In an October 2005 speech as remarkable for its candor as for its setting, then-U.S. Supreme Court Justice Sandra Day O’Connor asked Army cadets at West Point, “What law governs the detention and interrogation of terrorist suspects? And how are you to know what standards apply? . . . And what does your country demand?” Noting that “it is hard enough to answer the first two questions, but harder still when the nation’s elected leaders are silent about the last,” she added, “This is where we expect Congress to step in. But it has done surprisingly little to date to clarify United States policy towards prisoners in the war on terror.”
Depicting the Supreme Court’s June 2004 decisions regarding the rights of “enemy combatants” detained since the September 11, 2001, attacks on the United States as modest, O’Connor suggested that Congress could have further defined the rights of these detainees through legislation, which critics from both the Left and the Right might have welcomed. But Congress had not yet done so.
O’Connor’s pointed comment, seemingly directed to Congress, underscores the deleterious effects of congressional inaction on the rule of law since September 11. The U.S. Constitution’s provision for separation and balance of powers among the executive, legislative, and judicial branches of government necessitates an active Congress, particularly on issues of great national concern. But the passivity and inaction of the legislative branch has created a post–September 11 void into which the executive branch has charged, arrogating to itself lawmaking functions and promulgating a “unitary executive” theory of government that rejects “intervention” from the government’s other branches.
This approach to post–September 11 governance began early, with the Bush administration’s establishment, to overwhelming congressional approval, of a massive Department of Homeland Security, without effective congressional oversight, and the Pentagon’s creation of the Northern Command. More than four years after September 11, the executive’s aggressive stance on its own institutional powers has been paired with the legislative’s largely silent acquiescence to fundamental and far-reaching changes in government functions and operations.
Theories abound to explain the congressional passivity. It might be attributable to the Republicans’ domination of both houses of Congress, as well as the presidency, or to an unwillingness to try to counter the administration’s actions in view of the high approval ratings that the president has enjoyed until fairly recently. Or it may be yet further evidence of the failure of the foreign policy process dating back to at least Vietnam, as Yale Law School Dean Harold Koh has articulated in his article, “Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair.”
Whatever the reasons for executive branch excesses of power, the damaging effects of this approach on the rule of law, respect for international human rights, and the U.S. reputation worldwide cannot be placed solely on the doorstep of this branch of government. And whatever the reasons for the legislators’ somnolence, the post–September 11 United States—along with the rest of the world—needs an active Congress, one that acts according to its many grants of constitutional power and does not defer reflexively to the administration. By failing to enact laws (quintessentially the province of the Congress) to help the nation deal with the many difficult patches of the “global war on terrorism,” as well as aggrandizing actions on the part of the executive branch, Congress has failed in its most fundamental responsibilities. And by not providing clarity on such issues as enemy combatant detention and interrogation, particularly, Congress must bear responsibility for the abuses that the world now has witnessed in those areas. Whether Republican lawmakers’ recent attempts to develop legislation on the subjects of prisoner interrogations and judicial processes for enemy combatants are a sign that Congress has awakened from its former slumber and passivity remains to be seen.
Early Legislative Responses
In the immediate aftermath of September 11, Congress reacted swiftly (some might say too swiftly) to the executive branch’s call for new powers that it claimed it needed to address the terrorism threat. On September 18, in an Authorization for Use of Military Force (AUMF), Congress gave the president the power “to use all necessary and appropriate force,” consistent with the existing War Powers Resolution, to hold accountable those responsible for the terrorist attacks and to prevent future international terrorist attacks. A month later, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required for the Intervention and Obstruction of Terrorism Act (PATRIOT Act), which provided the executive branch a bevy of new and enhanced law enforcement tools to carry out this mission.
The AUMF, designed to address the immediate need to combat terrorists, was intended to be read consistent with the War Powers Resolution enacted by Congress in response to the Johnson and Nixon administrations’ use of military force in Vietnam without congressional approval. The PATRIOT Act, while expanding investigatory and other powers in wartime, was intended to be implemented consistently with the existing Foreign Intelligence Surveillance Act (FISA), which governs the use of warrants required for intelligence gathering through a “secret court” established under the act to review warrant requests sought by the government in security-sensitive circumstances.
Since fall 2005, as the scope and intent of the AUMF has come under public scrutiny and the PATRIOT Act has been reauthorized, these two pieces of legislation have become emblematic of the problems that have resulted from insufficient congressional action since September 11.
It is telling that in legal documents filed in response to challenges to its detainee and interrogation policies, the executive branch has relied almost entirely on arguments of inherent executive power and the AUMF. Under the former, the administration has contended, there is no need for the executive to seek congressional action to authorize the indefinite detention of “enemy combatants” (despite the fact that such a designation never has been recognized previously under domestic or international humanitarian law). Under the latter, the administration argues, the president may detain even American citizens arrested in the United States as enemy combatants, even though the AUMF contains no reference to these unprecedented actions.
If previously unaware of this claimed scope of power, Americans learned just how broadly the executive branch interprets the AUMF last December, when The New York Times reported that a hitherto secret surveillance program apparently has been operating, with the administration’s approval, since just after the September 11 attacks. Implemented without regard to FISA warrant requirements, the program reportedly has been the basis for more than four years of governmental eavesdropping on the communications of American citizens without any judicial oversight. When Senate Judiciary Committee Chairman Arlen Specter (R-PA) and other Republicans and Democrats aggressively questioned U.S. Attorney General Alberto Gonzales at a congressional hearing in early February 2006 about the legality of the program, Gonzales relied on two arguments. First, Gonzales asserted, the president has the inherent power as commander in chief to authorize warrantless searches in wartime, regardless of other law governing searches. Second, Gonzales argued, Congress itself effectively authorized the president to bypass FISA when it approved the AUMF.
Senators on both sides of the aisle challenged these contentions in what became the first open debate since September 11 on the enormity of the administration’s claims about executive power. Several senators sought to determine what—if any—limits the administration believes constrain the executive branch in the fight against terrorism. Does the president believe he has the power to open Americans’ mail? Search their homes? Is Congress powerless to legislate against such abuses? In an obvious reference to ongoing reports of the U.S. military’s abuse of prisoners, Senator Lindsey Graham (R-SC) pressed Gonzales regarding the extent of perceived wartime powers: “Do you believe it’s lawful for the Congress to tell the military that ‘You cannot physically abuse a prisoner of war’?” The attorney general responded, “I’m not prepared to say that, Senator.”
After the hearing, it appeared that a bipartisan group of senators was prepared to pursue a full investigation of the surveillance program. But, by early March, that resolve had dissipated. The Senate Select Committee on Intelligence announced a compromise with the administration under which the committee would forgo an immediate investigation in favor of adopting measures requiring the administration to explain the need for any warrantless searches that it wants to extend beyond forty-five days. The committee also said that it would establish a subcommittee to monitor the wiretapping program on a case-by-case basis.
Congressional response to alleged overreach of the PATRIOT Act has followed a similar pattern. Although the originally proposed act, drafted by the administration, contained some commonsense updates to law enforcement powers, its primary features were a breathtaking expansion of executive power and a limitation on the role of the courts. The proposal included, for example, a grant of power over noncitizens that would have amounted to preventive detention on the sole authority of the U.S. attorney general, with no right of review by any independent authority. Even in the immediate aftermath of the attacks, even for a Republican Congress, this proposal was a bridge too far.
But many of the measures that Congress did adopt as the PATRIOT Act were broad, and law enforcement officials and the administration have interpreted provisions expansively. Moreover, although a persuasive argument for the act’s passage in 2001 had been that some of its provisions would “sunset” automatically after a few years, while others would be reviewed prior to reauthorization, the administration began to assert that the entire act should be renewed permanently. As the December 2005 deadline for reauthorization neared, public and congressional opposition to certain provisions grew, such as those authorizing warrantless “sneak and peek” searches and law enforcement access to library, consumer, and other personal records without notice to persons whose records they were. While the administration claimed that these provisions were essential to the fight against terrorism, critics said that the administration had shown neither the need for, nor significant results from, intrusions into Americans’ privacy. For many Americans, the act became a symbol of executive overreaching generally in the “war on terror.” A nationwide movement of Bill of Rights Defense Committees developed to focus congressional attention on civil liberties concerns.
In the waning legislative days of 2005, a bipartisan group of six senators, including Russ Feingold (D-WI) (the only senator to have voted against the PATRIOT Act in 2001) and John Sununu (R-NH), threatened to filibuster the PATRIOT reauthorization bill unless it included modest civil liberties protections that the Senate, but not the House, previously had approved. The showdown resulted in an extension of the PATRIOT Act until early March 2006 to provide time for further debate.
By the end of February, however, the administration had gained enough additional votes in the Senate, including those of Republican senators who previously had expressed concerns about the act, to gain Senate approval for reauthorization with few amendments, and on March 7, 2006, the House approved the reauthorization bill by a two-vote margin. The revised act includes some additional civil liberties protections—including protection for users’ records in libraries that do not provide Internet access and a shield of names of attorneys of persons whose personal records are being sought secretly by federal agencies—but makes all provisions permanent.
This process did not reflect the fulsome debate about constitutional powers that Americans should be hearing four years after enactment of an “emergency measure” that infringes civil liberties. As is the case in most countries that have faced security emergencies, powers granted to the executive during a crisis are not retracted easily but become, as Vice President Dick Cheney has said, part of “the new normal.”
Torture Allegations and Addressing Detainees
The administration’s theory of unconstrained and supercharged executive power in wartime also is reflected in the administration’s and Congress’s respective responses to reports of the U.S. military’s abuse of detainees in violation of international and U.S. military law. In 2002, U.S. Department of Justice lawyers drafted a so-called “torture memo” to justify use of certain interrogation methods against detainees without running afoul of international and domestic laws. In the memo, the lawyers argued that the president could authorize violations of the federal statutory prohibition against torture in part because “Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” Although the argument did not appear in a subsequent version of the memo, the contention that the executive can choose whether to bypass the law seems to have continued to guide the administration’s actions.
After the abuse of detainees at Abu Ghraib in Iraq became public, followed by reports of abuse of detainees at Guantanamo Bay, Congress held hearings to try to determine the scope and nature of the abuse. Senator John McCain (R-AZ) subsequently sponsored legislation to bar the use of interrogation methods that would constitute torture or other “cruel, inhuman, or degrading treatment,” in violation of international or U.S. law, and to establish the U.S. Army Field Manual as the uniform source on permissible interrogation methods in all facilities under the authority of the Defense Department. ( See “ It’s About Us,” p. 20.) Despite a threatened presidential veto, the measure passed by wide margins in both the House and the Senate as an amendment to the defense appropriations bill. Yet when President Bush signed the amendment into law on December 30, 2005, he stated that he would interpret the new law “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.” Through this language, the president once again appears to be asserting that his executive powers allow him, in wartime, to ignore statutes passed by Congress.
Since September 11, by and large acting unilaterally in the most significant areas of counterterrorism policy, the executive branch has consolidated power to an extent that raises significant constitutional questions relating to the balance of power among the three branches of government.
Thomas Jefferson exalted the Constitution’s balancing of powers in military matters, which provides “one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body.” Although the Constitution invests the president with power as “Commander in Chief of the Army and Navy of the United States,” the Constitution grants Congress far-reaching authority over issues of war and national security. It provides that Congress has the power, among others, to “declare War . . . and make Rules concerning Captures on Land and Water,” to “ define and punish . . . Offences against the Law of Nations,” to “raise and support Armies,” to “provide and maintain a Navy,” and to “ make rules for the Government and Regulation of the land and naval Forces.” Most important, the Constitution gives Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
More than 200 years later, the Supreme Court echoed that view as it held in 2004 in Hamdi v. Rumsfeld a challenge to a detainee’s detention without charge and without any opportunity to contest his detention, that “a state of war is not a blank check for the President . . . . Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”
The branches do not always get the balance right. One striking example of imbalance is reflected in the administration’s establishment of military commissions to decide the cases of Guantanamo detainees. Created solely by executive order and Defense Department regulations, the commissions arguably violate all tenets of the separation of powers doctrine; the executive branch has created a separate body of applicable law for these cases and assigned judges from executive branch agencies. The Supreme Court is likely to rule on the legality of the commissions this spring.
Nor is congressional action always helpful. The Constitution’s provision for separate, coequal branches of government requires Congress to respect the independence of the judiciary, support regular judicial review, and, above all, not interfere in the disposition of pending cases. Legislation introduced by Graham, in response to his concern that “Congress has been virtually AWOL on the status of enemy combatants, resulting in contradictory federal court decisions about detainees’ legal rights,” may violate those principles. Cosponsored by Senators John Kyl (R-AZ) and Carl Levin (D-MI) and signed into law at the end of 2005, the legislation restricts judicial access for Guantanamo detainees rather than establishing substantive standards for detention policies. It also interferes with cases already pending in federal courts. It therefore further offends the separation of powers by constraining the branch of government that has been working as a counterpoint to executive branch overreaching in this area. To the extent the provision appears designed to impact habeas cases from Guantanamo Bay already before the Supreme Court and now pending in the U.S. Court of Appeals for the D.C. Circuit or cases challenging acts of torture by U.S. officials in federal courts in Washington, D.C., the legislation would appear to be unconstitutional.
McCain’s legislation, on the other hand, reflects the standard-setting role assigned to Congress under the Constitution. After establishing a basic legal standard, the legislation properly allocates to the executive branch the power to define interrogation techniques through the Army manual. By defining the standard, it also provides courts a measure by which to adjudicate cases concerning interrogations.
In an apparent reference to the McCain provision, O’Connor told the Army cadets, “Here, it is important that the law be settled, and that it be settled right. So perhaps Congress will continue to try to get the law right.” The now-retired justice urged presidential involvement and speculated that judges also would be called upon to decide related matters.
The New Rubric
To meet the challenges of a “global war on terrorism” responsibly, all three branches of government must actively assert their appointed roles. The stakes are high, not just for the constitutional balance and for civil liberties in this country, but for human rights and the rule of law more broadly. The world is watching what we do.
The United States’ detachment from its own rule of law principles is having a profound effect on human rights around the world. Counterterrorism has become the new rubric under which opportunistic governments seek to justify their actions, however offensive to human rights.
Indeed, governments long criticized for human rights abuses have publicly applauded U.S. policies, which they now see as an endorsement of their own longstanding practices. Shortly after September 11, Egypt’s President Hosni Mubarak declared that new U.S. policies proved “that we were right from the beginning in using all means, including military tribunals, to combat terrorism . . . . There is no doubt that the events of September 11 created a new concept of democracy that differs from the concept that Western states defended before these events, especially in regard to the freedom of the individual.”
Mubarak’s observation came before the Abu Ghraib photos exposed to the world the consequences of this “new concept of democracy.” Most fundamentally, it eschews the inherent dignity of the individual, which is the cornerstone of the international human rights system. The costs have been enormous.
In addition to the incalculable human toll of these violations, the honor and moral standing of the United States has been one important casualty of this new paradigm. Even more important is the damage done to the edifice of human rights law built up over the last fifty years. Columbia University Professor Louis Henkin famously remarked that in the cathedral of human rights the United States has not been a pillar, but a flying buttress, standing outside the structure and supporting it, but unwilling to subject itself to the rules that govern inside. We now may be entering a period in which not only is that support withdrawn, but the world’s only superpower begins throwing rocks through the stained glass windows.
Elisa Massimino is director of Human Rights First in Washington, D.C. Avidan Cover is senior associate in Human Rights First’s Law & Security Program.
As published in Human Rights, Winter 2006, Volume 33, Number 1, pp.5-10.