E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
There should by now be little doubt that various members of
the incoming administration, including the President himself, would be willing
to torture terrorist suspects should opportunity arise. On the campaign trail, Donald Trump expressed
a desire to return to “waterboarding” terrorism suspects and “worse.” Mike
Pence declined to rule out torture when asked about it expressly this past
weekend. Nominee for CIA Director Mike Pompeo opposed President Obama’s decision in 2009 to close C.I.A. black-site prisons and also
to require interrogations to comply with the rules of the Army Field Manual. Army Lt. Gen. Michael Flynn, the choice
for national security adviser, is perhaps more equivocal. As a firsthand witness to the counterproductive
effects of abusive interrogation, he has said that “I would not want to return
to ‘enhanced techniques,’ because I helped rewrite the manual for
interrogations.” On the other hand, “if the nation was in grave danger from a
terrorist attack involving weapons of mass destruction, and we had certain
individuals in our custody with information that might avoid it, then I would
probably OK enhanced interrogation techniques within certain limits.”
Even with all best intentions, Congress and the courts are
unlikely to play much role at the outset in reining in this particular kind of presidential
ambition. There are clear statutory
prohibitions against the use of torture as it is; and the courts are empowered
to act only once an actual case or controversy is before them. It was in no small measure in the face of the
same dilemma during the first George W. Bush administration that so many legal scholars
turned to focus on the role of internal, intra-branch checks on executive power
– the Justice Department Office of Legal Counsel, agency Inspectors General,
and others. It also became apparent that
the uniformed military could be included among potentially available checks on
executive power.
After the attacks of 9/11, military lawyers and others in
the Pentagon played a critical role resisting efforts by the Bush
Administration to evade laws barring torture and cruelty to detainees in U.S.
custody. Not only was such treatment
illegal, they argued, authorizing techniques the troops had long been trained
were prohibited was disastrous policy: it sowed confusion in the field, compromised
operational effectiveness, endangered our troops, and undermined the mission
they had been sent to carry out. Well
beyond the Pentagon, it was a young Army specialist who helped blow the whistle
on the torture that permeated the U.S.-run Abu Ghraib prison in Iraq, and a
Major General whose investigation made clear to Congress how inadequate
resources, training, and accountability helped allow the abuse to endure and
spread. Elsewhere, military lawyers urged
Congress to investigate whether war crimes trials at Guantanamo could ever
actually succeed in delivering justice. And it was an Army Reserve lieutenant
colonel whose declaration about his experiences at Guantanamo extraordinarily
persuaded the Supreme Court to change its mind and agree to decide whether the
detainees there had a constitutional right to have their cases heard. Entirely apart from the military’s duty to
disobey manifestly unlawful orders, both active duty military, and retired leaders,
played a pivotal role in preventing America’s torture crisis from becoming
worse than it was.
Yet as laudable as this service was, and especially as the incoming
administration peoples itself with retired generals galore, the idea that the
military might limit the President in the pursuit of his goals should seem at
some level exactly backwards. The President is, after all, the Commander in
Chief of the military, a symbol of our country’s bedrock principle of civilian
control. That principle was born in part
from a (Revolutionary War-era) fear of military oppression in ordinary life, a
fear that seems unlikely today. But it
was also driven by the worry that the military – whose political popularity is unsurpassed
in contemporary American life – was capable of exercising outsized influence
over democratic decision-making. The
image of the “man on horseback” came to symbolize the concern that a
particularly successful and charismatic commander could effectively lead the
public down a path contrary to its own democratic interests, undermining the
ability of elected leaders to accomplish the policy goals the People wanted
them to fulfill.
While the military has of course changed dramatically since
the Constitution was drafted, the enduring concern that the military might unduly
influence politics led to a series of regulations beginning in the early
twentieth century restricting active-duty military from engaging in political
activities. Congress came to prohibit officers from holding civil elective
office, and to impose criminal penalties for using “contemptuous words” against
the President, members of Congress, or other elected officials. Today, active
duty military personnel are prohibited from participating in partisan political
fundraising, rallies, or conventions; using official authority or influence to
interfere with an election; or soliciting votes “for or against a partisan
political party, candidate, or cause.”
Such proscriptions are sensible. But these rules, coupled with powerful career
incentives, have too often been understood to limit the honest expression of
professional military dissent. There was
in Washington’s time, and today remains, a critical difference between a
military expression of partisan alliance and one of professional judgment. And there is certainly a difference between
expressions of political disagreement, and an insistence on adherence to
law. The era of Abu Ghraib taught us
that there is a range of ways in which the military can, consistent with their
own duty to uphold the nation’s Constitution and laws, help to steady the ship
of state. Of course the military is no
panacea. Plenty of troops supported Donald
Trump, and not all would oppose a return to torture. But it is also clear that the military is
capable of performing at least a part of the same service Americans should
expect of all our political institutions: as a platform from which people of
good will and a commitment to law can make their voices heard. Those concerned
about a return to torture should reach out. For it is as least as likely as any
of our institutional checks to help constrain whatever policy adventurism is to
come.