How Courts Took Over The War On Terror

Exclusive excerpts from the afterword to the paperback edition of The Terror Presidency.

Conventional wisdom holds that the Bush administration expanded the legal war powers of the presidency in unprecedented ways. In fact, because of the unusual nature of the enemy, changes in the legal culture, and blowback against Bush’s early assertions of unilateral power, the President’s war powers became more constricted by law in the past eight years than ever before. There are many ways of making this point, but I will focus here on Congress and the courts.

Congress screamed loudly when President Bush asserted powers unilaterally, but got on board (on issues ranging from military commissions to habeas corpus to warrantless wiretapping) when forced to a vote. But we should not let these approvals overshadow the fact that when Congress said “yes” to President Bush’s requests, it did so in ways that were more restrictive of presidential power than during previous wars.

The 2006 law that approved military commissions, for example, contained scores of unprecedented procedural guarantees for suspected terrorists and related legal restrictions that never burdened the many past presidents who used military commissions without special dispensation from Congress and with extremely informal procedures. Similarly, Congress eliminated habeas corpus review of GTMO detentions in 2006, but at the same time it established a different and unprecedented form of judicial review of the President’s detention determinations.

It’s the same story on surveillance. Despite the new powers that Congress gave the President in 2008, the President is still much more constrained in his ability to monitor suspected enemy forces than past war presidents. One area where Congress expressly pushed back against the President concerns interrogation. Today the military and the CIA are barred from using techniques that were thought to be consistent with the Geneva Conventions and available to the Executive branch as recently as the 1960s. The President’s interrogation powers, like most of his other military powers, are more constrained by law than at any time in American history.

Courts have been much more aggressive than Congress in pushing back against presidential prerogative. “Never in American history had the [Supreme] Court tried in any significant way to interfere with a war in progress,” wrote Arthur Schlesinger Jr. in his 1973 book The Imperial Presidency. But this changed after 9/11. Commanders in chief before President Bush detained enemy forces without charge or trial and without judicial scrutiny. Since 9/11, courts have taken ownership of the issue.

The Supreme Court for the first time ruled that the Constitution’s guarantee of “due process of law” – a fount of judicial creativity – applies to the President’s military detention powers. The Court also concluded for the first time in our history that terrorists warrant Geneva Convention protections. It also reversed a fifty-year old precedent written by the beloved Robert Jackson in the course of extending, for the first time, constitutional habeas corpus rights to alleged enemy combatants captured and detained outside the United States. And it did so while invalidating, again for the first time in our history, a military measure – the 2006 statute that stripped habeas corpus review of GTMO detainees – that had the support of Congress and the President. The Court has further suggested that alleged terrorists deserve unprecedented access to lawyers, witnesses, and classified information, adding that “more may be required.”

Today, lower courts are busy crafting U.S. terrorist detention policies, extending habeas corpus jurisdiction to all corners of the world and deciding as a matter of constitutional law which suspected terrorists can be detained, how much and what kind of evidence and procedures are necessary to detain them, how long they can be detained, and who must be released. The political branches have traditionally been responsible for making the hard liberty/security trade-offs that inhere in these decisions because they have more information than judges and must face the electorate if they get the trade-off wrong. But now judges neither expert in national security nor politically accountable are making these choices. And they are doing so without the self-restraint that traditionally prevailed in national security cases. To the contrary, in terrorism cases since 9/11 courts have watered down rules of executive deference, made unprecedented demands for Executive branch information, and insisted that judges have the last say. In this and many other ways, the last eight years have witnessed a sharp shift of war power from the president to courts.

These developments are not necessarily bad. As I argued in The Terror Presidency, adjustments to traditional war powers were needed because of the unusual nature of this war (most notably, its length and the fact that the enemy does not distinguish itself from civilians). And bringing law and judicial review to bear on presidential action – especially in an era of indefinite war against an unusual enemy – can legitimate such action, prevent self-defeating abuses, and leave the president in a stronger position. The problem is that these checks can also go too far and do more harm than good. It is impossible to know for sure if they have gone too far unless and until we suffer a second attack and the next investigating commission winds back the clock to discover its causes. But I worry that if this happens, the commission will view the institutional reactions to President Bush’s counterterrorism policies as a cure worse than the disease, a cure that made it harder for future presidents to keep us safe.

Excerpted from The Terror Presidency: Law and Judgment Inside the Bush Administration by Jack Goldsmith. Copyright (c) 2007 by Jack Goldsmith. With permission of the publisher, W.W. Norton & Company, Inc.