Just as Gaul was divided into three parts, so too judges and constitutional lawyers interested in national security tend to fall into one of three broad camps:
(1) Executive unilateralists, who believe that courts and legislatures do and should defer heavily to the executive during wars and emergencies. Our book, Terror in the Balance, stakes out this view, which has only a few other defenders in the legal academy.
(2) Democratic process theorists, who are most worried about the separation of legislative and executive powers, and who want above all that executive action during emergencies should be authorized by Congress. (A variant of this view is Bruce Ackerman’s proposal for a “framework statute,” to be enacted before the next attack, that would structure executive emergency powers). For democratic theorists, the central text is Justice Robert Jackson’s concurrence in the Steel Seizure case, which suggests that the president’s powers are at their high-water mark when he acts with congressional approval, and at low ebb when he acts against congressional instructions.
(3) Civil libertarians, who typically want courts to examine emergency action to ensure that it does not violate constitutional rights.
Of course, many civil libertarians want two filters on executive action during emergencies, not just one; they want emergency action both to be authorized by statute and also to be rights-respecting. However, what makes the second and third camps distinctive is that the democratic process theorists think that clear congressional authorization is typically sufficient for the executive to act lawfully during emergencies, while civil libertarians think statutory authority is only a necessary prerequisite, and that protecting rights is independently important. These positions are just ideal types – many theorists and judges blur the differences, arguing for example that congressional authorization is sufficient for some emergency actions but not for others, depending on the nature of the right involved – but they are useful for understanding the intellectual and political dynamics.
Before the Military Commissions Act of 2006, the executive-unilateralist camp often found itself opposed by a coalition of the democratic theorists and the civil libertarians. Some of the most controversial components of the Bush Administration’s anti-terror policies – particularly the use of military tribunals to try offenses against the laws of war – were at least not explicitly and directly authorized by statute, and may even have been prohibited by statute; thus the democratic theorists and the civil libertarians found themselves on the same side of these issues. Some objected to the lack of congressional approval (or indeed prohibition), some to the civil-liberties implications, some to both, some objected to the lack of authorization while explicitly or implicitly reserving the further questions about civil liberties, and some may have strategically advanced the lack-of-authorization objection as a more neutral and technical-seeming cloak for their civil-libertarian views.
The Military Commissions Act threatens to split this coalition. It gives clear statutory authority for a policy that threatens civil liberties, principally by narrowing the courts’ authority to review the proceedings and outcomes of military trials. Consider Justice Breyer’s concurrence in the recent Hamdan case, in which a plurality held that the administration’s order for military commissions was prohibited by statutes creating and regulating the court-martial system, combined with international treaties. Breyer’s concurrence was joined by three other justices, giving it as many votes as the “lead” opinion in the case, a plurality opinion authored by Justice Stevens. Breyer described the ruling as an exercise in democracy-forcing, suggesting that the judges wanted the President to consult with Congress, and that the Nation could and should deal with the danger of terrorism through “democratic means” – that is to say, legislation. Well, Congress and the President did consult, and Congress ended up giving the President 95% of the authority he sought. The Act is now being challenged on constitutional grounds in the federal courts – the principal challenge being that the Act strips the courts of their constitutionally protected power to issue writs of habeas corpus. What will happen in the next round of litigation and academic commentary?
Perhaps Breyer and all the other democratic theorists will turn out to be two-filter civil libertarians, for whom statutory authority is necessary but not sufficient. On the other hand, one can easily imagine Breyer and Stevens going their separate ways, with the former providing a decisive vote to uphold all or most of the Act on the ground that the democratic process has done its work, while the latter presses substantive constitutional objections, albeit in dissent. A similar split is easy to imagine among the commentators. If this is indeed the case, the Act will have decisively changed not only the legal status quo but also the theoretical landscape, putting executive unilateralists and democratic theorists on the same side of a major fault line, while leaving civil libertarians relegated to the margins.
Eric Posner & Adrian Vermeule