Terror and the Executive
The war on terror is far from over. And if Americans needed any reminders, the last few months have certainly provided them. The dreadful massacre at Fort Hood, Texas, in November — in which a dozen soldiers and a civilian were killed by one of their own, who turned out to be a radical Islamist — emphasized the need to remain on alert against threats at home. The attempt to bring down a Detroit-bound airliner on Christmas Day — a plot that saw a wealthy, seemingly westernized Nigerian smuggle explosives in his underwear — revealed a series of intelligence failures and raised the question of how captured terrorists should be handled and interrogated. Several other threats and attempts have shown that the difficult tactical, legal, and political dilemmas George W. Bush faced in his effort to defend the nation will plague Barack Obama as well — regardless of how much the new president may wish to avoid them.
Bush's actions on this front were, of course, a subject of intense rancor and debate; they remain so more than a year after he left office. The continuing controversy has clearly influenced some of President Obama's policies, and the determination to distance himself from his predecessor has been evident in Obama's explanations of several key decisions — such as the continuing insistence on closing the Guantánamo Bay detention facility, and the treatment of the Christmas Day bomber as a criminal defendant.
Obama's approach certainly highlights the ways in which he and Bush differ — in their views and attitudes. But it ignores the crucial way in which they are similar: in their bearing of the unique responsibilities vested by the Constitution in the president of the United States.
Amid all of the squabbling, the true nature of these executive responsibilities has gotten lost. The Obama administration — and Americans more generally — would benefit from a serious re-examination of the Bush administration's approach to the legal and constitutional challenges of the war on terror, taken up with those responsibilities in mind. Such a review, if conducted neither in a spirit of defensiveness nor in an effort to settle old scores, would turn up critical lessons the Obama administration should take to heart.
CONSTITUTIONAL EMPATHY
The controversies surrounding the Bush administration's use of executive power in the war on terror revolved around three policy areas in particular: the detention of suspected illegal enemy combatants; harsh, coercive interrogation used to gain information about future threats; and the expanded use of electronic surveillance.
All of these policies are, of course, legitimate objects of concern. But to assess them, and their significance for America's constitutional order, we must start with a few questions that Bush's critics on this front have consistently failed to ask: Given the grave and unconventional threats posed by terrorism, what should the president do? What would "appropriate" detention, interrogation, and electronic surveillance look like? How can the president best strike a balance between his dual obligations: to protect the security of American citizens, and to safeguard their civil liberties? Each of these questions highlights the functions that are unique to the executive in our constitutional system.
Of course, our Constitution grants each branch of government some powers to intrude into the workings of the others, in an effort to check the abuse of authority. But it also vests each branch with a discrete purpose that is its own unique prerogative, and for which it is distinctively suited. In other words, judges judge, legislators legislate, and presidents execute.
This careful vesting of distinct powers means that, even though they may both enjoy the constitutional authority to do so, neither the Supreme Court nor the Congress should presume to overrule the president unless it can show that the president is not properly carrying out his executive responsibilities — and can also offer him a better way to meet those responsibilities.
Such judgments require constitutional empathy. Neither Congress nor the Court should overrule the president until it has fully acknowledged the genuine problems he faces — and the obligations those problems press upon him alone as the chief executive. In doing so, the deepest question both legislators and judges must address concerns whether or not the president is properly conceiving of his executive duty.
The executive's duty is to carry out general laws in particular circumstances, so that his special function is prudence: the exercise of shrewd, practical decision-making. This is the function he alone carries in our system of government. The Congress deliberates and produces broad rules. The Court analyzes actions in comparison to rules and judges their legality. The president acts in real time. While prudent action is necessary at all times to keep the government running, the essence of executive power is the capacity to address emergencies.
Fearful of tyranny, the framers did not give supreme power to the president. But they reluctantly concluded that threats to the safety and well-being of the republic would arise that would have to be addressed with the agility that only a lone decision-maker could provide. In 1787, there was no way that the nature and extent of all the threats America might ever face could be fully anticipated. It was therefore impossible for the framers to precisely define the limits of the powers the president would require to address them. Note that Article I of the Constitution limits the legislative powers of Congress to those "herein granted"; Article II, meanwhile, vests the president with the executive power — and the constricting words "herein granted" do not appear.
Wise and decisive applications of executive discretion — George Washington's Neutrality Proclamation, Andrew Jackson's Nullification Proclamation, Franklin Roosevelt's offer of destroyers to Britain — have proven critical to the survival of the nation (and, in FDR's case, of its closest allies as well). These are executive acts par excellence. And in judging the president's actions, Congress and the courts need to take into account the nature of executive acts and responsibilities.
Of course, the same empathetic constraint that should operate on the courts and Congress applies to the president as well. He should not act unilaterally just because he can. The president owes it to the other branches of government to minimize the degree of conflict between his obligation to execute and theirs to legislate and judge. Excessive unilateralism on his part may or may not rise to the level of unconstitutionality; but if it damages the president's relations with Congress and provides an excuse for judicial intervention, it is at the very least unwise.
An assessment of the controversies surrounding detention, interrogation, and electronic surveillance during the Bush years suggests that such failures of constitutional empathy abounded. No branch of government was wholly free of them; upon reviewing the evidence, however, the judicial branch emerges as the worst offender by far.
THE DETENTION DEBATE
Terrorists are not soldiers. They wear no uniforms, they fight for no state or nation, and they ignore the laws and customs of war. As a result, they are not automatically accorded the protections that various international agreements confer on traditional enemy combatants captured in wartime. And since it is often difficult to tell a terrorist apart from an innocent civilian, some innocent people are likely to be captured and treated as terrorists by mistake. Over the past decade, in a series of Supreme Court cases concerning the detainment of unlawful enemy combatants, the Court's majority has displayed considerable sympathy for these detainees — mandating that the government go to great lengths to avoid wrongful detention. But the Court has failed to show a similar appreciation for the cruel necessities of executive decision-making.
The 2006 case Hamdan v. Rumsfeld — which involved the Bush administration's establishment of military tribunals to try unlawful enemy combatants — offers a useful example. The subject of the case was a Yemeni man named Salim Hamdan, who had worked for Osama bin Laden for five years as a driver and auto mechanic, and was captured in Afghanistan in November 2001. According to the U.S. government, Hamdan had committed, sometime between 1996 and November 2001, four "overt acts" in furtherance of a terrorist conspiracy: acting as bin Laden's bodyguard and personal driver, transporting al-Qaeda weapons, accompanying bin Laden to various al-Qaeda meetings, and receiving weapons training at al-Qaeda-sponsored camps. In 2004, Hamdan became the first enemy combatant in the war on terror to be charged by a military tribunal — the procedural rules for which had been written by Bush Defense Department lawyers without any prior review by Congress.
Shortly after, Hamdan's counsel filed a writ of habeas corpus in federal district court claiming that the military tribunal had no right to try the Yemeni driver. Hamdan's lawyers argued that the tribunal's procedures were unlawful, and that the government had failed to show in either its charges or evidence that Hamdan had violated the laws of war. The judge who heard the case sided with Hamdan, but the Circuit Court of Appeals for the District of Columbia supported the government. Hamdan then appealed to the Supreme Court.
Before the high court, Solicitor General Paul Clement argued for the government that civilian courts were not appropriate for trying unlawful enemy combatants. Such detainees were not criminal defendants in the conventional meaning of the term, Clement said, and according them the full panoply of protections provided by civilian courts would hinder the war effort and place innocent lives in danger. In particular, a civilian trial could put prosecutors in a situation in which, in order to avoid exposing classified information, they would have to either allow defendants to go free or offer a lighter sentence — a dangerous prospect in the case of hardened Taliban or al-Qaeda terrorists.
Military tribunals, Clement contended, would allow for the use of classified information without endangering sources and methods. They would also allow for more inclusive rules of evidence. The government's position was that in a war — especially one with no clearly defined battlefields, waged against a transnational enemy that obeys no rules — the conventional standards of authentication and admissibility of evidence are simply too stringent to apply under all circumstances. Civilian courts, for example, reject testimony obtained through coercive methods. And yet how else can such testimony be obtained from terrorists? Clement argued that critical evidence that could protect the American people from dangerous attacks should not be excluded simply because it was obtained under these trying conditions.
The Court, however, was not persuaded. Although it did not declare military tribunals unconstitutional, the majority insisted that Congress put those tribunals on a sound statutory basis. The decision per se was sensible, but the reasoning behind it portended problematic future steps. Writing for the majority, Justice John Paul Stevens displayed a remarkable disregard for the nature of the war being fought — and hence for the president's responsibilities as commander in chief. Stevens found the military tribunals to be in violation of the Uniform Code of Military Justice, and argued that at least one provision of the Geneva Conventions — Common Article 3, which in part guarantees a "regularly constituted court" — applied to Hamdan. While Stevens found it problematic that Hamdan's military counsel would not have access to all the evidence against his client, the justice made no effort to consider whether allowing the accused or his civilian counsel to examine all the evidence might seriously damage national security (and endanger the lives of those providing the information). Stevens ultimately rested his views on a personal judgment of the severity of the risk presented by Hamdan, writing that there was no reason why "the danger posed by international terrorism, considerable though it is, should require, in the case of Hamdan's trial, any variance from the courts-martial rules." He also claimed that there was an "absence of any showing of impracticability" that could warrant deviation from the strict evidentiary rules of the court martial. Stevens made this incredible statement despite his knowledge that Hamdan came into American custody only because a bounty was paid to the warlords who captured him — and that anyone who could personally testify about the precise nature of Hamdan's services to al-Qaeda would be exposing himself and his family to terrorist reprisal.
Finally, Stevens found that Hamdan could not be considered a war criminal because the bulk of the time he spent as a member of al-Qaeda occurred before the war took place. For Stevens's purposes, the war began with either the terrorist attacks of September 11, 2001, or the Authorization for Use of Military Force, which President Bush signed into law on September 18, 2001. Since "all but two months of that more than 5-year-long period" in which Hamdan allegedly conspired with al-Qaeda preceded the attacks — and since "neither the purported agreement with Osama bin Laden and others to commit war crimes, nor a single overt act, [was] alleged to have occurred in a theater of war or on any specified date after" the September 11th attacks — Stevens ruled that "none of the overt acts that Hamdan [was] alleged to have committed violate[d] the laws of war." But as Justice Clarence Thomas pointed out in his dissent, there is no logical reason to require that a conspiracy to commit an act of war occur after the war has started.
The Hamdan decision is a blatant example of a failure of constitutional empathy. The Supreme Court failed to respect the duties of a president tasked with protecting the public, and also failed to discern the special exigencies of the war on terror. It wasn't long before these failures came to serve as harmful precedents.
The dangerous potential inherent in the majority's reasoning in Hamdan was fully realized in a June 2008 decision, Boumediene v. Bush. In that case, despite the fact that Congress had passed the Military Commissions Act of 2006 specifically to give the detainee program the statutory underpinning the Court had demanded, the Court still found a key part of the law to be unconstitutional. At the center of the case was Lakhdar Boumediene, an Algerian-born citizen of Bosnia taken into custody there in 2001 on suspicion of conspiring to bomb the American embassy in Sarajevo. After being moved to Guantánamo, Boumediene filed a writ of habeas corpus in federal court; the motion was denied because he was neither an American citizen nor being held on American soil. Boumediene again filed a petition — first with the Combatant Status Review Tribunal and then in federal court — arguing that his rights were being denied.
The Bush administration and Congress — responding specifically to Supreme Court decisions — had established, in the Detainee Treatment Act of 2005 and the Military Commissions Act, a process by which habeas corpus requests from Guantánamo detainees could be considered under special, restrictive rules in the U.S. Court of Appeals for the District of Columbia. But in 2008, the Supreme Court held that these procedures were still inadequate, and ruled in favor of Boumediene. Despite the fact that he was an alien being held outside the territorial bounds of the United States, the Court determined that Boumediene still enjoyed a full right to habeas corpus in American courts.
Justice Anthony Kennedy's majority opinion went to elaborate lengths to demonstrate the centrality of habeas corpus for safeguarding liberties. But it made no attempt to demonstrate either that the Constitution intended to include aliens under this protective umbrella, or that this protection applied outside American territory. Much of Kennedy's argument was devoted simply to showing that such an expansion of constitutional protections would not be excluded by the language of the Constitution or by previous court rulings — not that it was required. "It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution," Kennedy conceded.
Nevertheless, the majority found this lack of precedent to be "no barrier" to the Court's conclusion — because the cases under consideration themselves were unprecedented. Although Kennedy acknowledged that, in principle, there could be extenuating circumstances that would make such an extension of the reach of habeas corpus imprudent, he found no such circumstances in the case of Boumediene. Despite pleas from the solicitor general citing the national-security risks that could result from the Court's siding with Boumediene, Kennedy substituted his own quasi-executive judgment to find that "The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees' claims."
The minority opinions issued by Chief Justice John Roberts and Justice Antonin Scalia were scathing in their condemnation of the majority's presumption that judges should make executive decisions. Roberts noted that the immediate practical impact of the ruling would be minimal, because the exigencies of the situation would force the federal courts to embed habeas corpus in a set of special procedures that would end up looking a lot like those already prescribed by Congress. The real damage caused by the decision, Roberts said, would be not to the justice system per se but to the larger constitutional order — taking power away from democratically accountable executives and legislatures and giving it to non-accountable judges. "This decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants," Roberts argued. "All that today's opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary."
Justice Scalia, meanwhile, explained that the different competencies of the different branches are an integral part of the Constitution's separation of powers. Judges should not presume to make executive decisions for which they do not have the skills, training, knowledge, or experience (let alone authority). While the majority found "no credible arguments the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees' claims," Scalia summed up the case against judicial aggrandizement by asking: "What competence does the Court have to second-guess the judgment of Congress and the President on such a point?"
Scalia is right. But there is no question that some of the blame also falls on the Bush administration — which created the circumstances for this failure of constitutional empathy through its own failure of constitutional prudence.
As misguided as the decision in Boumediene was — and as dire as its constitutional implications may turn out to be — the decision might never have been rendered in the first place had the Bush administration taken a more politically (and constitutionally) astute approach to Congress regarding detention policy. Bush had no strong reason to expect that a statutorily defined detention program would excessively limit his executive discretion; by and large, Congress gave him most of what he asked for in fighting the war. Nonetheless, rather than working with Congress to get his approach enshrined in written law, Bush chose to forge detainee policy almost entirely on his own. His administration turned to Congress only when ordered to do so by the Supreme Court, and after the detainee question had already fueled harmful hostility among the governing branches.
The Bush administration's response to the 2004 Supreme Court case Hamdi v. Rumsfeld illustrates the problem well. After the Court announced that it would review the case of Yaser Hamdi — a U.S. citizen who was captured in Afghanistan in 2001, and who later claimed he was being unlawfully imprisoned at a naval brig in Virginia — Attorney General Alberto Gonzales called a meeting of administration lawyers to review the government's position. Jack Goldsmith, who was then head of the Justice Department's Office of Legal Counsel (OLC), reports in his 2007 book The Terror Presidency that he suggested that the administration's position could be strengthened by asking Congress to formally approve the detainee program. Goldsmith says he was supported by the representatives of the solicitor general, the State Department, and the Defense Department present at the meeting. But they were opposed by Vice President Dick Cheney's counsel, David Addington, who ended up winning the argument. "Addington's hard-line nonaccommodation stance always prevailed when the lawyers met to discuss legal policy issues in Alberto Gonzales' office," Goldsmith writes. He adds:
Addington would always ask two simple questions whenever someone proposed that the White House work with Congress to clear away a legal restriction or to get the legislature on board: "Do we have the legal power to do it ourselves?" (meaning on the president's sole authority), and "Might Congress limit our options in ways that jeopardize American lives?"
These are reasonable questions, of course. But they fail to account for the legitimate role of the legislature in establishing the rules by which the executive branch carries out its executive authority — as well as for the simple prudence of involving the other political branch in such an important set of decisions. The Supreme Court overruled the government's refusal to grant habeas corpus to Hamdi — and later ruled in Hamdan against its whole detainee program — not on constitutional grounds, but because of the program's lack of statutory underpinning. After these decisions, the executive did indeed obtain congressional approval for the detainee program, but from a considerably weaker position. Had Congress been involved in the program's design from the beginning, the Supreme Court would have faced a much less propitious environment in which to declare the heart of the program — the denial of habeas corpus to unlawful enemy combatants — unconstitutional. The Court would have had to assert its constitutional basis against the united front of the other two branches, both clearly carrying out their own responsibilities.
There is no reason to doubt the sincerity of Addington's concern about the administration's freedom of action and the possibility of jeopardizing American lives. But for him, and for others in the administration, these worries seemed to be channeled through their commitment to a doctrine of executive authority that did not, in the end, serve the president well.
Addington and others reasoned that since the vesting power in Article II of the Constitution permitted the administration to respond to terrorist threats and attacks in whatever ways it deemed necessary, seeking support from Congress for those measures would needlessly impede Bush's effort to keep Americans safe. Even if Congress was certain to support the administration position — or, at worst, make only marginal changes — involving Congress would set the precedent that the administration ought to seek congressional approval. It would therefore constrain the Bush administration, and future administrations, from acting unilaterally on occasions when American lives might be in danger and congressional approval might not be forthcoming.
Whatever the merits of this position, it was inattentive to both the reality of politics and the separation of powers set forth in the Constitution. Denying Congress and the Court an opportunity to intervene in America's response to the September 11th attacks in no way guaranteed that they wouldn't intrude anyway. And the likelihood of such intervention could only be increased by ostentatious adherence to a theoretical understanding of the Constitution that a majority of Supreme Court justices were unlikely to share. Addington, who proved to be the authoritative voice of the Bush administration on this matter, failed to recognize the extent to which this effort to preserve the presidential prerogative served to undermine the actual power of the president — because it invited, and even facilitated, Supreme Court intervention. Being right is often not as useful as being shrewd, and in the matter of presidential power in the war on terror, being shrewd sometimes means protecting executive power by respecting the power of Congress to define the rules of the game.
THE DILEMMAS OF COERCIVE INTERROGATION
Unlike the question of the detention of unlawful enemy combatants, the Bush administration's coercive interrogation techniques have not become the subject of major litigation. The leading critics of those methods have therefore been law professors, academics, and journalists. While not possessed of governing power themselves, these critics do seem to hold increasing sway over the thought and actions of the current administration and Congress. It is therefore important to evaluate the merits of their dissent, and its implications for our understanding of the executive's proper role.
Like the Supreme Court majority in the detention cases, critics of coercive interrogation have shown little (if any) regard for the unique pressures and demands the executive faces in times of war. They have failed to offer an alternative to the policies they excoriate — an approach that would better reconcile national-security needs with a humane consideration for the well-being of detainees. Moreover, the critics' bandying of the word "torture," the sheer rhetorical power "torture" carries, and serious disagreement about what tactics "torture" encompasses have all tended to preclude any serious consideration of what interrogation methods are appropriate for extracting valuable information from recalcitrant terrorists.
The resulting confusion has been a real obstacle to clearly defining the president's proper role and authority on the matter of terrorist interrogations. Setting the "torture" bar too low unnecessarily constrains the executive. But setting the bar too high — assuming that all manner of controversial interrogation techniques can be carried out simply because the president says so — risks failing to uphold the executive's proper responsibility, and exposes executive power to intrusion and assault.
Some critics of the Bush policies point out that the United States is a signatory to the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and should therefore be bound by its terms. But the definition of torture in the convention — "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person" to obtain information — is hopelessly vague, and subject to widely varying interpretation. By the strictest reading of the convention, routine actions taken by American correctional institutions — such as lock-downs and solitary confinement, or indeed any form of long-term confinement — could be called torture, as such measures no doubt inflict what some would describe as "severe" mental suffering on at least some of the people subjected to them. One could hardly expect a wartime executive to adhere to this absurd standard.
At first, the Bush administration answered these critics with a definition that was much too narrow — limiting the "torture" label to any practice that is "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." This definition shocked the conscience of much of the legal and journalistic community, and even the Justice Department soon concluded it was inadequate. In late 2004, the administration withdrew the definition and established a more restrictive set of criteria. The modified definition of "torture" was laid out in a detailed 17-page memo, but it did little to quiet the chorus of criticism. The charge of torture continued to be thrown around routinely.
Yet despite errors on both sides, the chief problem, again, was the failure of critics to grasp the serious responsibilities that are unique to the presidency. On April 16, 2009, the Obama administration released four OLC memos — one written in 2002 and three in 2005 — that had provided guidelines to the Central Intelligence Agency regarding the conduct of coercive interrogation during most of the Bush years. The ensuing flurry of coverage and commentary served to highlight the inadequacy of the debate about interrogation techniques. The New York Times article on the subject, for instance, ran under a headline reading: "Memos Spell Out Brutal CIA Mode of Interrogation"; by contrast, the Los Angeles Times entitled its story: "Memos Reveal Harsh CIA Interrogation Methods." The difference between "brutal" and "harsh" is, of course, exactly the question at the heart of the argument.
Yet critics of the Bush administration's policies have shown a remarkable lack of interest in such distinctions. In its list of "brutal" interrogation methods, the New York Times included slapping a detainee in the face. The Times also exaggerated the level of harshness involved in interrogations by selectively excerpting from the memos; left out were sections describing the range of extensive precautions taken by interrogators to prevent pain and injury to detainees.
Indeed, the lengths to which American interrogators went to avoid serious risks to their subjects is evident even in the case of one indisputably harsh technique outlined in the memos — waterboarding. One of the memos describes the technique this way:
The detainee is lying on a gurney that is inclined at an angle of 10 to 15 degrees to the horizontal, with the detainee on his back and his head toward the lower end of the gurney. A cloth is placed over the detainee's face, and cold water is poured on the cloth from a height of approximately 6 to 18 inches. The wet cloth creates a barrier through which it is difficult — or in some cases not possible — to breathe. A single "application" of water may not last for more than 40 seconds...
According to the memo, waterboarding inflicts no pain but does provoke dreadful fear, as it induces the perception of drowning. The memos made clear that the technique should be employed only if "(1) the CIA has credible intelligence that a terrorist attack is imminent; (2) there are ‘substantial and credible indicators the subject has actionable intelligence that can prevent, disrupt or delay this attack'; and (3) other interrogation methods have failed or are unlikely to yield actionable intelligence in time to prevent the attack." The memos went on to say that prior to waterboarding, detainees would be placed on a liquid diet to reduce the risk of vomit-induced suffocation and that special conditions would be met to mitigate the risk of pneumonia and spasms of the larynx. Sessions would be limited to two per day, and a physician and psychologist were to be present at all times.
These details did not make it into the Times article, either. Nor were they present in much of the public debate, which was marked by self-righteous absolutism. The Times entitled its editorial on the OLC memos "The Torturers' Manifesto," and compared the authors of the memos to "dungeon masters throughout history." But among the critics, few made any serious attempt to answer the two questions about interrogating suspected terrorists that intelligence officials are obligated to ask: "How should I determine whether a proposed method is torture or not?" and "Does the proposed coercive but non-torturous method offer good prospects of producing useful intelligence?" Nor was any alternative approach — one capable of addressing these two questions to the critics' satisfaction — put forward. This was, again, a failure to empathize with the heavy responsibility of the executive. The very notion of a president's seeking the line between acceptable methods and torture — of finding some balance between terrorists' well-being and the need to protect American lives — was denounced as immoral.
Further complicating the interrogation dilemma is the fact that both proponents and critics of the Bush administration's methods claim to have evidence demonstrating, respectively, that such techniques are or are not effective in eliciting useful information. But all they can present are anecdotes: Each side has been able to find former intelligence officers who will attest to either the success or failure of these methods. Admittedly, conducting a reliable empirical study of these matters is both ethically and practically challenging. And the situation has only been made worse by the selective manner in which classified material related to coercive interrogation has been dealt with by President Obama. His administration released the memos pertaining to OLC guidelines for coercive interrogation, but has refused former Vice President Cheney's request to release information that, he claims, would demonstrate the critical contribution of these interrogations to the war on terror.
The murk surrounding interrogation — the lack of a clear definition of "torture"; confusion over whether a particular method crosses the line; and uncertainty about whether coercive methods are effective in the first place — has emboldened Bush critics, who seek to constrain more severely a president's authority in this arena. But if anything, the lack of clear standards for either moral or legal judgment places this matter well outside the competencies of either judges or legislators — particularly when time is of the essence. The matter calls for the distinctive competence of the executive: the capacity to act decisively and quickly in the face of grave uncertainties, when the costs of inaction outweigh the benefits of spending more time trying to reduce those uncertainties.
This does not mean, of course, that the executive can do no wrong in such circumstances. But it does mean that before critics seek to undermine the executive's authority and judgments, they must first put themselves in his shoes, and be able to offer alternatives that still meet his obligations in our system of government. If no better approach can be found that respects the president's authority over this matter, then it is perhaps best to leave well enough alone.
ELECTRONIC SURVEILLANCE
Although the controversies over detention and interrogation are not entirely without precedent in our history, they had not received much congressional, judicial, or public attention for many decades prior to the attacks of September 11, 2001. Electronic eavesdropping by the executive branch, however, has been the subject of great congressional and judicial concern for at least the past four decades. Enacted in 1978, the Foreign Intelligence Surveillance Act (FISA) grew out of concern that our intelligence agencies were using modern electronic surveillance techniques to violate the privacy of Americans. The concern was not without merit: It originated with revelations that the Nixon administration had used intelligence assets to spy on domestic political and activist groups. In response, the law severely restricted the power of the federal government to use electronic surveillance to track the activities of Americans, and created a special court from which the executive branch must seek permission for such surveillance.
The questions surrounding electronic surveillance exploded again into public view in December 2005, when the New York Times reported that the Bush administration was conducting warrantless wiretaps on telephone conversations between callers in the United States and callers overseas believed to be associated with terrorist activity. Many observers claimed that the program was an abuse of executive power, and an especially egregious one at that: FISA, after all, gave the president a legal means of obtaining permission to conduct electronic surveillance of certain calls. Prior to the September 11th attacks, these critics observed, the FISA court had granted virtually every request for a warrant. And yet the Bush administration had chosen to go ahead with its surveillance program without bothering to seek such warrants.
For its part, the administration argued that the September 11th attacks had transformed the nature and purposes of electronic surveillance. The key intelligence objective was no longer tracking the communications of foreign agents, but identifying patterns that might point to the existence and activity of such agents. By using various algorithms as filters for sifting through millions of phone calls, intelligence officials hoped to discover who in the United States was speaking to which suspected terror organizations. Technological changes had made this pattern, rather than the substance of any particular phone call, the critical surveillance target — and the very same technologies available to telemarketers and phone companies now proved to be of enormous value to counterterrorism officials. But in order to obtain a warrant to conduct surveillance under the FISA statute, the administration would have had to show probable cause that the surveillance target was an agent of a foreign power. If a party to the call was an American citizen or permanent resident, then the warrant also had to show possible involvement in a crime. Although this probable-cause standard was less stringent than the one applied to ordinary eavesdropping warrants, it was wholly at odds with what the data-mining approach to electronic surveillance was designed to accomplish.
Thus the serious issue raised by the electronic surveillance program was not that it was "warrantless" — because no plausible means existed then to make it warrantable. Rather, the question was — and remains — whether discovering who on American soil is in contact with known terrorist organizations is a sufficiently worthy objective to allow the government to conduct the kinds of data-mining activities routinely engaged in by private firms.
The surveillance debate highlighted again the degree to which our understanding of the president's prerogatives has become detached from the reality of his role in our constitutional system. But it also offered an example of the way in which Congress, properly informed and consulted, can cooperate with the president in allowing him to do his job. After the program's existence was leaked, and in the midst of fierce public debate about its propriety, the Bush administration worked with Congress to develop a new FISA statute that gave the administration more latitude in using modern technology to track patterns of activity that might point to terrorist threats in the United States.
This statute, like the arrangements put in place regarding the detention and treatment of terrorist suspects, remains on the books and available to President Obama. But of at least as much benefit to his administration as the institutions created by the difficult trial and error of the past decade is the experience of the Bush administration — which offers a lesson in the need both to stand up for the special role and responsibilities of the executive and to respect those of the other branches of government. That lesson does not translate automatically into specific prescriptions, but it highlights the enormous difficulties that confront the presidency in this new kind of war — difficulties that should lead outsiders to be sympathetic, though surely not uncritical.
THE PRESIDENT AT WAR
This qualified defense of the Bush administration's exercise of executive power in the war on terror is rooted in the most powerful of all defenses of energetic government, that offered by Alexander Hamilton in Federalist No. 23: "[T]he means ought to be proportioned to the end; the persons, from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained."
The president, as commander in chief, is the person responsible for achieving the end of protecting the nation from the threat of terrorist attack; detention, interrogation, and electronic surveillance are the vital means by which that end is to be attained. Of course, the president's obligations do not exempt him from his duty to employ those means responsibly. But they do place the burden of proof on his critics, who must show that there are other, better means of safeguarding the American people. In the case of the Bush administration, most critics failed to meet that requirement.
The absence of such a compelling alternative impels a greater appreciation of Bush's achievement. For seven years after September 11, 2001, there were no major deadly terror attacks on American soil. This national-security success was accomplished with only very mild curbs on civil liberties — especially when compared to the draconian policies of previous wartime presidents (Abraham Lincoln's suspension of habeas corpus, Woodrow Wilson's Red Scare, or Franklin Roosevelt's internment of Japanese-Americans, for instance). Opposition to the war was unrepressed — indeed it was downright fashionable. Any egregious examples of government abuse or misconduct (most notably the treatment of prisoners at Abu Ghraib prison in Iraq) were investigated, and, when sufficient evidence was produced, the perpetrators were punished. All the while, a heated and lively debate about the conduct of the war raged both inside the government and in the public arena.
Although it involved some crucial and costly errors by the president, Congress, and the courts — and although it often involved deep divisions and discord — this is, for the most part, a story of success. And in both its successes and errors, the story has much to teach the Obama administration.
President Obama has not been deaf to these lessons, of course. He has, for instance, asserted essentially the same authority to detain terrorist suspects as Bush did, supported and signed a new Military Commissions Act that reinforces the Bush administration's approach to trying captured terrorists, argued that military commissions should be part of the government's war power, and staunchly opposed giving suspects detained in Afghanistan the rights that the Supreme Court has extended to those held in Guantánamo Bay.
But while Obama has continued to claim these legal rights, he has been more reticent to exercise them. The administration has chosen, for example, to treat the Christmas Day bomber captured in Detroit as a criminal and not a terrorist, and has sought to try September 11th mastermind Khalid Sheikh Mohammed in a civilian criminal court rather than by military commission. Obama has also banned waterboarding and some other coercive techniques permitted in the Bush years, and continues to insist that he will close down Guantánamo's detention center.
In this way, Obama has tended to keep the legal framework for the war on terror largely unchanged, while departing significantly from Bush in his practical decision-making. These judgments are of course Obama's prerogative as president; for good or ill, he will be answerable for them. But even if he does not agree with many particular decisions of the Bush years, he seems perhaps to have taken to heart the imperative of guarding the president's unique authority and responsibility — and to appreciate the heavy burden that our Constitution vests solely in the executive.
