Threats are scary. When they are real we should, of course, as a Nation address them, with force if necessary. When they are not, however, they should be exposed as what they are before the use of force. But, as the Iraq War experience demonstrates most recently, the fact checking that is essential to ensure the accuracy of executive department threat claims is not happening. Rather, a pattern has developed whereby Presidents persuade the Nation to consent to the use of force based upon threat claims for which they are effectively unaccountable until after the decision has been made. (1) Although presidents may legitimately advocate persuasively in support of their chosen policy, the Constitution identifies the people, through Congress, as the ones who must decide whether the president's choice is the right one. (2) That presidents can routinely make threat claims without contemporaneous accountability represents a failure of democracy in the use-of-force decision making and oversight process, since informed consent requires that the decision makers understand at least the basic facts upon which the President's proposed policy is based.
Part I sets out the experience of the last Administration's use of inflated threat claims to persuade the country to consent to the use of force in Iraq. Against this backdrop, Part II compares the current President's use of threat claims and the effectiveness of the mechanisms for fact checking his persuasive advocacy in support of the use of force in Afghanistan. Although the comparison must be imperfect, it supports the observation that, while different office holders may make different choices, the structures and incentives that have in the past allowed executive branch officials to assert unverified threats as certain and sufficient to justify the use of force have not changed significantly. While certain types of legal reforms could help to impose accountability on executive branch actors who make threat claims, they are both unlikely to be enacted or, if enacted, to be effectively enforced, at least in the short term. In response to this reality, Part III proposes that some progress toward the elusive goal of effective democratic use of force decision making can be achieved by approaching the problem of potentially inflated executive department threat claims from the other side of the communication exchange. Several key recognitions about the nature of use of force advocacy and the secret intelligence information that executive branch actors may offer to support it, and about the incentives of surrogates who can help interpret what that information means, can help shore up listener defenses to government speech, and specifically threat claims, and thereby bolster the contemporaneous accountability of use of force advocacy.
USE OF FORCE ADVOCACY, THREAT CLAIMS AND THE LACK OF CONTEMPORANEOUS ACCOUNTABILITY BEFORE THE IRAQ WAR
The Iraq War experience illustrates the government structures, incentives, and behaviors that now unite in "perfect storm" combination to lead to the result that executive branch actors can make threat claims in support of the use of force for which they are effectively unaccountable until after the policy choice is made.
Aggressive and Persuasive Use of Threat Claims in Support of the Use of Force. Modern presidents exist at the center of increasingly massive, multi-faceted communications machines. (3) Although one purpose of executive branch communications is to provide information to the public, a fundamental unabashed purpose is to advocate for the President's policies. Engaging in persuasive government speech is a crucial component of the exercise of any President's constitutional authority. The President enjoys an advocacy advantage over any other communicators in the Nation, and, arguably, the world. He is a single person, and can coordinate executive branch messages. (4) He has a vast staff to keep track of the many sources of information dispersal and to keep them in line. Although one-sided and aggressive, persuasive presidential speech is a legitimate and appropriate tool for governing because the President, like other government speakers, operates under a democratic mandate to implement policies through all legal and effective means, including speech, and he is accountable to those he governs for the content of his speech. (5)
The President bears the constitutional responsibility to discern threats to homeland security and to address them. (6) Like all actions of a democratic government, the use of force should occur with the consent of the governed to the President's proposed policy, informed by an understanding of the facts that support the choice. Consequently, Presidents may legitimately and appropriately advocate that immediate and grave threats to homeland security exist for the purpose of persuading those he governs to consent to the use of force.
In the year before the Iraq War, President Bush, in combination with others in his Administration, used threat claims as the primary component of a strategic and coordinated communications campaign to build consent to his policy choice to use force. These communications included formal speeches, (7) media interviews, (8) congressional briefings, (9) and documents delivered to Congress and released publicly. (10) In these communications, executive branch officials repeatedly asserted as true that the Iraq (1) possessed the weapons capacity to pose an actual and immediate threat to the security of neighboring nations and the United States; (2) possessed means of delivering the existing weapons into neighboring countries, and perhaps into the United States; (3) was inclined to attack other countries, including the United States; and (4) was offering support, including weapons, to nonnation terrorist organizations, including al-Qaeda, which perpetrated the September 11, 2001 attacks. (11) Various sources have compiled the hundreds of these types of threat claims made by Bush Administration officials during the lead-up to the Iraq War. (12) Examples include the following:
The Iraqi regime possesses biological and chemical weapons, is rebuilding the facilities to make more and, according to the British government, could launch a biological or chemical attack in as little as 45 minutes after the order is given .... This regime is seeking a nuclear bomb, and with fissile material could build one within a year. (13) Simply stated, there is no doubt that Saddam Hussein now has weapons of mass destruction. There is no doubt he is amassing them to use against our friends, against our allies, and against us. (14) We know that Iraq and al Qaeda have high-level contacts that go back a decade .... We've learned that Iraq has trained al Qaeda members in bomb-making and poisons and deadly gases. (15) The Iraqi regime ... possesses and produces chemical and biological weapons. It is seeking nuclear weapons.... We could wait and hope that Saddam does not give weapons to terrorists, or develop a nuclear weapon to blackmail the world. But I'm convinced that is a hope against all evidence. (16) Additionally, executive department advocates strategically planned their rhetoric and presentations to make use of "gripping images," such as the "smoking gun" that might be a "mushroom cloud," (17) the lump of material "a little larger than a single softball" that could become a nuclear weapon, (18) and the vial of "anthrax" wielded by Secretary of State Colin Powell to illustrate the claims made in his United Nations Security Council speech. (19)
The Bush Administration presented facts about threats posed by Iraq for the purpose of influencing the public discussion and conclusions about the policy the President advocated and sought to have the Nation embrace. By presenting threats posed by Iraq as actual, imminent, and potentially directed at the homeland, the President and his advisors were able to argue that war was a necessity not a choice. (20) By means of threat claims, the Administration was able to present the justifications for war as simple and concrete, (21) and in terms that invoked patriotism (22) and emotions, (23) all important elements to garnering public support for a complex and costly foreign commitment.
The Bush Administration's threat advocacy was designed to build consent to the use of force and it did so. A chart produced in a House Report records the number of statements about the Iraq threat made by executive department officials sharply peaking in the several weeks before Congress voted to authorize the President to use force. (24) The Report of the House Committee on International Relations explained that it embraced the executive branch's factual assertions about the Iraq threat and based its recommendation that the body vote to authorize the use of force upon it. (25) Individual House Members and Senators who had initially expressed reluctance to consent to the use of force explained their votes in favor as based on their belief that the threat claims advocated by the executive department were true. (26) Following the October 2002 votes by Congress to authorize the use of force, (27) the executive department continued to engage in advocacy about the threat posed by Iraq. The President used his January 2003 State of the Union address as a platform to advocate the multiple threats posed by Iraq, (28) and in his February address to the United Nations Security Council, Secretary of State Colin Powell presented detailed threat claims to the world. (29) Public opinion polls indicate that these advocacy efforts moved public opinion in favor of the use of force against Iraq. (30) In particular, public support for the use of force in Iraq correlated with believing executive department threat claims. (31)
We know now that these threat claims were not true. (32) Instead, Congress and the American people gave their consent to use of force in Iraq based at least in significant part upon inflated...