Three Views of National Security and the Constitution

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

Comments

[AlanDownunder]

Do present day executive unilateralists really consider the 'War On Terror' to be any more of a war than the 'War on Drugs'? Both feature a global caste of 'evildoers doing harm to America' but the latter 'war' has done incalculably more harm to Americans than the former (unless one factors in self-harm to political discourse, the rule of law, and civil liberties)

[Frederick Hamilton]

AlanDownunder,

The War on Terror is a Congressionally approved war. It is a military war and not a euphimistic war as the war on Drugs.

Congress passed the Authorization to Use Military Force (AUMF) on September 18, 2001 by the 107th Congress. Signed into law by the president.

In the War on Terror, all phases and aspects of U.S. force (military, economic, political, intelligence, et al) are being used against those Muslim terrorist jihadists that wish to see Americans (all western infidels) dead.

Per the Constitution the only person with the authority to direct the military in this war is the president. If that is unitary, the Constitution was specific in wanting it that way.

I refer you to the WashPo op-ed piece of yesterday by Rivkin and Casey outling the powers of executive and Congress as it relates to conducting war.

You may have other ideas as to how to fight a war and who should be in charge, but for now in America we have to go by Constitutional authority. War by Congressional committees is forbidden. Again please refer to the piece I mentioned above.

[Phil]

The categories proposed are interesting analytical (or, perhaps rhetorical) tools, but they don't quite fit for me. I feel I'm mixing and matching them with my approach to the administration's behavior during this conflict.

Simply put, I've been trusting that our system would, in the end, do its work; that excesses would be noted as such and curtailed on the back end of the democratic process, either by the courts or congress, even if all abuse could not be prevented pro-actively; that there would be no enduring harm to the liberties we have managed to cultivate to this point in our history.

I told myself this was the "sober", "pragmatic" view of the situation. Increasingly, I am concerned that the more appropriate descriptor would be "naive". Nonetheless I now wait eagerly for the carefully separated powers enumerated in the Constitution to do their necessary work upon one another; for checks and balances to check, and balance.

[Erasmussimo]

I would appreciate it if somebody knowledgeable in this could explain to me how the denial of Constitutional rights to aliens is compatible with the strict wording of the Constitution. For example, the Fourth Amendement flatly states that "No person..." It doesn't say "No citizen..." yet in quite a few cases the courts have applied the (usually reasonable) notion that the strict language of the Constitution can be violated in special circumstances. The only rationale I have seen offered for this policy is the old "The Constitution is not a suicide pact" quote. Again, while some exceptions constitute reasonable policy, they are unquestionably in violation of the Fourth Amendment. So, are we all in a 'wink, wink, nudge, nudge' position with respect to the Fourth Amendment?

[Joan A. Conway]

Gaul was once adjoined to the continent and to Ireland during the Ice Age.

[Joan A. Conway]

I would appreciate it if somebody knowledgeable in this could explain to me how the denial of Constitutional rights to aliens is compatible with the strict wording of the Constitution.

I am not what I would call knowledgeable in this matter, but my hunch is that the denial of Constitutional rights to aliens lies with the Executive Office under Immigrants, and is a political question, that the courts refuse to give justifiability to under Article II and Article III.

Aliens treated disparately within the class of aliens have a better chance of adjudication then the fact aliens are treated with discrimination.

I hope this answers your inquiry for the time being until someone who can expound his comments upon your question does in this post.

[Law Student]

Even process theorists might have reasonable objections to the MCA on the grounds that it violates the Suspension Clause by suspending the writ despite the lack of "rebellion" or "invasion" as the text of the Constitution appears to require. This doesn't make them civil libertarians in disguise. True process theorists, for example, wouldn't uphold an executive action based on a crystal clear congressional authorization (from, say, the same Congress that passed the MCA) giving the President power to prevent publication of materials critical of the Republican party. Indeed, it's my intuition, however meaningless that might be to Professors Posner and Vermuele, that executive unilateralists would almost certainly object to such action. Process theorists will allow congressional authorization to trump poorly entrenched rights or rights not clearly in the text of the constitution. In fact, I think that all three positions consider there to be a floor of constitutional rights below which the executive cannot go. The President might have lots of inherent power, but not so much as to override textually or doctrinally clear limits. The President might have broad congressional authorization, but authorization that violates clear textual or doctrinal limits (as in my First Amendment example above) is itself unconstitutional. And for the civil libertarian, the "floor" is much more demanding.

Of course, this begs the question of which limits are textually or doctrinally clear. Do the September 11th attacks or the threat of future attacks count as an invasion for the purposes of the Suspension Clause now? I have no idea. But it seems to me that adherents of all three positions have to confront this substantive question. As many, many people have pointed out, process theory can't completely escape substantive judgments.

[Joan A. Conway]

Happy Birthday, Abe:

September 24, 1862, Proclamation Suspending the Write of habeas Corpus by Abraham Lincoln, requiring immediate judicial review, and later supported by Congressional action:

"Now, therefore, be it ordered, first, that during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission:

Second. That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority of by the sentence of any Court Martial or Military Commission."

The State of Lincoln.

[Joan A. Conway]

"The Merryman case and others like it ignited a debate over Lincoln's actions. Democrats argued they were unconstitutional. Taney noted that Article 1 of the Constitution, where habeas corpus is discussed, deals exclusively with congressional powers, meaning that Congress alone can authorize the privilege's suspension. Although correct, Taney's argument framed the debate around a legalistic and secondary issue, that of congressional versus presidential power. It skirted the question of whether the situation warranted a suspension of habeas corpus at all. Thus when in March 1863 Congress passed the Habeas Corpus Act, effectively endorsing Lincoln's actions, civil libertarians were stripped of their main argument. (Taney also criticized Merryman's detention, noting that civilians aren't subject to military justice."

[Joan A. Conway]

Lincoln's suspension of habeas corpus. - By David Greenberg ...In his authoritative Fate of Liberty: Abraham Lincoln and Civil Liberties (1991), ... Thus when in March 1863 Congress passed the Habeas Corpus Act, ...
www.slate.com/id/2059132/