At least on the surface, a reaffirmation of the separation of powers may be the dominant theme of the Supreme Court’s terrorism jurisprudence during the past decade. For example, the decisions in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), and Rasul v. Bush, 542 U.S. 466 (2004), affirmed that the federal courts had a meaningful role to play in reviewing detentions of “enemy combatants” as part of the war on terrorism; the decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), invalidated military commissions established by President George W. Bush almost entirely on the ground that they were inconsistent with that which Congress had authorized; and the decision in Boumediene v. Bush, 553 U.S. 723 (2008), went the furthest, holding that, largely because of separation-of-powers concerns, Congress lacked the power to divest the federal courts of jurisdiction to entertain habeas petitions from noncitizens detained at Guantanamo. As Justice Anthony Kennedy there explained, “Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person.” Thus, access to the writ for the detainees “is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.” (Id. at 797.)
Indeed, even when the Court has declined to hear some of the more controversial detainee cases arising out of the war on terrorism, key justices have filed concurrences to emphasize that their view might be different if it appeared that their role might be jeopardized—i.e., if the detainees had no other remedy available to them. For example, Justice Stephen Breyer (joined by Justices Kennedy, Ruth Bader Ginsburg, and Sonia Sotomayor) explained in April 2011 that the denial of certiorari in Kiyemba v. Obama left open the question “whether a district court may order the release of an unlawfully held prisoner into the United States where no other remedy is available.” 131 S. Ct. 1631, 1631 (2011) (Breyer, J., respecting the denial of certiorari). In a similar vein, when the Court in April 2006 refused to hear Jose Padilla’s challenge to his military detention once he was transferred back to civilian custody, Justice Kennedy (joined by Chief Justice John G. Roberts and Justice John Paul Stevens) wrote to emphasize how, if the government sought to re-detain Padilla as an “enemy combatant,” “the District Court, as well as other courts of competent jurisdiction [including the Supreme Court], should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised.” Padilla v. Hanft, 547 U.S. 1062, 1064 (2006) (Kennedy, J., concurring in the denial of certiorari).
Even in Hamdan, where the underlying question went not to the power of the federal courts but rather the relationship between Congress and the president, the critical passage of the majority’s opinion relied on classical separation-of-powers concerns. Citing Justice Robert Jackson’s concurrence in Youngstown, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), Justice Stevens concluded that, “[w]hether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” (Hamdan, 548 U.S. at 593 n.23.) And although the Court did not specifically say so, its analysis seemed to call into question the Bush administration’s more general approach to executive power, under which the president’s constitutional authority as commander-in-chief necessarily overrode statutes that purported to constrain the president’s powers to detain enemy combatants, conduct warrantless surveillance, coercively interrogate terrorism suspects, and so on. After (and almost certainly because of) Hamdan, these arguments were largely abandoned.
Thus, whether as a means of protecting the role of the courts (as in the detainee cases), or as a means of validating the need for congressional authorization for trial by military commission (as in Hamdan), the separation of powers has figured prominently in virtually all of these decisions. As a result, a superficial analysis of the Court’s work during the past decade might easily conclude that, for better or worse, the separation of powers has done quite well since 9/11.
The Separation of Powers as Both Means and End
As much as the Court has focused on separation-of-powers concerns in its terrorism jurisprudence, it has devoted surprisingly little attention to why the separation of powers matters in these cases, or, more generally, to what the purpose of the separation of powers is as between the branches of the federal government. As simple an inquiry as this might seem, its answer has, perhaps surprisingly, become increasingly murky in recent years. The conventional response is “to protect against tyranny.” As Professor Rebecca Brown wrote in a 1991 law review article, “judges and academics who take up the subject of separated powers almost invariably invoke James Madison” and his oft-quoted discussion of the subject in The Federalist No. 47. See Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1515 (1991). But why is it so important to protect against tyranny? The classical answer is to better ensure individual liberty. Thus, from the perspective of those who wrote the Constitution, the animating purpose of separated powers was as means to an end—as the most appropriate method for protecting individuals from a tyrannical federal government, by ensuring that each of the three branches of the federal government checked the other branches’ authority.
Even before 9/11, a competing narrative had begun to emerge. Consider, for example, Justice Kennedy’s concurrence in Clinton v. City of New York, 524 U.S. 417 (1998), in which the Supreme Court invalidated the Line Item Veto Act of 1996 on separation-of-powers grounds. After noting that “[l]iberty is always at stake when one or more of the branches seek to transgress the separation of powers,” Justice Kennedy provided something of a reconceptualization of the “liberty” to which he was referring:
[W]e have come to think of liberty as defined by that word in the Fifth and Fourteenth Amendments and as illuminated by the other provisions of the Bill of Rights. The conception of liberty embraced by the Framers was not so confined. They used the principles of separation of powers and federalism to secure liberty in the fundamental political sense of the term, quite in addition to the idea of freedom from intrusive governmental acts. The idea and the promise were that when the people delegate some degree of control to a remote central authority, one branch of government ought not possess the power to shape their destiny without a sufficient check from the other two. In this vision, liberty demands limits on the ability of any one branch to influence basic political decisions. (Id. at 450–51; emphasis added.)
To the extent that the “liberty” protected by the separation of powers is equally about “freedom from intrusive governmental acts” and “limits on the ability of any one branch to influence basic political decisions,” Kennedy thereby maintained that the separation of powers is both means and end, and that the latter is no less important than the former.
But whereas Justice Kennedy embraced what might be described as a “dualist” view of the purpose of the separation of powers, the latter idea—i.e., that the separation of powers is an end unto itself—has emerged as an increasingly prominent hallmark of conservative constitutional interpretation. Indeed, six years before Clinton, Professor Brown had already noted how, “[r]ather than reinforcing a governmental design that furthers the public good, the Court’s institutional rhetoric [in separation of powers cases] suggests an aim of preserving the government for its own sake.” (Brown at 1520.) In the ten years since 9/11, that view has received even more prominence.
Consider a speech delivered in early 2004 by Michael Mukasey, then chief judge of the Southern District of New York and later attorney general. See Michael B. Mukasey, Speech to the Central Synagogue, New York, N.Y. (on file with author). Specifically discussing counterterrorism initiatives, Mukasey staked out the claim that the government should be entitled to the “benefit of the doubt” from its citizens whenever the political branches act in concert. At the heart of Mukasey’s argument (later published in modified form in The Wall Street Journal) was the controversial contention that the Framers
resisted pressure from people like Patrick Henry . . . to include the substance of what later became the Bill of Rights in the Constitution itself because they understood that if you give equal weight to a citizen’s rights against the government . . . it becomes correspondingly harder to command support for that government and correspondingly easier for people to simply go where their rights, and their interests, seem to take them. (Mukasey at 26.)
Thus, in Mukasey’s view, the soon-to-be Federalists eschewed the delineation of individual constitutional rights because they did not want to “give equal weight” to those rights as compared to the Constitution’s structural provisions—particularly those reinforcing the separation of powers. Contrasted with the related ideas that (1) the separation of powers exists largely (if not entirely) for the purpose of protecting individual rights; and (2) the Federalists were disinclined to enumerate specific rights out of fear that whatever rights remained un-enumerated might not be protected, Mukasey’s view seems a rather radical departure from what had long been the prevailing understanding.
And although Mukasey’s speech might be cast as a variation on Justice Kennedy’s theme in his Clinton concurrence, there is an important distinction between the two views: Justice Kennedy’s concurrence suggested that the “liberty” protected by the separation of powers is equally about “freedom from intrusive governmental acts” and “limits on the ability of any one branch to influence basic political decisions.” But Mukasey’s argument is that the latter idea (separation of powers as an end unto itself) is more important than the former (separation of powers as the means to protecting individual rights). Thus, the “hidden message in the structure of the Constitution,” as Mukasey concluded, is that individual constitutional rights are not entitled to the same reverence as structural limitations on the government’s power. (Mukasey at 26.) Taking this understanding to its logical conclusion, so long as the separation of powers between the branches is properly respected, infringements upon individual rights do not actually threaten “liberty” and are to be tolerated—if not expected.
There is a similar theme in Jack Goldsmith’s insider account of his volatile tenure as assistant attorney general in charge of the Office of Legal Counsel (OLC). See Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (2007). Although Goldsmith’s book leaves the impression that, contrary to what had long been the prevailing wisdom, there were voices within the Bush administration speaking out against what they viewed as dangerously excessive policies, it nowhere raises the specter of undue infringements upon individual rights, even though that has been one of the most vocal continuing sources of opposition to the counterterrorism policies of the Bush administration.
Indeed, the repeated (if implicit) message of Goldsmith’s book is that the gravest abuses committed by the Bush administration were affronts not to the rights of individuals, but to the separation of powers. He therefore unabashedly praises the Bush administration’s decision to finally return to Congress for the legal authority it needed, pushing through the controversial Military Commissions Act in November 2006 after the Supreme Court struck down President Bush’s unilateral military commissions in Hamdan, and the equally controversial (albeit time-limited) amendments to the Foreign Intelligence Surveillance Act (FISA) in early 2007, followed by the more sweeping FISA Amendments Act of 2008. (Goldsmith at 206–09.) Thus, in a similar vein as then-Chief Judge Mukasey’s speech, Goldsmith’s memoir of his OLC tenure is an argument for respecting the separation of powers as an end unto itself, largely—if not entirely—divorced from concerns over undue governmental infringement upon individual rights. Whether or not Goldsmith or Mukasey actually believes that individual rights are largely irrelevant, both of their writings reflect the mindset that, as compared to the separation of powers, it is simply inappropriate to “give equal weight to a citizen’s rights against the government.”
The Separation of Powers and Individual Rights
And that is where a more nuanced view of the Supreme Court’s terrorism jurisprudence paints a far more equivocal picture of the separation of powers after 9/11. For as much as the Court has asserted its power in the detainee cases, it has declined to exercise that power once those detentions have concluded, no matter the gravity of the plaintiff’s allegations of misconduct. Thus, in El-Masri v. United States, 552 U.S. 947 (2007), the Court denied certiorari to review the Fourth Circuit’s sweeping endorsement of the state secrets privilege as precluding a damages suit arising out of the “extraordinary rendition” program, even though it now seems clear that El-Masri’s was a case of mistaken identity. The Court also turned away the en banc Second Circuit’s refusal to recognize a cause of action for Maher Arar, a Canadian citizen who alleged that, because of egregious misconduct by federal officials, he, too, was subjected to extraordinary rendition, leading to his torture while in Syrian custody. See Arar v. Ashcroft, 130 S. Ct. 3409 (2010). In a similar vein, the Court left intact a D.C. Circuit decision holding that former Guantanamo detainees were not entitled to damages for any mistreatment they received during their detention. See Rasul v. Myers, 130 S. Ct. 1013 (2009). And just this past term, the Court refused to review a 6–5 decision by the en banc Ninth Circuit, also relying on the state secrets privilege to dismiss a lawsuit against Boeing subsidiaries arising out of its alleged involvement in extraordinary rendition. See Mohamed v. Jeppesen Dataplan, Inc., 179 L. Ed. 2d 1235 (2011).
After-the-fact challenges to detention are hardly the only category of terrorism disputes in which the Court has consistently refused to intervene. Among many others, the Court also has declined to consider challenges to (1) the warrantless wiretapping program undertaken by the Bush administration, see ACLU v. NSA, 552 U.S. 1179 (2008); (2) the expansive interpretation of the government’s authority to detain material witnesses sanctioned by the Second Circuit, see Awadallah v. United States, 543 U.S. 1056 (2005); and (3) the first-ever decision by the Foreign Intelligence Surveillance Court of Review, holding that the USA PATRIOT Act was constitutional in relaxing the standard for whether evidence obtained through FISA warrants could be used in criminal investigations, see ACLU v. United States, 538 U.S. 920 (2003). Even where the Court has been the most assertive, as in the Guantanamo detainee cases, it has turned away repeated attempts to review post-Boumediene merits decisions, see, e.g., al-Bihani v. Obama, 131 S. Ct. 1814 (2011), notwithstanding substantial charges by the petitioners that the D.C. Circuit’s case law is undermining the Supreme Court’s mandate.
In all, then, for as active as the Court has been with respect to separation-of-powers issues in the war on terrorism, it has been surprisingly quiet on the merits. Indeed, even where the Court has stepped in to review a nonmilitary detention terrorism case—as in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010); and Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011)—the best explanation for why the Court so intervened is that, unlike every other case noted above, the government lost in the court of appeals (and sought certiorari). Otherwise, the Supreme Court has practically stayed out of the war on terrorism, except in cases where the lower-court decision appeared to jeopardize the institutional role of the federal courts more generally.
Some, like Stanford Law Professor Jenny Martinez, have chalked this distinction up to the age-old fight over “process vs. substance.” See Jenny Martinez, Process and Substance in the War on Terror, 108 Colum. L. Rev. 1013 (2008). In Martinez’s view, the war on terrorism has been litigated primarily on “process” terms, whether because that is safer strategic territory for the lawyers, more familiar terrain for the judges, or some combination of both. To be sure, it is efficient to resolve separation-of-powers issues first, before reaching trickier questions as to the constitutional limitations of otherwise valid actions by the political branches. Even the most celebrated of wartime civil liberties decisions, Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), was decided unanimously on the ground that, whether or not Congress could authorize trials by military tribunals for confederate sympathizers in Indiana, President Abraham Lincoln had no authority to conduct the trials absent such authorization. On the much harder question of whether there were circumstances in which Congress could authorize such proceedings, the Court split 5–4 against.
Yet, inasmuch as we might attribute the initial focus on the separation of powers to strategic choices made by the lawyers in these cases, the longer that time goes on (and the more that the underlying “process” issues have been resolved), the more the Court’s approach appears to reflect, in fairly powerful ways, a more subtle change in attitude toward the relationship between the separation of powers and individual rights. Specifically, these cases appear to suggest that, so long as the Court is protecting its institutional role going forward, it sees no need to further assert itself and has no problem with the myriad lower-court decisions that have declined to provide redress for alleged post-9/11 abuses.
Part of this result may reflect the reality that the Court sees nothing worth disturbing in these decisions. But it seems equally plausible that the Court, or at least some of the key justices, has increasingly come to see the judicial role in these cases as protecting institutional prerogatives and nothing more. Thus, to whatever extent the Supreme Court has aggressively protected the separation of powers since 9/11, its jurisprudence at least implicitly appears to reflect a very different view of why such protection matters than that which prevailed before the towers fell.