Executive power in a war without end: Goldsmith, the erosion of executive authority on detention, and the end of the War on Terror.

• Author: Hodgkinson, Sandra L.
• Position: Response to article by Jack Goldsmith in this issue, p. 11 - Symposium: Presidential Power and Foreign Affairs

Abstract

The post-9/11 world has provided an excellent environment to examine the reach of presidential power and the constraints placed upon it by Congress and the courts. Professor Jack Goldsmith argues that controversial Bush-era detention practices were "altered and blessed" by the Congress and courts "in ways that Barack Obama--seized of the responsibilities of the presidency--found impossible to resist." If there was such a "blessing," it was clearly in disguise. Notwithstanding, this piece largely endorses Jack Goldsmith's principal theory in his recent book Power and Constraint, and offers several other reasons for the erosion of executive authority in the area of detention issues. It also addresses this author's view that the War on Terror is not a "War Without End" at all, thereby limiting the executive's supposed "indefinite" ability to detain enemy combatants.

CONTENTS I. JACK GOLDSMITH'S ACCOUNTABLE PRESIDENCY II. ERODING EXECUTIVE AUTHORITY THROUGH THE NATIONAL SECURITY STAFFING PROCESS III. THE "WAR ON TERROR" IS NOT A "WAR WITHOUT END" IV. CONCLUSION The post-9/11 world and our War on Terror have provided an excellent backdrop to examine the breadth and scope of presidential power and the degree to which the Constitution, external influences, and constraints within the executive branch restrain this authority. Professor Jack Goldsmith describes the role that Congress and the courts played in ultimately paving the way for President Obama to endorse previously controversial Bush-era detention practices in his new book Power and Constraint. (1) He argues that "Congress and [the] courts pushed back harder against the presidency than in previous wars, in the process vetting, altering and ultimately blessing [President Bush's] core counterterrorism policies." (2) Goldsmith claims that by 2009 the policies had been "altered and blessed in ways that Barack Obama--seized of the responsibilities of the presidency--found impossible to resist." (3) Having held a front-row seat on this issue inside of the government during the challenging years from 2004-2009 and through the initial transition to President Obama's team, if there was a "blessing," it was clearly in disguise. This short piece will largely endorse Jack Goldsmith's principal theory and offer several other reasons for this erosion of executive authority in the specific area of detention issues. It will also address this author's view that the War on Terror is not a "War Without End" at all, thereby limiting the executive's supposed "indefinite" ability to detain enemy combatants.

1. Jack Goldsmith's Accountable Presidency

   Professor Goldsmith's new book Power and Constraint presents excellent insights into the extremely powerful role Congress and the courts played in shaping President Bush's detention policies from 2004-2009. The book also helps to explain how Guantanamo Bay remains open today. Two very different Presidential hopefuls, Senators John McCain and Barack Obama, both agreed in the 2008 election that it was imperative to our national security that we close the detention facility at Guantanamo Bay. (4) Yet, even after the 2012 election, Guantanamo Bay is not only open, but more durable than ever.

   Under Goldsmith's theory, Congress and the courts shaped and ultimately "blessed" these policies into something that President Obama could endorse. This author would argue the Supreme Court's blessings came in a round-about way; however, with every ruling against the Bush Administration on detention policy, there was some element of the policy the Court quietly endorsed.

   For example, in the early seminal detention case of Hamdi v. Rumsfeld, the Supreme Court determined that Hamdi, a U.S. citizen, had the right to challenge his enemy-combatant status before a neutral decision-maker. (5) In the Court's opinion, Justice O'Connor suggested that the proceedings used to determine status for prisoners of war set in the Army Field Manual (6) would have been sufficient in this case to satisfy this requirement. (7) This suggestion became the impetus for the more structured Combatant Status Review Tribunals (CSRTs), which were much closer to these Army Field Manual provisions. (8) While the Supreme Court effectively ruled against the Bush Administration in this ease, Justice O'Connor determined that the president could detain a U.S. citizen as an enemy combatant, (9) and supported his underlying legal framework authorizing detention under the laws of war.

   The 2006 Hamdan case (10) was another example of the Supreme Court's quiet support for the Administration's law of war framework. The Supreme Court ruled against the Bush Administration in determining that the President's Military Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War on terrorism, which established military commissions did not comply with Common Article 3 of the Geneva Conventions (11) and that the charge of conspiracy could not be tried under the laws of war (12) However, the Court did acknowledge that when the Authorization for Use of Military Force (AUMF) activated the president's war powers, this included the authority to convene military commissions. (13) the Court went on to explain, in significant detail and using historical war-time cases and authorities, how the military com missions established by the president's military order, as constituted, violated the international law of war (indicating that the commissions would be legitimate if they better compiled with the Geneva Conventions). (14) This was additional quiet support for the Bush Administration's position that the united states was in an armed conflict and that the law of war framework was appropriate. While the supreme court generated front-page news by repeatedly striking down aspects of the Bush Administration's policy, it quietly endorsed two critical centerpieces of that policy-law of war detention and the use of military commissions to try enemy combatants.

   Congress was more vocal in its support for the Bush Administration's policies than the Supreme Court. While there was certainly criticism coming from some members, (15) as a whole congress did try and provide the authority the administration needed to continue law of war detention and military commissions. First in 2005 following the Hamdi decision, congress passed the detainee Treatment Act, (16) which carried a provision stripping detainees at Guantanamo of any habeas corpus rights. (17) Later, Congress passed the Military Commissions Act of 2006 (18) to satisfy the Hamdan Court's ruling that military commissions were not a "regularly constituted court" under Common Article 3 of the Geneva Convention. Congress later supported the Obama Administration with the Military Commissions Act of 2009, (19) which added a few rights to individual subject to military commissions in line with the Obama Administration's policies. (20) As the Supreme Court quietly supported the executive's policies, and Congress overtly supported them, it became clear that the executive branch needed the support of the other two branches in order to accomplish its own detention policies. (Reasonable minds can differ as to whether this shows a weak executive or a strong system of checks and balances.)

   Apart from the role of the courts and Congress, it was actors within the executive branch that played a large role in moving policies forward. Several colleagues in key political assignments (21) advocated for changes from within the Bush Administration to make the detention policies more sustainable. Career government officials, who served in both the Bush and Obama Administrations, also focused on positive policy changes and over time became invested in the decisions and recommendations they had made. These personnel were a strong factor in continuing the policies across the two administrations. While there is a perception on the outside that U.S. detention policy was constructed and defended by hard core President Bush political appointees, the reality is that career officials throughout the departments played a large role in the evolution of these policies and many were ultimately convinced by the time the Obama Administration arrived that the policies had reached a decent balance between respect for human rights and due process and the need to protect our national security or were the least worst option. (22) Those who remained in place in the Obama Administration provided continuity of policy. As a career civil servant and reserve Navy JAG myself who worked the detainee issue at the National Security Council (NSC) staff, State Department and Defense Department during both Administrations, my own personal motivation for improving our detention policies into something sustainable was nonpartisan. It stemmed from a view that military detention must remain a legitimate tool for battlefield commanders in times of war. It helps to keep our enemies off of the battlefield and helps us to gather timely intelligence--both of which are essential to our national security.

   As a result of these...