., The Omission Strategy, 22 Psychol. Sci. 442, 442 (2011) (finding that “people condemn others less harshly when a moral offense occurs by omission rather than by commission, even when intentions are controlled” and concluding that actors choose omissions to avoid condemnation); Mark Spranca et al., Omission and Commission in Judgment and Choice, 27 J. Experimental Soc. Psychol. 76 (1991) (finding that subjects considered commissions causing harm to be worse than omissions causing harm, even when holding the actor’s intention constant).
Cf. Griffin, supra note 21, at 174 (contrasting human rights provisions that prohibited aid until the President made a favorable determination, with other laws that provided aid unless the Executive made an unfavorable determination); Weaver, supra note 80, at 380 (discussing how legislators sought to avoid directly voting for their own pay raises—a politically losing proposition—by creating a process for automatic pay increases; when this attempt failed, however, they were forced to vote on the pay increases directly and so voted against them).
Some certifications are set up this way. See, e.g., Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1998, Pub. L. No. 105-118, 111 Stat. 2386, 2394 (1997) (empowering the President to withhold appropriated funds from Bosnia and Herzegovina if he certifies that the country has not complied with aspects of a peace agreement); International Security and Development Cooperation Act of 1981, Pub. L. No. 97-113 724(c), 95 Stat. 1519, 1553 (cutting assistance to the Nicaraguan government if the President determines, inter alia, that the Nicaraguan government is aiding international terrorism).
But see Weaver, supra note 80, at 381 (noting that voters may fail to link policymakers to choices they have made).
Cf. Chinen, supra note 6, at 225-26 (noting some certification requirements are primarily statements of policy, others are primarily statements of fact, and others are a mixture of fact, policy, and sometimes law).
See id. at 274-75 (arguing that certification requirements should be either “very narrow” or “very broad,” and pointing to a “national interest” certification as an example of a broad certification requirement).
Other scholars point out that even some empirical criteria can offer significant room for executive discretion. Meyer proposes creating still more objective standards, such as standards based on specific numerical quantities. He suggests, for instance, a statute could impose foreign aid restrictions based on whether a specified number of people had been victimized rather than on whether a country engaged in a “consistent pattern” of human rights abuses. Meyer, supra note 35, at 101; see also Chinen, supra note 6, at 274 (suggesting that, with respect to an anti-narcotics certification, “Congress could impose numerical criteria, such as numbers of drug seizures, extraditions, etc., to determine whether a country has cooperated” with American anti-narcotics efforts).
Chinen, supra note 6, at 274 (arguing narrower criteria for certifications would deter the Executive from making controversial certifications because of the possibility of embarrassment or being caught in deception).
Id. at 271 (noting that certification requirement “impose a burden on the executive branch, in terms of the administrative costs of compliance, formulation, and implementation of policy”).
As a consequence, it will generally be less onerous for a certifier to vouch that certain procedures were followed than to vouch that certain outcomes will be achieved. See Hood, supra note 10, at 93-97 (discussing protocolization).
See Behn, supra note 91, at 6 (critiquing definitions of accountability that equally emphasize blame and praise).
See Hood, supra note 10, at 9-13; Weaver, supra note 80, at 371, 376 (arguing politicians are more motivated to avoid blame than to claim credit and that political appointees and bureaucrats are motivated to avoid blame too, respectively).
See, e.g., Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 94 (1994) (“Accountability and avoidance of factionalism, then, are two central values of the framers’ original executive.”); Susan M. Davies, Comment, Congressional Encroachment on Executive Branch Communications, 57 U. Chi. L. Rev. 1297, 1299-1300 (1990) (discussing the Framers’ creation of the office of the President as a politically accountable figure in whom all executive power would reside).
See Allison, supra note 10, at 711. For a general discussion of bureaucratic politicking, see id. at 708-12.
Cf. Cohen, supra note 36, at 256-62 (illustrating how different interests can shape how actors perceive costs and benefits by offering an account of the “intense bureaucratic warfare” within President Carter’s State Department over the conditioning of security assistance upon human rights concerns; while high political officials pushed for prioritizing human rights concerns, career officials consistently opposed such prioritization because they were not particularly concerned about human rights, and such prioritization jeopardized the maintenance of good relations with the governments in question, which they saw as their primary goal).
Id.; see also Kay & Youssef, supra note 64 (noting speculation that President Obama was considering asking Congress for an amendment to the certification requirement so that the President could issue the certifications rather than the Defense Secretary).
The certification’s location may also be strategically important for a reason unrelated to risk–reward calculus—it may simply provide another tool for a bureaucracy to fight a policy that it already opposed. There were, for instance, widespread reports that elements of the Defense Department opposed the closure of Guantánamo. See, e.g., Levinson & Rohde, supra note 61; Shabad, supra note 87. The certification requirements provided cover—as one former senior Defense official said, they gave Defense officials “the ability to be openly in favor of transferring people but unable to do it, because of the law.” Bruck, supra note 5.
Paris Attacks: What Happened on the Night, BBC News (Dec. 9, 2015), http://www.bbc.com/news/world-europe-34818994 [http://perma.cc/VDL9-PT9J].
Attacks in Paris, N.Y. Times, http://www.nytimes.com/news-event/attacks-in-paris [http://perma.cc/ZNY5-JBF8].
Evan Perez, First on CNN: FBI Director James Comey Balks at Refugee Legislation, CNN (Nov. 19, 2015, 1:51 PM), http://www.cnn.com/2015/11/19/politics/fbi-director-james-comey -refugee-legislation/index.html [http://perma.cc/E7SL-XPQQ].
Office of Mgmt. & Budget, Statement of Administration Policy: H.R. 4038—American SAFE Act of 2015, Executive Off. President 1 (Nov. 18, 2015), http://obamawhitehouse.archives.gov/sites/default/files/omb/legislative/sap/114/saphr4038r_20151118.pdf [http://perma.cc/C8PU-FPEB]. The author does not know whether the Obama Administration explicitly considered its experience with the Guantánamo Bay certification requirements when taking this position, but it seems reasonable to think it might have.
This number is calculated by taking the number of Iraqi and Syrian refugees admitted in Fiscal Year 2016See Phillip Connor, U.S. Admits Record Number of Muslim Refugees in 2016, Pew Res. Ctr. (Oct. 5, 2016), http://www.pewresearch.org/fact-tank/2016/10/05/u-s-admits -record-number-of-muslim-refugees-in-2016 [http://perma.cc/TZG9-4KSF], and multiplying them by the FBI Director’s ten-year term. Act of Oct. 15, 1976 Crime Control Act of 1976, Pub. L. No. 94-503, § 203, 90 Stat. 2407, 2427.
The Obama Administration claimed the SAFE Act would “create significant delays and obstacles” for the refugee program. Office of Mgmt. & Budget, supra note 152, at 1. The certification regime would obviously demand time and attention from the senior officials themselves. And Congressman Brad Sherman wryly noted, “If our security leaders just spend 2 hours on each [refugee] file, it will consume all of their working hours. ISIS cannot simultaneously and permanently incapacitate our security leaders. This bill does.” 161 Cong. Rec. H8388 (daily ed. Nov. 19, 2015) (statement of Rep. Sherman). Furthermore, resources would also be consumed by whatever additional lower-level bureaucratic protocols the principals would surely want put in place. See, e.g., Savage & Cooper, supra note 87 (describing the legwork Hagel wanted done before he was willing to sign off on a Guantánamo transfer).
Megan Cassella & Patricia Zengerle, Defying Obama, House Passes Bill To Slow Syrian Refugees, Reuters (Nov. 19, 2015) (emphasis added), http://ca.news.yahoo.com/u-house-passes -strict-screening-syrians-defying-veto-190805401.html [http://perma.cc/ST5J-6PEB].
Jennifer Steinhauer & Michael D. Shear, House Approves Tougher Refugee Screening, Defying Veto Threat, N.Y. Times (Nov. 19, 2015), http://www.nytimes.com/2015/11/20/us/politics/house-refugees-syria-iraq.html [http://perma.cc/LR58-B4FK].
Press Release, Representative Sean Patrick Maloney, Maloney Statement on American SAFE Act of 2015 (Nov. 19, 2015), http://seanmaloney.house.gov/media-center/press-releases/maloney-statement-on-american-safe-act-of-2015 [http://perma.cc/SM8L-5EZN].
Lloyd Doggett, Facebook (Nov 19, 2015) http://www.facebook.com/lloyddoggett/videos/vb.154050553704/10153473074978705/?type=2&theater [http://perma.cc/P8MD-HAGQ].
Sam Stein et al., How the White House Lost Democrats on the Syrian Refugee Bill, Huffington Post (Nov. 20, 2015), http://www.huffingtonpost.com/entry/house-democrats-syria -refugees_us_564f5607e4b0879a5b0ac4f7 [http://perma.cc/RXM2-A3KX]. The American SAFE Act even garnered the votes of Democrats who took an active stand on refugee issues: ten of the Democrats who voted for the bill had, two months earlier, urged President Obama to dramatically expand the refugee program to take in 100,000 Syrians refugees. Id.
One reporter called the bill a “brilliant strategic move” for congressional Republicans. Dara Lind, Republicans Have Obama in a Corner on Syrian Refugees, Vox (Nov. 19, 2015, 2:06 PM), http://www.vox.com/2015/11/19/9762054/congress-obama-refugees-syria [http://perma.cc/BP5G-QKEF].
Russell Berman, Republicans Try To Tangle the Refugee Program with Red Tape, Atlantic (Nov. 19, 2015), http://www.theatlantic.com/politics/archive/2015/11/republicans-try-to -kill-syrian-refugee-program-with-red-tape/416640 [http://perma.cc/L94Y-M24C].
See, e.g., 161 Cong. Rec. H8382 (daily ed. Nov. 19, 2015) (statement of Rep. McCaul) (“The American SAFE Act also strikes an important balance between security and our humanitarian responsibilities. It sets up roadblocks to keep terrorists from entering the United States, while also allowing legitimate refugees who are not a threat to be resettled appropriately.”); see also id. at H8385 (statement of Rep. Poe) (“[This legislation] has nothing to do with refugees as far as whether we accept refugees. Our country accepts refugees. We always have. That is clear. It is not the issue of refugees. It is the issue of letting ISIS terrorists get into the country to kill us . . . .”). Refugee advocates were skeptical. Melanie Nezer, the chairwoman of Refugee Council USA, said the Republican message “masked the true impact of the legislation,” which would effectively terminate the refugee program: “[T]his is a way to say [that] isn’t what they’re doing, but if you look at the legislation, that’s actually what the result is.” Berman, supra note 166.
See, e.g., Liz Goodwin, Obama Administration Defends Its Syrian Refugee Screening, Yahoo (Nov. 17, 2015), http://www.yahoo.com/news/obama-administration-defends-its-syrian -refugee-212248421.html [http://perma.cc/5SJH-UEQZ]; Steinhauer & Shear, supra note 158 (quoting President Obama saying that the refugee screening process is “the most rigorous vetting process that we have” for anyone admitted to the country).
Mike DeBonis, House Passes Bill To Tighten Flow of Syrian Refugees Over Obama’s Objections, Wash. Post (Nov. 19, 2015), http://www.washingtonpost.com/news/powerpost/wp/2015/11/19/house-moves-to-tighten-flow-of-syrian-refugees-over-obamas-objections [http://perma.cc/2BMP-Z5EK].
See Behn, supra note 91, at 2 (describing the public’s demand for accountability); Mark H. Moore & Margaret Jane Gates, Inspectors-General: Junkyard Dogs or Man’s Best Friend 1 (1986) (noting “an unquenchable thirst for accountability that cuts across the political spectrum”); cf. Weaver, supra note 80, at 381 (describing “hard to vote against” legislation).
The Obama Administration’s frustration with Secretaries Hagel and Carter, for instance, is discussed supra notes 59-67 and accompanying text.
Yale Law School, J.D. 2017. I am grateful to Paul Gewirtz for his generous guidance on an earlier version of this paper. I would also like to thank Mark Chinen, Lara Finkbeiner, Jack Goldsmith, Becca Heller, Harold Koh, Noah Messing, Nicholas Parrillo, Jake Sullivan, Sam Thypin-Bermeo, and Camila YaDeau for their energizing conversations. Finally, my heartfelt thanks to Samir Doshi, Anthony Sampson, and Arjun Ramamurti for their thoughtful feedback and tireless work in editing this piece. Any errors are, of course, my own.