So concludes constitutional law and national security scholar Philip Bobbitt, in an email comment to Ben Wittes at Lawfare. Bobbitt is responding to Wittes’ post on a Awlaki-targeting question raised at Lawfare, here at OJ, and at Volokh, as well as in an opinion piece this morning by the New York Times public editor, Arthur Brisbane. Bobbitt here criticizes the policy, as I put it earlier, of conducting “foreign policy-by-leak.” Here’s a little bit more of the comment, but I commend the whole thing to you at Lawfare.
This is related to what used to so irritate me about the Bush signing statements. I didn’t have a problem with the substance—that a president can refuse to enforce statutory language he deems unconstitutional—but rather with the fact that the statements were little more than boiler-plate repetitions of that general point. The president’s not explaining his position is rather like an appellate court saying to the parties to a dispute, “You win. You lose. Let’s have lunch.”