an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Pragmatism Versus Ideology in the Law of Terrorism
Last Friday, the Obama administration announced its most important decision on detention policy since it declared, right after the inauguration, to close Guantanamo within a year. The new President’s approach, represented in Friday’s court filing, is going to be pragmatic, not ideological. In its pragmatism, there will be elements of continuity with the prior administration. But in its rejection of unconstrained Presidential powers and embrace of international law, there will be a dramatic break with the ideology of the past eight years.
Federal court orders required the Obama administration to define on Friday who it is going to consider an “enemy combatant.” This must be done in order to judge whether any particular individual still held at Guantanamo can continue to be detained for the time being, although the administration would remain free to try, release, or transfer that person instead. The question of how much power, if any, the President has to detain individuals accused of participating in acts of terrorism raises profound questions of power and liberty under the Constitution, as well as issues concerning the relationship of the Constitution to international law.
Friday’s court filing reveals a new administration that no longer envisions a President of unilateral, unbounded power. Nor does it refuse to look to international law as a source of guidance and constraint in determining who may be detained in the terrorism context. Thus, in the first noteworthy break with the past, Friday’s court filings indicate that President Obama is not going to rely on any claims of inherent or unilateral Presidential power to justify detention. Instead, he acknowledges his power is derivative: he has such power because Congress has chosen to give him that power. The Supreme Court has held that the Authorization for the Use of Military Force (AUMF), which Congress passed in the wake of 9-11, grants the President this power to detain. President Obama has now represented that he will detain only within the scope that this law grants.
Second, and perhaps even more dramatic, President Obama states that he will interpret the scope of this detention power consistent with “the laws of war.” The laws of war are the rules and norms that have been developed internationally (with the United States having played a leading role, starting with the Civil War) for determining who can be detained, tried, and killed during times of armed conflicts. The laws of war were developed before the context of modern terrorism; because of that fact, the prior administration argued that the laws of war had little relevance – and posed few potential constraints – on how the United States government conducted its campaign against Al Queda and associated groups.
In marked contrast, the Obama administration continues to look to the laws of war and international law as a source of “permission and obligation” in defining the boundaries of the administration’s power to detain. The most striking aspect of the Obama’s administration position, in fact, is the pervasive role that the laws of war – the international tradition of governmental authority and its limits during wartime – play in the President’s conception of the boundaries on his power. The Obama administration recognizes, as did the Bush administration, that the traditional laws of war were not developed for the context of modern terrorism. But instead of then concluding that those laws are irrelevant, and hence furthering the specter of an unconstrained President, the new President argues that courts should draw on the traditional laws of war for principles and analogies; Obama argues that those laws should be adapted to be applied sensibly in today’s context of terrorism, but not ignored. Here, too, the new administration is following and building on the lead of the Supreme Court. Thus, the overall vision is that of a Presidency acting in concert with domestic legislation, international law, and the Supreme Court’s decisions.
Indeed, the Obama administration told the court on Friday that it wants to get rid of the term “enemy combatant” altogether. That term has been an irritant in international relations and among some international lawyers, because it is not a term formally recognized in international law. Instead, by limiting any continuing detentions to those that would otherwise be permissibly detained by the laws of war, the Obama administration seeks to reduce anxieties that had been generated by a novel legal category that generated perhaps unwarranted fears. I suspect this move might be only a semantic one, but it shows the new administration’s sensitivity toward minimizing unnecessary sources of friction with foreign allies. But in offering a vision of a legally constrained Presidency, and in signaling respect for international law, President Obama has shifted the ideological foundation of the United States’ legal approach to terrorism.
At the same time, President Obama has maintained elements of the underlying pragmatism that characterized President Bush’s approach. In not closing Guantanamo immediately, and in thereby defending continued detention of at least some individuals there for the time being, President Obama is not abandoning immediately all tools other than conventional law enforcement and criminal prosecution for dealing with modern terrorism. That pragmatism is also reflected in his recognition that, if the President is going to defend the need for policies like detention, he will have to defend and implement those policies in ways that ensure such exceptional powers are subject to essential legal constraints.
Friday’s decision applies only to those already held at Guantanamo and is a necessarily temporizing one. The Obama administration has created an interagency review process to determine whether the President should continue to use detention as a tool, either for newly captured individuals or for those currently held at Guantanomo. Should the President assert any power to detain in the future, I believe the administration should acknowledge the desirability of some form of judicial oversight over the process, whether or not judicial review is legally required. If detention is to be used, judicial oversight in some form will ensure greater transparency and provide a check on the risks associated with a unilateral executive control over the detention decision. Instead of fighting battles over whether the courts are formally entitled to any oversight role, the pragmatism of Friday’s decision would be furthered by recognizing that detention will always remain, rightly, controversial – whether or not the President formally has the legal power to detain. For that reason, a President who accepts some judicial oversight over detention will provide much greater reassurance against abuse of the detention power.
Faced with the complex challenges of post 9-11 law and policy, the Bush administration would have had its hands full simply trying to decide how to adapt various laws and policies to deal with the unique nature of modern terror threats. But that administration chose to fight a two-front war. Instead of simply arguing that 9-11 required law to adapt in pragmatic ways to the specific nature of modern terrorist threats, that administration also sought to wage an ideological battle over the relationship between the President and Congress, as well as the United States and international law. But those ideological battles were not necessary to sustain most of the pragmatic policies that emerged to battle modern terrorism. The Obama administration now looks willing to leave those ideological battles behind and focus only on the pragmatic task of how to fight terrorism effectively. Posted
by Rick Pildes [link]