Professor, Graduate School of Management, Department of Criminal Justice and Forensic

*
Science, Hamline University, and University of Minnesota Law School. This article was originally
presented as a paper at the Oxford Round Table conference on criminal law, March 26 -31, 2006,
Oxford University, England. I am indebted to all the participants for their excellent suggestions and
comments. Special acknowledgments go to Ralph Ruebner at the John Marshall Law School and David
Rudstein of Chicago-Kent College of Law for their insights and ideas.
Democracy on Trial: Terrorism, Crime,
and National Security Policy in a Post 9-11 World
David Schultz, Professor, Hamline University,
*
Graduate School of Management,
650 Asbury Street, Suite 305
St. Paul, Minnesota, U.S.A.
651.523.2858
Dschultz@hamline.edu
August 2007
Prepared for delivery at the 2007 Annual Meeting of the American Political Science Association,
August 30th-September 2nd, 2007. Forthcoming in Golden Gate Law Review (2007).
Abstract
Post 9-11 concerns in the United States, among the European Union (EU) members, and other
western democracies regarding international terrorism forced convergence of the traditionally distinct
areas of domestic criminal justice and national security. This convergence has produced several policy
and institutional conflicts that pit individual rights against homeland security, domestic law and
institutions against international norms and tribunals, and criminal justice agencies against national
security organizations. This Article examines regime responses to international terrorism, principally
in the United States, in comparison to the European Union, seeking to describe the consequences of the
merger of criminal justice norms with national security imperatives. The conclusion is that while
recognizing that 9-11 was a tragedy, the response to these events has been even more tragic, especially
in light of assertions of extra-constitutional executive authority and how these claims threaten human
rights, international law, and democratic processes in general.
The events of 9-11" in this paper shall refer to the instances of terrorism taking place in the
1
United States on September 11, 2001, resulting in the hijacking of several airplanes by al-Qaeda
terrorists and their subsequent crashing into the World Trade Center towers in New York City, the
Pentagon building in Washington, D.C., and the downing of another passenger plane in Pennsylvania,
which was putatively destined for the White House or Capitol.
See, e.g.: DAVID DYZENHAUS, THE CONSTITUTION OF LAW: LEGALITY IN A TIME OF
2
EMERGENCY (NY: Cambridge University Press, 2006) who makes a similar point.
See, e.g.: The White House, Waging and Winning the War on Terror (Located on the
3
Internet at < http://www.whitehouse.gov/infocus/achievement/chap1.html >) (site last visited on
February 8, 2006) (describing how the United States was winning the war on terrorism).
Raymond Bonner, Australia to Present Strict Antiterrorism Statute, N.Y. TIMES (November
4
3, 2005) at A6 (reporting that Prime Minister John Howard had warned of a potential terrorist attack
based upon unspecified police and intelligence information).
1
Introduction
The events of 9-11 presented western democracies with a challenge and a test. The challenge:
1
Respond to terrorism either by military or diplomatic means(such as criminal apprehension and
prosecution) to address national security needs and to protect civilian populations, infrastructure, and
commerce. The test: How to meet the terrorist and national security challenges while simultaneously
respecting international law, human rights, domestic constitutionalism, rule of law, and individual rights
and liberties of both citizens and non-citizens. Unfortunately, the report card on both the challenge and
2
test reveal a mixed record, especially in the United States.
Subsequent to the events of 9-11, the United States has not experienced another domestic act of
terrorismleading President Bush to claim that the country was winning the war against terrorism. But
3
both England and Spain were victims of terrorism, Australia claimed knowledge of imminent attack,
4
Ian Austen and David Johnston, 17 Held in Plot to Bomb Sites Across Ontario, N.Y. TIMES,
5
A1 (June 4, 2006).
JOHN C. YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS
6
AFTER 9/11 (Chicago: University of Chicago Press, 2005). See also: MIRKO BAGARIC AND JULIE
CLARKE, TORTURE: WHEN THE UNTHINKABLE IS MORALLY PERMISSIBLE (Albany, NY: SUNY Press,
2007) (arguing that torture is a legitimate tool to protect the innocent as a result of the events of 9-11
and the rise of worldwide terrorism).
Dyzenhaus at 17, 34.
7
2
and Canada arrested several plotting to bomb sites across its nation. As a result of the events of 9-11,
5
some, such as John C. Yoo, have declared that the West faces a new war, demanding new security
measures that perhaps challenge pre-9-11 notions of presidential power and civil liberties. The result
6
has been an ushering in of various measures such as the Patriot Act, detention of civilians and
noncivilians suspected as terrorists, reinterpretations of international law or conventions (including the
International Convention Against Torture and the Geneva Accords), and the use of wiretaps by the
National Security Agency in the United States. Parallel efforts, both in England and Australia to
increase the surveillance, detention, and prosecution of suspected terrorists, have also been attempted.
Overall, post 9-11 concerns in the United States, among the European Union (EU) members,
and other western democracies regarding international terrorism forced convergence of the traditionally
distinct policy areas of domestic criminal justice and national security. This convergence has produced
several policy and institutional conflicts that pit individual rights against homeland security, domestic
law and institutions against international norms and tribunals, and criminal justice agencies against
national security organizations. As Dyzenhaus aptly describes it, situations such as the West faces in
a post 9/11 environment challenge claims about the viability or the rule of law and traditional notions
of constitutionalism during emergencies.
7
This Article examines regime responses to international terrorism, principally in the United
While not the focus of this paper, on November 3 2005, Australia amended its antiterrorism
8
l a w. Se e : Ant i -Ter r or i s m Bi l l 2 0 0 5 ( a va i l a bl e on t he I nt er net a t
<http://parlinfoweb.aph.gov.au/piweb/Repository/Legis/oldEms/Linked/15110500.pdf >) (Site last
visited on January 22, 2006) which made it easier to prosecute an individual under existing law by
dropping the requirement that a particular act was terrorist. Instead, one would merely need to show
how the act was related to terrorism.
3
States, in comparison to the European Union, seeking to describe the consequences of the merger of
criminal justice norms with national security imperatives. The claim will be that the collapse of
8
criminal justice into national security norms has manifested numerous contradictions that pose perhaps
even more significant challenges to Western European and North American style democracies than does
international terrorism. Specifically, the collapse of the criminal justice norms into national security
has both threatened civil liberties and augmented claims (at least in the United States) of extra-
constitutional powers for the president. Moreover, while the courts have generally placed some limits
on these trends, it is not so clear that abuses of individual rights or executive power have been adequate
to comply with substantive notions of rule of law and constitutionalism.
Part one of this article seeks to establish the basic values and norms that frame western style
democracies, such as the United States and the states of the EU. Part two provides a detailed
examination of the development of the war on terrorism in the United States, concentrating upon what
actions the Bush administration took to respond to 9-11, its justification for presidential authority, and
the impact both have had upon individual liberties. Part three assesses the Bush Administrations legal
arguments for the war on terrorism and presidential power, by discussing how the courts have responded
to the governments efforts to curtail individual liberties. Part four briefly switches to the impact of the
war on terrorism in England and the EU, seeking to provide a contrast to approaches found in the United
States.
The conclusion is that while recognizing that 9-11 was a tragedy, the response to these events
PENNOCK, J. ROLAND, DEMOCRATIC POLITICAL THEORY (Princeton: Princeton University
9
Press, 1979).
PENNOCK, J. ROLAND AND JOHN W. CHAPMAN, LIBERAL DEMOCRACY (NY: NYU Press,
10
1983). See also: Guido De Ruggiero, The History of European Liberalism (Boston: Beacon Press,
1959) (describing the differences between democracy and liberalism).
CHARLES HOWARD MCILWAIN, CONSTITUTIONALISM: ANCIENT AND MODERN (Ithaca, NY:
11
Great Seal Books, 1958); PENNOCK, J. ROLAND AND JOHN W. CHAPMAN, CONSTITUTIONALISM (NY:
NYU Press, 1979).
4
has been even more tragic, especially in light of threats to individual and civil rights, international law,
and democratic processes in general. The convergence of national security or intelligence gathering
with criminal justice in the name of homeland security and the war on terror has resulted in a war on
civil liberties that has under minded responses to terrorism and threatened democracy and individual
rights.
I. Democracy and Constitutionalism
Western European and North American style democracies are indebted to a confluence of three
political traditions that inform the way their institutions operate. These traditions are democracy,
liberalism, and constitutionalism.
The concept democracy is very old, dating back to Plato and the ancient Greeks who saw it
as a rule by the masses. More modern notions of democracy labeled it a form of popular government
9
where the people rule, either directly, or indirectly, through their representatives, based upon the
principle of majority rule. Liberalism, a concept whose origins is often traced to John Locke,
represents a set of political values committed to the protection of individual rights, polities instituted on
the basis of the consent of the governed, and to a notion of a limited government. Third,
10
constitutionalism as a concept is also very old, again dating back to the ancient Greeks, especially
11
JAMES T. MCHUGH, COMPARATIVE CONSTITUTIONAL TRADITIONS (NY: Peter Lang
12
Publishing, 2002).
LON FULLER, THE MORALITY OF LAW (New Haven: Yale University Press, 1975).
13
Fuller at 33-38.
14
Dyzenhaus at 59-62.
15
Compare: C.B. Macpherson, Democratic Theory: Essays in Retrieval (Oxford: Oxford
16
University Press, 1973) (noting the tensions and strains among varieties or variations of democratic
theories and liberal theory).
See: G. BINGHAM POWELL, JR., ELECTIONS AS INSTRUMENTS OF DEMOCRACY, 20-46 (New
17
Haven: Yale University Press, 2000) (discussing the differences in how constitutional designs in
majoritarian and proportional systems affect political accountability).
5
Aristotle, and it refers to the basic structures, Grundnorm, or rules that constitute a government. As
the term has evolved in Western Europe and North America, constitutionalism refers to a government
of limited powers, one which often must adhere to rule of law, procedural due process or regularity, and
a commitment to the protection of individual rights. However, as both Lon Fuller and David
12 13
Dyzenhaus argue, adherence to rule of law is more than a formal set of rules. For Fuller, there are eight
requisites to giving the law an inner morality that constrains arbitrary actions. Similarly, Dyzenhaus
14
asserts that the inner morality of law as described by Fuller is more than a procedural adherence to rule
of law. Instead, rule of law imposes a substantive limit on the government. Hence, he rejects the idea
that there needs to be special constitutional rules or powers during emergencies.
15
Together, democratic, liberal, and constitutional values are important values in the United
States, England, and many if not all of the European Union (EU) member states. Even if the exact
16
application of the three values varies across these countries, commitments to majority rule balanced
17
by minority rights, procedural regularity, and a government subject to some limits, are shared by many
countries in the west claiming to be democracies.
See: David Schultz, Political Theory and Legal History: Conflicting Depictions of
18
Property in the American Political Founding, 37 A J. LEGAL. HIST. 464 (1993); LOUIS HARTZ, THE
LIBERAL TRADITION IN AMERICA: AN INTERPRETATION OF AMERICAN POLITICAL THOUGHT SINCE THE
REVOLUTION (NY: Harcourt Brace Jovanich, 1955); J.G.A. POCOCK, THE MACHIAVELLIAN MOMENT:
FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLIC TRADITION (Princeton: Princeton
University Press, 1975).
ROBERT DAHL, A PREFACE TO DEMOCRATIC THEORY: HOW DOES POPULAR SOVEREIGNTY
19
FUNCTION IN AMERICA? (Chicago: University of Chicago Press, 1956).
THE FEDERALIST NO. 10, at 59-61(James Madison) (Edward M. Earle ed. 1937).
20
See also: LOUIS HENKIN, CONSTITUTIONALISM, DEMOCRACY, AND FOREIGN AFFAIRS (NY:
21
Columbia University Press, 1990) for a similar analysis and description of American constitutionalism,
6
A. United States
The United States of America generally shares in having the liberal, democratic, and
constitutionalism values inform its political traditions. As conceived in 1787, its Constitution is more
specifically indebted to a set of political values found in the Liberal, republican, and legal traditions
indebted to John Locke, James Harrington, and William Blackstone. The original logic for American
18
government is often referred to as Madisonian Democracy, a reference to James Madison, one of the
primary authors of the 1787 Constitution. He is also one of the authors of the Federalist Papers, which
are often described as an authoritative gloss on the intent of the constitutional framers.
Madisonian democracy is depicted as a government set up to prevent tyrannies of the majority.
19
As described in Federalist no 10, majority factions pose a threat to the public good or the rights of
others in traditional republics. To control their effects, Madison described the need to create a political
system that was socially heterogeneous and geographically large, so as to make it more difficult for
factions to compete. But he also proposed a system of legislative supremacy, separate of powers,
20
checks and balances, bicameralism, and federalism as ways break upon concentrations of power and
thwart the ability of majority factions to form. In addition, factions would be encouraged to compete,
21
especially as it applies to foreign affairs.
DAVID B.TRUMAN, THE GOVERNMENTAL PROCESS: POLITICAL INTERESTS AND PUBLIC
22
OPINION, 6-7, 520 (NY: Knopf, 1971).
BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (Cambridge:
23
Belknap Press, 1967).
7
thereby also reducing the potency and likelihood of any one from dominating.
Despite the above design, James Madison subsequently proposed a Bill of Rights to offer
additional protections for individual rights. These along with other amendments to the Constitution
provide further protection for individuals or minorities against majority rule. Moreover, as a result of
fears of communism and the rise of fascism during the middle of the twentieth century, some have
argued that Madisonian democracy in the United States evolved into a pluralist democracy. The latter
is one more based upon group than individual competition for political power. Finally, whatever
22
variant of democracy, the American Constitution is described as one conferring political power. By that,
absent explicit or implied constitutional clauses conferring power upon the federal government,
including the three branches, there is no extra constitutional power to act.
B. England
Bernard Bailyn has argued that growing disagreement over what representation,
constitutionalism, and sovereignty meant were at the core of the disputes between America and Great
Britain, precipitating the American Revolution. Bailyns comments point to some of differences
23
between these governments that would eventually characterize the respective countries.
While the American political tradition emphasizes the importance of a written constitution
D.C.M. YARDLEY, INTRODUCTION TO BRITISH CONSTITUTIONAL LAW, 1-6 (London:
24
Betterworths, 1984); T.R.S. ALLAN, LAW, LIBERTY, AND JUSTICE: THE LEGAL FOUNDATIONS OF
BRITISH CONSTITUTIONALISM, 4-5 (Oxford: Clarendon Press, 1994).
Yardley at 31-43.
25
Yardley at 75-80; Allan at 183-211.
26
Yardley at 75-80.
27
8
serving as a limit upon the government, in Great Britain that is not the case. There is no real written
24
Constitution, instead a series of practices, legislative enactments, and documents, such as the Magna
Carta, the English Bill of Rights, and the Petition of Right, that form the British Constitution. In
addition, the concept of legislative or parliamentary sovereignty seems to make Parliament equal to
what is constitutional. By that, the constitution is not something that necessarily limits Parliament
25
since the two are not seen as distinct as is the government and the Constitution in the United States.
A second critical difference between the United States and Great Britain is over the concept of
separation of powers. Even though the separation of judicial, executive, and legislative powers into the
three branches of the American government have been modified by checks and balances and some
sharing of powers, parliamentary systems of government such as in the United Kingdom are
characterized by even less formal notions of separations of powers than found in the United States.
26
For example, while the Crown is often considered the government, the prime minister and his cabinet
are both members of parliament and the government. Similarly, courts are also considered part of the
government, arising out of the crown.
27
While individual rights can be altered by Parliament, respect for them is an important part of
the British legal tradition, as is a commitment to a rule of law. Finally, while prior to the ascension of
William and Mary in the seventeenth century the crown was considered to have certain inherent royal
Yardley at 53-58.
28
9
prerogatives, they now exist only at the pleasure of Parliament .
28
Overall, despite important differences, the constitution of England also seems committed to
limited government, respect for individual rights, and rule of law as a method of enforcing procedural
regularity.
C. European Union and the European Convention on Human Rights
The various treaties and agreements that have produced the European Union have developed
a series of political institutions for the facilitation of open markets across its member states. Several
agreements support what is often described as the three pillars of EU. The first pillar is the creation of
the European Community (EC), built from the 1951 European Steel and Coal Community, the 1955
European Atomic Energy Community, and finally, in 1993, the Treaty on European Union (TEU) of
Maastricht. This treaty, as amended by the 1997 Treaty of Amsterdam (TOA), created the basic
structure of the EC. Together, the TEU and the TOA forged the second pillarCommon Foreign and
Security Policy (CFSP)and the third pillarJustice and Home Affairs. These three pillars constitute
the heart of the EU.
The EU Commission approximates an executive branch of career civil servants and is composed
of twenty members, including its president, who oversee the bureaucracy, organized into numerous
Directorates General. The Council of the European Union consists of more political members and has
a representative from each member state, along with a president who holds office for six months, with
the office rotated among all the member states over a six year period. The European Council consists
of a head of state or government from each of the member states, and the members of the European
See: STIJN SMISMANS, LAW, LEGITIMACY, AND EUROPEAN GOVERNANCE: FUNCTIONAL
29
PARTICIPATION IN SOCIAL REGULATION, 10-15 (New York: Oxford University Press, 2005)
(summarizing the criticism of the EU as not being sufficiently democratic and accountable to its
members or the people). See also: WALTER VAN GERVEN, THE EUROPEAN UNION: A POLITY OF
STATES AND PEOPLES (Stanford: Stanford University Press, 2005) for similar discussions of the
democratic deficit.
PAUL CRAIG AND GRINNE DE BRCA, EU LAW: TEXT, CASE, AND MATERIALS, 296 (Oxford:
30
Oxford University Press, 1998).
See: Opinion 2/94 on Accession of the Community to the ECHR, ECR I-1759 (1966).
31
CRAIG AND DE BRCA at 298-301.
32
See e.g.: Internationale Handelgesellschaft v. Einfuhr und Vorratstelle fr Getreide und
33
Futtermittel, Case 11/70, ECR 1125 [1970].
10
Parliament are allocated among the different member states and they are directly elected by citizens of
the states.
Finally, in addition to there being a variety of special EU boards or institutions, there is the
Court of First Instance and the European Court of Justice( ECJ) available to adjudicate legal disputes
between member states and communities, disputes over EU treaty interpretation, and
employee/employer disputes, among other issues.
The governance and structure of the EU has been criticized as suffering from a democratic
deficit. In addition, when the original European Community (EC) treaties were signed in the 1950s,
29
they contained no express provisions for the protection of human rights. The European Court of
30
Justice (ECJ) has ruled that the EC could not accede to the European Convention of Human Rights
(ECHR). However, the Court of Justice has used its power to create a series of fundamental rights
31 32
which it has used on occasion to annul community laws. Among the rights created or recognized by
33
Case 44/79, Hauer v. Land Rheinland-Pfalz [1979] ECR 3727.
34
Kalsbeek v.Sociale Verzekeringsbank, Case 100/63 (1964) ECR 565.
35
Transocean Marine Paint Association v. Commission, Case 17/74, [1974] ECR 1063.
36
Case 43/75, Defrenne v. Sabena [1976] ECR 455.
37
Case 4/73 Nord v. Commission [1974] ECR 491. Compare: SMISMANS AT 11 (denying
38
that a common set of European values exist to hold the European Union together).
T.C. Hartley, The Foundations of European Community Law, 138 (Oxford: Oxford
39
University Press, 1998).
European Convention on Human Rights (located on the Web at
40
< http://www.hri.org/docs/ECHR50.html >) (site last visited on January 27, 2006).
Id. at Article 5.
41
Id. at Article 6.
42
11
the ECJ include protection of property rights, legal certainty, a right to a hearing, and equal
34 35 36
treatment for men and women. The origin of these rights are found in the common constitutional
37
traditions common to the Member States.
38
Far more important than ECJ construction of fundamental rights, the ECHR provides for
protection of individual rights in Europe since all member states of the EU are also parties to it.
39
Among its major provisions, Article 3 bans torture and inhuman treatment, a right to liberty and
40
security of person, and a right to a public hearing and other procedural protections if accused and
41
charged with a crime.
42
Overall, between the EC and the ECHR, individuals in the EU have fundamental rights to be
protected against an arbitrary deprivation of liberty.
HELEN DUFFY, THE WAR ON TERROR AND THE FRAMEWORK OF INTERNATIONAL LAW, 4-7
43
(New York: Oxford University Press, 2005).
Duffy at 217, 214.
44
Duffy at 282-292.
45
H.C. 5100/94 The Public Committee Against Torture in Israel et al v Government of Israel
46
et al, 53(4) P.D. 817.
See: ROBERT A DAHL, DEMOCRACY AND ITS CRITICS (New Haven: Yale University Press,
47
1989) and GIOVANNI SARTORI, THE THEORY OF DEMOCRACY REVISITED (two volumes) (Chatham, NJ:
Chatham House Publishers, 1987) for good summaries of the shared valued of western European style
democracies.
12
D. International Law
International law is composed of a host of traditions, conventions, treaties, and other documents
and practices. International law, especially international humanitarian and human rights law, also
43
afford protections to individuals against inhumane treatment, including torture and illegal detention.
44
Among sources of international law that apply are the 1994 Convention against Torture and the various
Geneva Conventions governing the treatment of combatants and noncombatants. Finally, some
45
countries, such as Israel, have had their highest courts declare torture to be illegal under any
circumstances.
46
E. Summary
The United States, England, and the EU community share a set of values committed to limited
government, protection of individual rights, and the rule of law as basic precepts of governance. The
47
source of these values lie in domestic, transnational, or internal law, traditions, and customs. They serve
as a cornerstone for a democratic society that place limits on the ability of the government, or anyone
in it, to claim absolute or unchecked authority to act in disregard of these values.
HELEN DUFFY, THE WAR ON TERROR AND THE FRAMEWORK OF INTERNATIONAL LAW, 76-
48
93 (New York: Oxford University Press, 2005).
See: < http://www.whitehouse.gov/news/releases/2001/09/20010920-8.html > (site last
49
visited on January 16, 2006) for a copy of the speech.
See: <http://www.whitehouse.gov/news/releases/2001/10/20011007-8.html > (site last
50
visited on January 16, 2006) (presidential speech announcing the commencement of air strikes against
the Taliban and al-Qaeda).
See Section II.
51
13
In the post 9-11 world , the choice made to enhance security and fight the war on terrorism
challenged these values in the United States and, to a lesser extent, England and across the EU.
II. President Bush and the United States
After 9-11, President Bush faced two choices: First, he could either respond to the terrorist
attacks as criminal acts or as acts of war. Second, his response to the terrorist attacks could have been
to act within the law or to assert claims of extra-constitutional authority. In respect to the first choice,
were he to have chosen the criminal law route, his options could have included using the United
Nations, international law, the International Court of Justice, and perhaps even the International
Criminal Court as forums and bodies to deal with terrorism and al-Qaeda who could be prosecuted for
various crimes including crimes against humanity. Bush chose war in two ways. First, in a speech
48
of September 20, 2001, President Bush coined the phrase war on terror to describe his response to the
events of 9-11 as well as to his efforts in combating terrorism around the world, and then on October
49
7, 2001, when, in another speech, he announced the commencement of military strikes against al-Qaeda
in Afghanistan. Second, Bush opted not to respond to the events of 9-11 within the law, instead, in
50
a series of memoranda his office offered a theory of a unitary presidency and claims of extra
51
constitutional presidential authority to support his militarized response to terrorism. But the responses
See: < http://www.whitehouse.gov/news/releases/2001/09/20010920-8.html > (site last
52
visited on January 16, 2006) for a copy of the speech.
See: < http://www.whitehouse.gov/news/releases/2001/10/20011023-33.html > (site last
53
visited on January 16, 2006) (comments of President Bush at a presidential press conference).
14
did not end here.
Within a short period of time after 9-11, Congress visibly acted by passing two major pieces of
legislation, i.e., the creation of the Department of Homeland Security, and the adoption of the Patriot
Act. Less visible or known responses at the time included several presidential orders, including those
related to the classification and treatment of captured or suspected terrorists, and the eventual ordering
of wire tapping on phone calls by the National Security Agency (NSA).
While President Bush vowed to vanquish terrorism, he also declared the lines demarcating
victory. First, victory would be not be achieved until every terrorist group of global reach has been
found, stopped, and defeated. Second, victory could not come at the price of America compromising
52
its basic values.
The object of terrorism is to try to force us to change our way of life, is to force us to
retreat, is to force us to be what were not. And thatstheyre going to fail. Theyre
simply going to fail. I want to assure my fellow Americans that our determinationI
say our, Im talking about Republicans and Democrats here in Washington -- has
never been stronger to succeed in bringing terrorists to justice, protecting our homeland.
Because what we do today will affect our children and grandchildren.
53
Exactly what the American way of life was, Bush was unclear, but possibly it included respect for
the Constitution and Bill of Rights, rule of law, and individual rights and liberties.
A. The Bush Presidency and the War on Democracy
For many, the way of life that Bush wished to preserve did not seem to include a respect for
American Civil Liberties Union <http://www.aclu.org/natsec/index.html> (Site last visitedon
54
January 22, 2006).
People for the American Way, <http://www.pfaw.org/pfaw/general/default.aspx?oid=9391
55
> (site last visited on January 22, 2006 ).
Amnesty International, Guantnamo detainees: 4 years without justice
56
(<http://web.amnesty.org/pages/usa-100106-action-eng > ) (site last visited on January 22, 2006).
I n t e r n a t i o n a l C o m m i t t e e o f R e d C r o s s ( <
5 7
http://www.icrc.org/Web/Eng/siteeng0.nsf/html/usa-detention-update-121205?OpenDocument >) (site
last visited on January 22, 2006).
15
democracy and constitutionalism, assuming both terms incorporated protection for individual rights and
liberties. The American Civil Liberties Union, for one, has been sharply critical of the Bush
Administration, stating that: Throughout U.S. history national security has often been used as a
pretext for massive violations of individual rights. The terrorist attacks on Sept. 11 mobilized our
country in the fight against terrorism. However, this also launched a serious civil liberties crises. The
54
People for the American Way condemned the Patriot Act as launching a war on terror [that] could
become a war on all American citizens because of its failure to provide meaningful judicial review and
respect due individual rights and liberties. Amnesty International has criticized the Bush
55
Administration for its prolonged detainment of individuals at Guantanamo Bay, and the International
56
Red Cross has decried the treatment of 9-11 detainees by the United States as a violation of international
human rights law.
57
To describe the full scope of civil liberties criticisms of Bushs war on terrorism would take
significant space. The criticisms are directed at both international actions of the Bush Administration,
as well as steps taken internally. Internationally, the Bush Administration is criticized for disregarding
international humanitarian law in his refusal to afford captured al Qaeda and Taliban prisoner of war
See, e.g.: HELEN DUFFY, THE WAR ON TERROR AND THE FRAMEWORK OF
58
INTERNATIONAL LAW, 249-271 (NY: Cambridge University Press, 2005).
See, e.g.: Duffy at 348-373.
59
Id. at 348-373 and 382-85.
60
Stephen Grey and Doreen Carvajal, Secret Prisons in 2 Countries Held Qaeda Suspects,
61
Report Says, N.Y. TIMES (June 8, 2007) at A14. Dana Priest, CIA Holds Terror Suspects in Secret
Prisons, WASHINGTON POST (November 2, 2005) at A1. See also: Lisbeth Kirk, European Courts
May Chal lenge US Terror Rendi ti o n s , EUObserver (November 14, 2005)
(<http://euobserver.com/9/20314??print=1>) (site last visited on January 22, 2006) and Craig
Whitlock, Europe Wants Answers on CIA Camps, WASH. POST (November 4, 2005) at A1(noting
European criticism that the CIA torture camps are illegal and may violate the European Convention on
Human Rights).
Alan Cowell, Britain Denies Memo Cited in Bush Treat, N.Y. TIMES (January 18, 2006)
62
at A6.
Eric Lichtblau, Libraries Say Yes, Officials Do Quiz Them About Users, N.Y. TIMES (June
63
20, 2005) at A11.
16
status. Criticism has also been directed at the Administrations failure to respect international
58
conventions that ban torture, and thereby encouraging mistreatment of prisoners at Abu Ghraib and
59
Guantanamo Bay. In addition, the United States has refused to confirm or deny that the Central
60
Intelligence Agency (CIA) has held alleged terrorists in secret prisons in Eastern Europe where they
have been tortured. Other reports have suggested that the United States has targeted journalists and
61
that, in fact, Bush suggested to Prime Minister Tony Blair that they target Al Jazeera reporters and
stations.
62
Domestically, many, such as the ACLU and People for the American Way, as noted above, have
criticized the Patriot Act as an assault on individual rights and privacy. For example, an American
Library Association study reports that the FBI has made at least 200 inquiries to libraries regarding
reading material and patrons. Prior to this study the government had not admitted to querying libraries
63
and because the Patriot Act prevents the latter from divulging whether they had been contacted by law
Eric Lichtblau, F.B.I., Using Patriot Act, demands Librarys Records, N.Y. TIMES (August
64
26, 2005) at A12. (noting that at least one lawsuit challenging these queries, as well as the ban on their
disclosure by libraries, was filed on August 9, 2005 by the ACLU).
Gary Fields and Ann Marie Squeo, Bipartisan Fix for Patriot Act Takes Shape, W..S. J.
65
(April 6, 2005) at A4.
Gary Fields and Ann Marie Squeo, Senate Blocks Patriot Act Renewals, W..S. J.
66
(December 17-18, 2005) at A3.
P.L. 109-170, 120 Stat. 3 (2006).
67
Id.
68
James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES
69
(December 16, 2005) at A1.
American Civil Liberties Union v National Security Agency, complaints for declaratory and
70
injunctive relief in United States District Court, Southern District of New York (January 17, 2006)
17
enforcement officials, little was known about how frequent this portion of the Act was invoked. In
64
addition, several states passed resolutions critical of the Acts impact on civil liberties, and critics in
65
Congress, including Senators Russ Feingold, Patrick Leahy, and Arlen Spector, were successful at the
end of December 2005, in preventing a reauthorization of the 16 expiring provisions of the law,
66
although eventually the Patriot Act was reauthorized, supposedly after several problems in the original
67
Act were addressed. Among concern of many in Congress was that the law allowed for spying on
Americans without warrants.
68
Other criticisms of the Bush Administration grow out of a December 16, 2005, New York
Times story reporting that soon after the 9-11 attacks, President Bush issued an order authorizing the
National Security Agency (NSA) to monitor international telephone conversations and e-mails by
Americans in an effort to uncover links to Al Qaeda and other terrorist groups. This monitoring or
69
wiretapping was done without court-approved warrants, as apparently required by the Foreign
Intelligence Surveillance Act of 1978. In response to this surveillance, the ACLU and the Center for
70
(available on the Internet at http://news.findlaw.com/legalnews/documents/archive_n.html#nsa) (Site
last visited on January 21, 2006).
Center for Constitutional Rights v George W. Bush, action for injunctive relief filed in
71
United States District Court, Southern District of New York (January 17, 2006) (available on the
Internet at http://news.findlaw.com/legalnews/documents/archive_n.html#nsa) (Site last visited on
January 21, 2006).
Neil A. Lewis, Bush Blocked Ethics Inquiry, Official Says, N.Y. TIMES, A14 (July 19,
72
2006).
Carl Hulse and Edmund L. Andrew, Democrats Feel Pressure on Spy Program, N.Y.
73
TIMES, A1 (August 5, 2007).
Eric Lichtblau and James Risen, Bank Data Sifted in Secret by U.S. to Block Terror, N.Y.
74
TIMES, A1 (June 23, 2006).
25 Code of Federal Regulations, 500-501, AG Order No. 2529-2001 (October 31, 2001).
75
Eric Lichtblau, F.B.I. Watched Activist Groups, New Files Show, N.Y. TIMES (December
76
20, 2005) at A1.
18
Constitutional Rights filed suits, challenging these actions, alleging, inter alia, that they violated the
71
First Amendment rights of its members and that the president lacked authority to order this electronic
monitoring. Efforts within the Justice Department to examine this issue were also blocked by the
president. While many in Congress expressed outrage to this surveillance, in the summer of 2007 they
72
authorized this activity.
73
The Bush Administration also had a secret program examining bank records of potentially
millions of Americans. His administration has been criticized for orders authorizing the detaining
74
of both American citizens and non-citizens suspected of being terrorists, when those individuals are
either denied access to attorneys (or have their conversations with them monitored) or civil courts.
75
Finally, The New York Times reported that the FBI monitored numerous advocacy groups after 9-11,
not just those with suspected terrorist connections, including Greenpeace and People for the Ethical
Treatment of Animals (PETA).
76
George Bush, Address to a Joint Session of Congress and the American People (September
77
2 0 , 2 0 0 1 ( L o c a t e d o n t h e I n t e r n e t a t <
http://www.whitehouse.gov/news/releases/2001/09/20010920-8.html >) (Site last visited on January
31, 2006).
See, e.g.: THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL
78
COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES, 328 (2004)
[hereinafter 9/11 COMMN REPORT) (stating that [a] central provision of the Administration
proposal that became the Patriot Act was the removal of the wall on information sharing between the
intelligence and law enforcement communities). See also: Paul Rosenzweig, Civil Liberty and the
Response to Terrorism, 42 DUQ. L. REV. 663, 688 (2004); Kim Lane Scheppele, Law in a Time of
Emergency: States of Exception and the Temptations of 9/11, 6 U. PA. J. CONST. L. 1001, 1038
(2004); Peter Swire, The System of Foreign Intelligence Surveillance Law, 72 GEO. WASH. L. REV.
1306, 1327 (2004) (describing the goal of the Patriot Act as tearing down the wall between law
enforcement and foreign intelligence gathering).
19
Overall, Bushs approach to civil liberties can best be captured in his September 20, 2001
speech to Congress when he first declared the war on terrorism: Every nation, in every region, now has
a decision to make. Either you are with us, or you are with the terrorists. From this day forward, any
nation that continues to harbor or support terrorism will be regarded by the United States as a hostile
regime. Bushs declaration of the war on terrorism, as well as his divisive you are with us or the
77
enemy statement, demarcated the world into a clear pattern of good and evil, posturing himself into the
position of McCarthyiting any who would oppose him or his measures. The cost of this
McCarthyismthe war on democracy and civil liberties.
B. Patriot Act
The war on terrorism breached a wall traditionally distinguishing foreign policy, national
security, or intelligence gathering from that of domestic law enforcement. Domestic law enforcement
78
is a policy area that must respect the constitutional protections and due process rights of those suspected
of committing crimes, including adherence to the Fourth Amendment warrant and search and seizure
See, e.g.: Weeks v. United States, 232 U.S. 383 (1914) and Mapp v. Ohio, 367 U.S. 643
79
(1961) (holding that the Fourth Amendment bars the use of illegally obtained evidence (without a
search warrant) to convict an individual of a crime).
See, e.g.: Miranda v Arizona, 384 U.S. 436 (1966) and Dickerson v. United States, 530
80
U.S. 428 (2000) (holding that the Fifth Amendment recognizes the right of a suspect in custody to
remain silent).
See, e.g.: Gideon v. Wainwright, 372 U.S. 335 (1963) (holding that individuals charged
81
with a felony have a right to counsel, included an appointed one if indigent, under the Sixth
Amendment.
See e.g: United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936) (stating
82
that [n]either the Constitution nor the laws passed in pursuance of it have any force in foreign territory
unless in respect of our own citizens, foreclosed any claim by respondent to Fourth Amendment rights.
More broadly, he viewed the Constitution as a compact among the people of the United States, and
the protections of the Fourth Amendment were expressly limited to the people); and United States
v. Verdugo-Urquidez 494 U.S. 259, 266 (indicating that: The available historical data show,
therefore, that the purpose of the Fourth Amendment was to protect the people of the United States
against arbitrary action by their own Government; it was never suggested that the provision was
intended to restrain the actions of the Federal Government against aliens outside of the United States
territory).
See, e.g.: Erwin Chemerinsky, Losing Liberties: Applying a Foreign Intelligence Model
83
to Domestic Law Enforcement, 51 UCLA L. REV. 1619, 1626 (2004).
Public Law 107-56 (USA Patriot Act of 2001), 18 U.S.C. 1 -1016).
84
20
requirements, Fifth Amendment rights to remain silent, and Sixth Amendment right to counsel,
79 80 81
among other rights. However, foreign intelligence gathering is generally exempt from a rigid
application of these protections. As a result, if domestic law enforcement need only follow the legal
82
standards of foreign intelligence gathering, individual rights and due process protections stand a good
chance of being sacrificed. One of the first instances of how the Bush Administration subsumed crime
83
control under national security imperatives was in the Patriot Act.
Signed into law by President Bush on October 26, 2001, the Patriot Act was described as an
84
important tool in the war on terrorism. In describing what the law does, it was meant to overcome
difficulties in investigating acts of domestic terrorism by enhancing the capacity of criminal justice
Charles Doyle, The US Patriot Act: A Legal Analysis (Congressional Research Service,
85
April 15, 2002).
Jennifer C. Evans, Hijacking Civil Liberties: the USA Patriot Act of 2001 33 LOY. U. CHI.
86
L.J. 933, 965 (2002).
50 U.S.C.A. 403-3(c)(6) (Supp. 2002). See also: John W. Whitehead and Steven H.
87
Aden, Forfeiting Enduring Freedom for Homeland Security: A Constitutional Analysis of the
Usa Patriot Act the Justice Departments Anti-terrorism Initiatives 51 Am. U. L. Rev. 1081, 1091
(2002).and
18 U.S.C. 203.
88
18 U.S.C. 204-209. Section 206 allows for wire tapping of specific individuals and not
89
just devices such as telephones.
21
officials to draw upon intelligence information. As summarized:
The Act grants federal officials greater powers to trace and intercept terrorists
communications both for law enforcement and foreign intelligence purposes. It
reinforces federal anti-money laundering laws and regulations in effect to deny terrorists
the resources necessary for future attacks. It tightens our immigration laws to close our
borders to foreign terrorists and to expel those amongst us. Finally it creates a few new
federal crimes, such as the one outlawing terrorists attacks on mass transit; increases
the penalties for many others; and institutes several procedural changes, such as a longer
statute of limitations for crimes of terrorism.
85
Among the major provisions of the 300 plus pages are ten separate sections that revise intelligence
gathering, immigration, criminal justice, and money laundering laws as they relate to fighting
terrorism. One sees in the Act a consolidation of crime control into foreign intelligence gathering with
86
the centralization of some domestic investigations to the CIA director.
87
But more specifically, among the major provisions of the Patriot Act, section II amends the
Foreign Intelligence Surveillance Act of 1978 and it includes the authorized disclosure or sharing of
grand jury information containing foreign intelligence to federal officials. It also increases the ability
88
of the federal government to use pen registries to intercept electronic communications, including the
Internet, and for roving surveillance such as cell phones. This information could now be shared with
89
18 U.S.C. 203(b).
90
18 U.S.C. 213.
91
18 U.S.C. 218.
92
18 U.S.C. 215.
93
See, e.g.: Rita Shulman, USA Patriot Act: Granting the U.S. Government the
94
Unprecedented Power to Circumvent American Civil Liberties in the Name of National Security, 80
U. DET. MERCY L. REV. 427 (2003); Jennifer C. Evans, Hijacking Civil Liberties: the USA Patriot
Act of 2001 33 LOY. U. CHI. L.J. 933, 965 (2002); John W. Whitehead and Steven H. Aden,
Forfeiting Enduring Freedom for Homeland Security: A Constitutional Analysis of the USA
Patriot Act and the Justice Departments Anti-terrorism Initiatives 51 Am. U. L. Rev. 1081, 1091
(2002); Jacob R. Lilly, National Security at What Price?: A Look into Civil Liberty Concerns in the
Information Age under the USA Patriot Act of 2001 and a Proposed Constitutional Test for Future
Legislation, 12 CORNELL J.L. & PUB. POLY 447 (2003).
22
the CIA director. Another provision of Part II provided delayed notification of required notices of
90
execution of warrants (the so called sneak and peak provision). Among the more controversial
91
features of the Act, it make it possible to search many private records, including medical and library
information, without having to show reasonable suspicion as required under the 4 amendment. The Act
th 92
also permitted the searching of library records and a ban of disclosure of such searches or inquiries.
93
Overall, the Patriot Act has been criticized by many as threatening civil liberties and individual
rights because it has unnecessarily conflated national security and domestic law enforcement
standards.
94
C. Assertion of Presidential War Powers and an Unified Executive
Congress, through the Patriot Act putatively gave the President the authority to engage in
increased domestic surveillance by way of congressional fiat. In addition, a congressional joint
Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat.
95
224 (2001).
Despite this resolution authorizing force, Congress also ambiguously stated in section 2 that
96
the statutory authorization to use force arose from the War Powers Resolution and also in section 1 that
the president has authority under the Constitution to take action to deter and prevent acts of
international terrorism against the United States. Id. See also: Curtis A. Bradley and Jack L.
Goldsmith, Congressional Authorization and the War on Terrorism, 2048, 118 HARV. L. REV. (2005)
(discussing the legal implications of this resolution in terms of the scope of presidential power to respond
to the events of 9-11).
John C. Yoo, The Presidents Constitutional Authority to Conduct Military Operations
97
Against Terrorists and Nations Supporting Them (September 25, 2001) (Yoo Memorandum).
23
resolution (authorization to use military force (AUMF)) of September 14, 2001 to use all
95
necessary and appropriate force against those nations, organizations, or persons he determines planned,
authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, . . .in order
to prevent any future acts of international terrorism against the United States by such nations,
organizations, or persons also appeared or has been invoked to give him extensive power to respond
to terrorist attacks. However, beyond congressional or legislative authorization, four Justice
96
Department memoranda also asserted inherent or extra-constitutional presidential power to respond to
terrorism. These the September 25, 2001 John Yoo memorandum describing presidential war making
powers, and a second legal opinion of January 22, 2002 addressing the treatment of al Qaeda and
97
Taliban detainees. The third memorandum is one from August 1, 2002, reviewing the classification and
treatment of al-Qaeda held outside the United States, while the fourth is a January 19, 2006 Department
of Justice Memorandum supporting Bushs decision to order the warrant less wiretapping of telephone
conversations by the National Security Agency.
These four memoranda, taken together, frame the Bush Administrations arguments for it
foreign policy and national security authority post 9-11 by asserting a unitary conception of presidential
The arguments found in this memorandum were subsequently elaborated upon in JOHN C.
98
YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11
(Chicago: University of Chicago Press, 2005).
Yoo Memorandum at 1.
99
Yoo Memorandum at 2 (citing Alexander Hamilton as stating about presidential war power
100
that the circumstances which may affect the public safety are [not] reducible within certain determinate
limits, . . . it must be admitted, as a necessary consequence that there can be no limitation of that
authority which is to provide for the defense and protection of the community in any matter essential
to its efficiency. ).
24
power that appears to be exempt from congressional oversight or regulation in foreign affairs and in the
conduct of war. While such an argument for presidential power may be questionable itself, combine
that assertion with the collapse of domestic criminal justice activity into foreign affairs and the result
is a significant broadening of claims of presidential powers in domestic and international affairs such
that it threatens basic constitutional norms and a respect for individual rights.
1. September 25, 2001 Memorandum
The John C. Yoo memorandum argues the president has extensive inherent authority to use force
against terrorists. To substantiate this claim, Yoo relies upon the structure of the Constitution,
98
judicial and executive construction of the Constitution, recent practice and tradition, and finally
congressional enactments authorizing use of force. First, in terms of the structure of the Constitution,
99
Yoo draws heavily upon the Founders constitutional intent, especially as glossed by Alexander
Hamilton in the Federalist Papers. For example, Yoo argues that:
100
The text, structure and history of the Constitution establish that the Founders entrusted
the President with the primary responsibility, and therefore the power, to use military
force in situations of emergency. Article II, Section 2 states that the President shall be
Commander in Chief of the Army and Navy of the United States, and of the Militia of
the several States, when called into the actual Service of the United States. U.S. Const.
art. II, 2, cl. 1. He is further vested with all of the executive Power and the duty to
Id. at 3 (footnotes omitted).
101
Yoo Memorandum at 2-3 (quoting Hamilton and Federalist 74).
102
Yoo Memorandum at 3-4.
103
25
execute the laws. U.S. Const. art. II, 1. These powers give the President broad
constitutional authority to use military force in response to threats to the national
security and foreign policy of the United States. During the period leading up to the
Constitutions ratification, the power to initiate hostilities and to control the escalation
of conflict had been long understood to rest in the hands of the executive branch.
101
For Yoo, the text of the Constitution, vests full control of military powers in the President to direct
military operations, even absent congressional declarations of war. The basis for this claim rests upon
a specific views of the presidency, again attributed to Hamilton, that asserts that the constitutional text
creates a unified executive power or presidency. It is this unified conception of the presidency, along
102
with the conveyance of executive power in the president, and a historical viewing of war powers and
foreign policy activity as an executive function, that gives this office the exclusive power that it has in
national security and defense issues.
103
Second, judicial and executive construction, according to the Yoo Memorandum, also endorses
a strong view of presidential power in national security issues. In terms of executive construction, part
II of the Memorandum outlines numerous occasions where the Attorney General or the Justice
Department has supported presidential supremacy if not exclusivity in this policy area. For example,
Yoo cites opinions of Attorneys General William Barr, Frank Murphy, and Thomas Gregory as arguing
the president had inherent constitutional authority to commit troops overseas, or to take military action
without congressional approval, in anticipation of events that would eventually lead to World Wars I
Yoo Memorandum at 6.
104
Id. at 8.
105
488 F.2d 611 (D.C. Cir. 1973).
106
488 F.2d 611, 613 (D.C. Cir. 1973).
107
Yoo Memorandum at 10.
108
Id.
109
Yoo Memorandum at 15.
110
Yoo Memorandum at 15; Sawyer at 635.
111
26
and II. Furthermore, the judiciary has endorsed these executive readings of the Constitution. For
104 105
example, in Mitchell v. Laird, a district court, in ruling on the constitutionality of the Vietnam War,
106
stated that there are some types of war which without Congressional approval, the President may begin
to wage: for example, he may respond immediately without such approval to a belligerent attack.
107
Appeal to practice and tradition is a third argument offered to support presidential exclusivity
in national security matters. Specifically, Yoo cites to what he claims are at least 125 times in
American history where troops have been committed overseas by the president without congressional
approval. This deference to presidential authority is a reflection, for Yoo, of the practical needs of
108
the Constitution to afford flexibility in assigning responsibility in the area of national security.
109
Finally, Yoo points both to the War Powers Resolution and the September 18, 2001 congressional
resolution as also demonstrating Congresss acceptance of the Presidents unilateral war powers in an
emergency situation like that created by the September 11 incidents. Invoking Justice Jacksons
110
famous concurrence in in Youngstown Sheet & Tube Co. that presidential power in foreign affairs is
at its maximum when given legislative support by Congress, these two acts of Congress clearly
111
endorse that the president has broad if not exclusive and unlimited power to acts in foreign affairs and
Yoo Memorandum at 17.
112
Id. Yoo also cites the September 18, 2001 resolution as the September 14, 2001 resolution.
113
Yoo (2005) at 40.
114
Yoo Memorandum at 17.
115
27
national security matters.
What are the overall implications of the Yoo Memorandum? First, as asserted in the
conclusion, Yoo argues that the president has plenary constitutional power to take military action,
as he deems appropriate, to respond to terrorist attacks. This power is inherent, regardless of what
112
Congress authorized in either the War Powers or September 18, resolutions. As subsequently
113
articulated in his book, the president has total control over foreign and military powers, with Congress
confined merely to either terminating funding or authorization for the military if it disapproves of what
the executive branch does. Third, Yoos memorandum sketches out a theory of a unified executive
114
and president with strict separation of powers, again leaving no room for Congress or the courts in the
field of national security. Fourth, in the conclusion of the Memorandum Yoo also states that the
president can deploy troops not just to retaliate but to prevent future attacks, thereby providing the
115
rationale for the Bush Administrations claim of anticipatory self-defense and the invasions of
Afghanistan and Iraq. Finally, the Memorandum seems to suggest, and actually does state, that there
appears to be no limit to presidential power in the field of national security, thereby setting the stage for
expansion of chief executive authority to make claims for expanded capacity to act beyond the text of
the Constitution.
2. January 22, 2002 Memorandum
A second legal opinion critical to the Bush Administrations assertion of presidential power to
Department of Justice, Office of Legal Council, Application of Treaties and Laws to al
116
Qaeda and Taliban Detainees (January 22, 2002) (available on the Internet at
http://news.lp.findlaw.com/hdocs/docs/torture/powtorturememos.html ) (site last visited on January 18,
2006) (Detainee Memorandum).
Detainee Memorandum at 1.
117
Id.
118
Detainee Memorandum at 4.
119
Detainee Memorandum at 6.
120
Detainee Memorandum at 7.
121
28
undertake the war on terrorism is the January 22, 2002 Memorandum addressing the treatment of al
Qaeda and Taliban detainees, which was drafted for Alberto Gonzales by the Office of Legal Counsel.
116
This memorandum sought to ascertain the application of international treaties, such as the Geneva
Convention Relative to the Treatment of Prisoners of War (Geneva III) and federal law to captured
members of al Qaeda and the Taliban. This Memorandum would conclude that Geneva III did not
117
apply to al Qaeda and that the President could also conclude that it would not extend protection to
members of the Taliban militia.
118
In seeking to understand the application of Geneva III, the Memorandum undertakes a historical
overview of the type of conflict and participants it was supposed to cover. In doing that, it first notes
that Geneva III structures legal relationships between nation-states, not between nation-States and
private, transnational or subnational groups or organizations. Second, in examining the type of
119
conflict Geneva III (and all the other Geneva Accords) were supposed to cover, the Memorandum
asserts that it is directed to a condition of civil war, or a large-scale armed conflict between a State and
an armed movement within its own territory. Thus, the framers of the 1949 Geneva Conventions
120
only had in mind armed conflicts between nation-States and civil war within a nation-State. It is in
121
Id.
122
Detainee Memorandum at 8.
123
Id.
124
Detainee Memorandum at 8.
125
Detainee Memorandum at 9.
126
Detainee Memorandum at 10.
127
Detainee Memorandum at 11.
128
29
these types of armed conflicts that Geneva III should be read.
122
Having set this context the Memorandum then reviews a history of warfare and conflict leading
up to the 1949 Accords. It concludes that only state-centered types of conflicts were envisioned in
the writing of Geneva III, and it is this type of warfare that the United States had in mind when it ratified
this treaty. The Memorandum then switches direction slightly, arguing that because state-centered
123
conflict was the type of warfare contemplated by Geneva III, it did not apply to all type of conflicts.
Had state parties. . .intended the Conventions to apply to all (emphasis in the original) forms of armed
conflict, they could have used broader, clearer language, according to the Memorandum. But given
124
the history and context at the time, the Geneva Convention drafters could not have contemplated that
it would address conflict between a nation-State and an international terrorist group such as al Qaeda.
125
Therefore, Geneva III does not apply to Al Qaeda and they do not qualify for prisoner of war (POW)
treatment.
126
Turning to the Taliban, the Memorandum notes that the application of Geneva III to them is a
more difficult legal question. To resolve this issue, the Memorandum turns to the text of Article II
127
of the Constitution, noting how it makes the president both Commander in Chief and how it vests in him
the executive power. Relying on similar historical and textual arguments as found in the Yoo
128
Detainee Memorandum at 12.
129
Detainee Memorandum at 12 (citing Alexander Hamiltons Pacificus No. 1 for this
130
proposition).
Detainee Memorandum at 12-13.
131
Detainee Memorandum at 15.
132
Detainee Memorandum at 16-22 (discussing historical factors and conclusions, some of
133
which were made by the executive branch, concluding that Afghanistan and the Taliban regime
constituted a failed state).
Detainee Memorandum at 23-25 does discuss whether a decision to suspend the treaty would
134
be valid under international law. Two arguments are made. First, any breaches of international law
would not be binding on domestic law in the United States. Second, nothing in the Geneva Conventions
says that they cannot be temporarily suspended and therefore the president may do this.
Detainee Memorandum at 25.
135
30
memorandum, the Detainee Memorandum asserts that the Constitution vests in the president
independent plenary foreign policy power, including any unenumerated powers that deal with foreign
affairs, including those that address treaties. If treaty power is an executive function, and if the
129
president has the power alone to suspend or continue treaties, then he has the lesser power of
130
temporarily suspending treaties.
131
Having argued that Geneva III only applies to nation-States and that the president has plenary
power to suspend (and implicitly, interpret) treaties, the Memorandum argues that the President could
conclude that Afghanistan is a failed state or a state in which its authority has collapsed. If it fact
132
the president could find that Afghanistan was a failed state, he could then also decide that Geneva III
133
does not apply to them, and therefore temporarily suspend the treaty obligations towards them. Thus,
while Geneva III is not binding on the United States as a matter of international law, the president
134
might apply it, or lesser standards, as a matter of policy.
135
The significance of the Detainee Memorandum are many. First, it relies on a logic of executive
Alberto R. Gonzales, Decision Re Application of the Geneva Convention on Prisoners of
136
War to the Conflict with Al Qaeda and the Taliban (January 25, 2002) (Application Memorandum).
Id. at 2.
137
Harold Hongju Koh, Can the President Be Torturer in Chief,? 81 IND. L. J. 1145, 1151.
138
United States Department of Justice, Office of Legal Council, Standards of Conduct for
139
Interrogation under 18 U.S.C. 2340-2340A (August 1, 2002) (available on the Internet at
http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf ) (Site
31
branch power in foreign affairs that parallels the Yoo Memorandum. Second, it argues that POW status,
asa matter of law, does not have to be applied to either the al-Qaeda or Taliban detainees. Third, it is
a matter of policy what status they should be afforded and therefore what treatment they should receive.
In terms of what status and treatment they should receive, in a January 25, 2002 Memorandum from
Alberto Gonzales to the president, he describes the war against terrorism as a new kind of war.
136
Because of that, the new paradigm [of conflict] renders obsolete Genevas strict limitations on
questioning of enemy prisoners and renders quaint some of its provisions regarding their treatment.
137
Finally, were the logic of this memorandum except, the president would appear to be able exempt from
criminal liability anyone who tortures. The Detainee and Application Memorandum thus sets the
138
putative legal authority of president to classify both sets of detainees as enemy combatants who would
be afforded presidentially-designated treatment at Guantanamo Bay and other facilities outside the
United States.
3. August 1, 2002 Memorandum
The August 1, 2002 Office of Legal Counsel Memorandum prepared for Alberto Gonzales
discusses the standard of conduct or treatment for those captured or detained as a result of the war on
terrorism. Better known as the torture memo, the memorandum examines what type of conduct can
139
last visited on January 17, 2005) (Gonzales Memorandum).
Gonzales Memorandum at 1.
140
Id.
141
Gonzales Memorandum at 2.
142
Id. at 3.
143
Gonzales Memorandum at 4.
144
Gonzales Memorandum at 4.
145
32
be conducted in interrogations outside the United States, consistent with the Convention Against Torture
and 18 U.S.C. 2340-2340A. In summary, the Memorandum concludes that only acts of extreme
140
natureequivalent to that found in death, organ failure, or serious bodily injuryconstitute torture
and that merely cruel, inhumane, or degrading action does not rise to the level of a violation of either
the Convention Against Torture or Section 2340A.
141
To reach the above conclusions, the Memorandum first turns to 18 U.S.C. 2340A which makes
it a criminal offense for anyone outside the United States to commit or attempt to commit torture.
142
Torture is defined in 2340 as an act committed by a person acting under the color of law specifically
intended to inflict severe physical or mental pain or suffering . . .upon another person. The
143
Memorandum contends that 2340A applies only if the specific intent was to inflict pain as the
defendants precise objective. If, however, the defendant acts with the belief that such pain was only
reasonably likely as a result of his actions, then there is only general intent and therefore the act does
not apply as torture under the law. Thus, if the goal is to inflict serve pain, then it is torture, but if in
144
the course of interrogation pain is inflicted in order to extract information, that does not qualify as
torture because inflicting pain was not the goal of the conduct.
145
Id. at 5.
146
Id. at 7-11.
147
Gonzales Memorandum at 14.
148
Id.
149
Id. at 16 (citing S. Treaty Doc. No. 100-20, at 4-5). See also: Gonzales Memorandum at
150
20, dismissing non-executive branch interpretations by stating that beyond statements of Executive
branch officials, the rest of the ratification record is of little weight in interpreting a treaty).
Presumably this statement encompasses Senate debate on CAT.
Gonzales Memorandum at 27-31 (noting also how such international decisions are not
151
binding on the United States).
33
Second, the Memorandum notes that only severe pain is barred by 2340. In seeking to
146
interpret what severe pain is, the Memorandum draws upon other federal statutes and 18 U.S.C.
2340A to conclude that it encompasses only severe mental pain or suffering, threat of imminent death,
or the use of drugs which profoundly disrupt the senses or personality.
147
This Memorandum next turns to the Convention Against Torture (CAT) to ascertain what
it prohibits. The Memorandum again notes that CAT prohibits only severe pain or suffering, but
148
unlike 2340, it does not appear to have a specific intent requirement. However, to support a reading
149
that CAT only applies to extreme forms of physical or mental harm, the Memorandum appeals to
executive branch interpretations of the treaty. It cites Reagan Administration views that the
interrogation must use deliberate and calculated techniques intended to inflict excruciating and
agonizing physical or mental pain or suffering.
150
Finally, after a quick review of how other bodies and states have viewed torture, the
151
Memorandum then turns to a similar logic regarding presidential power as found in the Yoo
Memorandum. Specifically, the former contends that even if interrogation methods used violated
2340A, this statute would be unconstitutional because it interfered with the presidents core war
Gonzales Memorandum at 31. See also Gonzales Memorandum at 38 (arguing that
152
capturing, detaining, and interrogating members of the enemy is a core function of the Commander
in Chief).
Id. at 33.
153
Gonzales at 34.
154
United States Department of Justice, Legal Authorities Supporting the Activities of the
155
National Security Agency Described by the President (January 19, 2006) (available on the Internet
at http://news.findlaw.com/legalnews/documents/archive_n.html#nsa) (Site last visited on January 21,
2006) (Wiretapping Memorandum).
34
powers. Because the president enjoys complete discretion in terms of how to use his Commander-
152
in-Chief powers and because executive power is invested in the president, laws, including 2340A,
153
must be read so as note to interfere with his constitutional authority.
154
To summarize: 2340A only applies to severe physical or mental suffering if the specific intent
is to inflict this type of pain. Second, presidential interpretations of CAT only bars this type of infliction
of pain. Third, even if 2340A does apply, it would be unconstitutional if it also interfered with
presidential war making powers. How do we know if it does interfere? It seems mere presidential
declaration that it does is sufficient.
4. January 19, 2006 Memorandum
The fourth Memorandum that frames the Bush Administrations legal justification for the war
on terrorism is the January 19, 2006 Memorandum defending the presidents ability to order
wiretapping of telephone conversations without a warrant.
155
On December 16, 2005, the New York Times broke a story reporting that soon after the 9-11
attacks, President Bush issued an order authorizing the National Security Agency (NSA) to monitor
international telephone conversations and e-mails by Americans in an effort to uncover links to al Qaeda
James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y.
156
TIMES (December 16, 2005) at A1.
Id. See also: Foreign Intelligence Surveillance Act (FISA) as amended as 50 U.S.C.
157
1801-1862 (2000 & Supp. II 2002). Passed in light of revelations that Richard Nixon had ordered
domestic spying on personal enemies and reporters, FISA constructed a process whereby the president
could obtain a warrant from a special federal court to place wiretaps telephones and other
communication devices, if needed for national security and intelligence gathering reasons. In some
cases, the wiretaps could be authorized prior to a warrant being issued, but one had to be obtained from
the special court within three days.
David E. Sanger, In Speech, Bush Says He Ordered Domestic Spying, N.Y. TIMES
158
(December 18, 2005) at A1.
James Risen and Eric Lichtblau, Spy Agency Mined Vast Data Trove, Officials Report,
159
N.Y. TIMES (December 24, 2005) at A1.
Wiretapping Memorandum at 6-7.
160
Id. at 7.
161
35
and other terrorist groups. This monitoring or wiretapping was done without court-approved
156
warrants, as apparently required by the Foreign Intelligence Surveillance Act of 1978. Subsequently,
157
on December 17, President Bush acknowledged that he ordered the spying, with the exact scope of
158
the number of individuals or communication spied on unknown. Significant controversy followed
159
this revelations of spying, with members of Congress, such as Senator Arlen Spector, contending that
the president had violated FISA. This forced the president to defend the program numerous times,
culminating in the January 19, 2006 memorandum.
The Wiretapping Memorandum retraces similar ground as the other three memoranda in terms
of assertions of presidential power. It too cites Article II vesting of executive power in the president, as
well as the power of Commander in Chief, as creating a unitary chief executive who is preeminent in
the field of national security and defense. In addition to again relying heavily upon Alexander
160
Hamiltons views on executive power, the Wiretapping Memorandum also relies upon dicta in United
161
299 U.S. 304 (1936).
162
299 U.S. at 319; Wiretapping Memorandum at 6.
163
Wiretapping Memorandum at 7.
164
Wiretapping Memorandum at 8.
165
Id. See also: United States v. Truong Dinh Hung, 629 F.2d 908 (4 Cir. 1980).
166 th
United States v. United States District Court, 407 U.S. 297 (1972) (holding that the Fourth
167
Amendment warrant requirement applies to investigations of domestic threats to security). The
Wiretapping Memorandum at 8, argues that because the Court had not ruled on the Presidents
authority to conduct foreign intelligence surveillance without a warrant and that subsequently lower
courts had concluded the president could do this, therefore he did have this authority.
Wiretapping Memorandum at 18.
168
36
States v. Curtiss-Wright Export Corporation describing the president as the sole organ of the nation
162
in its external relations.
163
The Memorandum then asserts a conclusion that because of his preeminent authority in national
affairs, a consistent understanding has developed that the President has inherent constitutional authority
to conduct warrant less searches and surveillance within the United States for foreign intelligence
purposes. To support this conclusion, the Memorandum cites to legal opinions by previous attorneys
164
general as well as lower federal court opinions and Supreme Court dicta. After asserting this
165 166 167
inherent presidential power, the Wiretapping Memorandum, like the other three Memoranda, cites to
the September 18, congressional Authorization to Use Military Force as additional support for Bush to
order the warrant less wiretaps. More importantly, it is this congressional authorization that provides
the legal justification to bypass FISA.
According to the Wiretapping Memorandum, FISA regulates electronic surveillance when it is
in the context of gathering foreign intelligence information. The Act requires the Attorney General
168
to obtain a warrant from a special court of Article III judges if it wishes to engage in electronic
Wiretapping Memorandum at 18; 50 U.S.C. 1803-1805.
169
Wiretapping Memorandum at 19-20.
170
Wiretapping Memorandum at 20 (italics in the original).
171
Wiretapping Memorandum at 23.
172
Wiretapping Memorandum at 36-38 (dismissing Fourth Amendment objections by
173
asserting that the courts have affirmed presidential authority to gather foreign intelligence without a
warrant, or that the warrant requirement does not apply to activities of the NSA).
Wiretapping Memorandum at 28.
174
Compare: Sec. 204 of FISA (stating that nothing in code provisions regarding pen
175
registers shall be deemed to affect the acquisition by the Government of specified foreign intelligence
information, and that procedures under FISA shall be the exclusive means by which electronic
surveillance and the interception of domestic wire and oral (current law) and electronic communications
may be conducted) (italics added).
37
surveillance. In addition, FISA requires that the warrant application must show probable cause to
believe the person or agent targeted is a foreign power or agent of a foreign power, and the NSA must
also certify that the information sought is foreign intelligence and it cannot be obtained by normal
domestic means. According to the Wiretapping Memorandum, Congress did not intend FISA either
169
to limit presidential power in time of war, or prohibit him from engaging in all forms of electronic
surveillance. Instead, section 109 of FISA only prohibits such surveillance except as authorized
170
by statute. The September 18, congressional resolution to use force, according to the Memorandum,
171
is then described as a statute authorizing electronic surveillance within the meaning of section 109
of FISA. Finally, the Memorandum argues that even if there are questions about whether FISA or
172
the Fourth Amendment barred the wiretapping, the interpretive rule of seeking to avoid constitutional
173
questions should weigh on the side of the presidents authority.
174
In sum, the surveillance of telephone and e-mail communications is legal because: 1) the
president has inherent power to act in national affairs; or 2) FISA does not prevent it ; or 3) FISA
175
Phillip J. Cooper, George W. Bush, Edgar Allen Poe, and the Use and Abuse of
176
Presidential Signing Statements, 35 PRES. STUDIES Q. 515, 516-20 (2005).
Id.
177
Charles Savage, Bush Challenges Hundreds of Laws, BOSTON GLOBE, A1 (April 30,
178
2006).
38
allows for some exceptions and Congress authorized it with its September 18, resolution; or 4) the
Fourth Amendment does not apply to foreign intelligence gathering or NSA activities; or 5) the rule of
constitutional avoidance should weigh in favor of executive authority.
5. Presidential Signing Statements
Presidential signing statements have been tactically used by the Bush Administration to reinforce
executive power, especially in the areas of foreign policy and military affairs. These statements, issued
at the time when the president signs a bill, have been around since the early days of the republic.
176
However, it was Attorney General Ed Meese during the Reagan presidency who pushed the idea of
using signing statements as a way of interjecting the intent or understanding of the president regarding
what a particular law meant. The hope was to then have this interpretation of the law guide judicial
construction of it in court. Yet the Bush presidency has transformed the signing statements into a
177
major tool to defend its conception of presidential power as articulated in the four Memoranda.
Since taking office, the Bush has used these signing statements to claim authority to disobey
or ignore the law in more than 750 situations. In an earlier statistical analysis of these signing
178
statements, Phillip Cooper found that of the 505 signing statements, 82 were in regards to authority to
supervise a unitary executive, 77 regarding exclusivity of presidential in power foreign affairs, 48 in
regards to presidential power to classify national security information and withhold information, and
Cooper at 522.
179
American Bar Association, Task Force on Presidential Signing Statements and the
180
Separation of Powers Doctrine, 16 (American Bar Association, July 24, 2006).
Id.
181
President's Statement on Signing of H.R. 2863, the "Department of Defense, Emergency
182
Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza
Act, 2006,Available at < http://www.whitehouse.gov/news/releases/2005/12/20051230-8.html > (site
last visited on August 6, 2006).
39
37 addressed commander-in-chief issues. Not a surprise, the signing statements clumped around
179
foreign policy and defense issues. Among the more prominent signing statements, the one indicating
that the president did not have to comply with the McCain Amendment that barred U.S. officials from
using torture, cruel, and inhuman treatment against prisoners.
180
These signing statements echo many of the themes addressed in the Memoranda defending
presidential exclusivity or supremacy in foreign policy and defense matters. For example, in his
181
signing statement for the McCain Amendment Bush asserted:
The executive branch shall construe Title X in Division A of the Act, relating to
detainees, 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, which will assist in achieving the
shared objective of the Congress and the President, evidenced in Title X, of protecting
the American people from further terrorist attacks. Further, in light of the principles
enunciated by the Supreme Court of the United States in 2001 in Alexander v.
Sandoval, and noting that the text and structure of Title X do not create a private right
of action to enforce Title X, the executive branch shall construe Title X not to create a
private right of action. Finally, given the decision of the Congress reflected in
subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28,
United States Code, shall apply to past, present, and future actions, including
applications for writs of habeas corpus, described in that section, and noting that section
1005 does not confer any constitutional right upon an alien detained abroad as an
enemy combatant, the executive branch shall construe section 1005 to preclude the
Federal courts from exercising subject matter jurisdiction over any existing or future
action, including applications for writs of habeas corpus, described in section 1005.
182
American Bar Association at 7-10.
183
American Bar Association at 5, 9, 19.
184
Neil Kinkopf, The Statutory Commander in Chief, 81 INDIANA L. J. 1169, 1190-1 (citing
185
Talbot v. Seeman, 5 U.S. 1 Cranch 1, 10 (1801) and Murray v. Schooner Charming Betsy, 6 U.S. (2
Cranch) 64, 118 (1804)).
Kinkopf at 1192 (citing Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118
186
(1804)).
40
Within this statement there is the assertion of a unitary presidency and an of presidential supremacy
within foreign and military affairs. In effect, the statement is one indicating a willingness to disregard
the Amendment. Thus, characteristic of the Bush signing statements that distinguish them from
previous presidents is that they are not merely ceremonialthey envision a decision not to comply with
the law.
183
Legally, there are several problems with these statements. As the American Bar Association
points out, there is no constitutional authorization for these statements in the sense that they create new
authority for the president. Either the president can sign or veto a bill, but there is no authority to sign
and then issue a statement indicating unwillingness to comply; this raises a separation of powers
problem. A second issue is that even if the president can issue these statements, what effect should
184
they be given when the courts construe a statute? According to Neil Kinkopf, in Court decisions dating
back to John Marshall: Presidents interpretation of his own authority was not entitled to deference
and was to be given no weight in construing a statute. Kinkopf, also points out that historically, the
185
Court has interpreted presidential power in foreign affairs against a background of international law.
186
This interpretive strategy is contrary to how the Memoranda seem to assert an understanding of
executive power. Finally, the authority asserted by Bush in these signing statements is contrary to what
1 Cranch 137 (1803).
187
358 U.S. 1, 18 (1958).
188
41
the Court stated in Cooper v. Aaron in reference to Marbury v. Madison : This decision declared
187
the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution,
and that principle has ever since been respected by this Court and the Country as a permanent and
indispensable feature of our constitutional system. Whatever the Bush administration may think,
188
its interpretation of the law through these signing statements is neither definitive nor controlling upon
the judiciary.
5. Summary
Overall, the above four Memoranda and the signing statements rest upon a conception of
presidential power that appears to place the office beyond congressional or judicial limits or control
when it comes to national defense or security. Collectively, they give the president near unlimited
authority to interpret treaties, deploy troops, or take any other action to protect national security. As
a result of this ascription of presidential power, it set the stage not simply for a war on terrorism, but one
on democracy, constitutionalism, and international law.
How accurate is this sketch of presidential power which is described as the Unitary Executive
theory? There is no question that it offers a wooden theory of the presidency that emphasizes a strict
separation of powers model of government. It is a model that even criticizes New Deal jurisprudence
for improperly encroaching upon presidential power. The subsequent Yoo book concludes that the War
Powers Act is unconstitutional for the same reason. But more troubling are several of Yoos
assumptions. For one, as later articulated in his book, Yoo draws questionable conclusions based upon
Yoo at 62.
189
542 U.S. 507 (2004).
190
42
silence. For example, he asserts: If we think of the allocation of war powers among the British and
colonial governments as the background on which state constitutions were drawn, state silence suggests
an acceptance of the British approach. Inferring from silence is always a precarious move, and too
189
much of the reasoning of the book does that.
Another problem is the effort to freeze and unfreeze the meaning of the Constitutional text at the
same time. Yoo starts with questionable discussions of how Hamilton (who barely attended the
Constitutional Convention and whose views on presidential power were not taken seriously even by the
framers) viewed the Constitution. He then moves to how the ratifiers viewed foreign affairs and
national security. He then argues that he will not rely as much on subsequent case law (which does not
consistently support him) to show how foreign policy power must be vested in plenary fashion in the
president while decision making remains open to contemporary demands. Each of these steps contains
questionable history and dubious logic.
In addition, one is left asking is the Constitutions meaning on national security issues fixed or
open, and if open, why does it seem to consistently favor the presidency over Congress? In supporting
his view of presidential power Yoo consistently relies upon questionable executive department self-
interested assertions of authority, with such articulations bearing little weight in law or objectivity.
Moreover, no thought is given either to how American conceptions of constitutionalism differed from
British views by 1787, or how the Constitution of 1787 and it augmentation of power was rebalanced
by the subsequent adoption of the Bill of Rights in 1791 and future amendments. Overall, as aptly
stated by Justices Scalia and Stevens in dissent in Hamdi v. Rumsfeld after reviewing the historical
190
542 U.S. at 569.
191
MAX FARRAND, ED., THE RECORDS OF THE FEDERAL CONVENTION OF 1787, v. I, 300 (Yale
192
University Press, 1966) (emphasis added).
ALEXANDER HAMILTON, FEDERALIST, NO. 69, 447 (Modern Library, 1937) (emphasis
193
added).
Farrand at 65 (quoting James Madison as indicating how Rutlidge, while preferring a single
194
president, did not want to give him the power of war and peace); and JAMES MADISON, NOTES ON THE
43
efforts in England to limit monarchial power and in the American colonies to address the abuses of King
George III: A view of the Constitution that gives the Executive authority to use military force rather
than the force of law. . . flies in the face of the mistrust that engendered these provisions.
191
Conversely, one can invoke text, framers intent, scholarly commentary, and history to refute
Yoo. For example, the plain language of the text of the Constitution argues against Yoos claim that
Congress has a minimal role in foreign policy and war activities. Article I, section 8 contains no less
than ten clause that recognize Congress authority in these activities, including the power to declare war.
Article II, section 2 only vests in the president three powers in these areasserve as commander-in-
chief, and make treatises and appointment ambassadorswith the latter requiring concurrent Senate
approval.
Framers intent also speaks against Yoos interpretations. For example, Alexander Hamilton
argued at the constitutional convention for extensive presidential powers in war making, but even here
he noted that the executive would have the power to make war or peace, with the advise of the
senate. But later in Federalist no. 69 he downplays presidential power, stating that he would be
192
commander-in-chief when called into actual service of the United States. Neither of these
193
statements seem to support that even Hamilton supported giving presidents the power Yoo asserts.
Others, moreover, at the convention and in ratification debates, also expressed skepticism and
194 195
DEBATES IN THE FEDERAL CONVENTION OF 1787, 476 (Norton Library 1969( quoting Sharman as
stating that: The Executive shall be able to repel and not to commence war). Note also on page 476
that the convention delegates vote to reject giving the president war making power.
Patrick Henry and James Madison Debate Constructive Rights and the Use of the Militia,
195
in The Debate on the Constitution, v. II, 701, 702-3 (Library of America, 1993) (describing how only
Congress could call out the militia).
Fisher at 2.
196
Id. at 2.
197
Fisher at 12-14; LOUIS HENKIN, CONSTITUTIONALISM, DEMOCRACY, AND FOREIGN AFFAIRS,
198
23 (Columbia University Press, 1990).
44
concern about vesting war making power in the president.
Both scholarly analysis and history argue against Yoos positions. For example, Fisher argues
that while the Framers knew of the British model to vest war making and military power in the king,
they firmly rejected doing that both in the Articles of Confederation and in the Constitution. In fact,
196
Fisher notes how Article 9 of the Articles of Confederation transferred all war and foreign policy power
to Congress, thereby representing the sharpest indication of their desire to break with the British
model. Thus, by the time the new Constitution came about, executive power in this area was already
197
limited, subject to whatever the Convention decided to give back to the president. Moreover, when it
comes to the phrase commander-in-chief, both Fisher and Henkin contend that this phrase was meant
to do no more than to ensure that the military remained under civilian control during wars that would
be initiated by Congress, and after they authorized the troops. Whatever history Yoo offers to support
198
his views, recent events such as the passage of the War Powers Act and the Foreign Intelligence
Surveillance Act, indicate that past acquiescence to giving presidents broad leeway in military and
foreign policy arenas has met legislative disapproval in Congress.
Finally, one can respond to Yoo and the Memoranda by appealing to the core values of
Dyzenhaus at 61-2. See also: RONALD DWORKIN, TAKING RIGHTS SERIOUSLY, 27
199
(Cambridge: Harvard University Press, 1978).
Id. at 61, 196-200.
200
45
democracy, constitutionalism, and Liberalism. All threedrawing upon Fuller and Dyzenhausframe
an inner morality or set of values that define the operation of American law, institutions, and actors.
As Dyzenhaus argues, there are moral principles operating in the law that cover situations similar to
what Ronald Dworkin proposed when criticizing legal positivism. What this means for the former
199
is that emergencies do not create constitutional black holes devoid of legal or moral guidance.
200
Instead, the exercise of authority, even by the president in times of emergencies, should still respect rule
of law, the concept of checks and balances, and respect for rights. In is inconceivable that assertions of
a Unitary Presidency unchecked by the legislative and judicial branches, and able to disregard rights,
is compatible with the core values of democracy, constitutionalism, and Liberalism. At their core these
values stand for limits on power, regardless of who is acting and for what reason. The constitutional
framers created a president, not a king or dictator, and it is unlikely that they would have endorsed this
assertion of executive power. Instead, as the constitutional provision for the suspension of habeas
corpus demonstrates, the Constitution seems to anticipate emergencies and incorporates them into how
it operates. Nowhere does the Constitution either explicitly or implicitly endorse the idea that it
provisions operate only in times of peace and tranquility.
In sum ,the four Memoranda of the Bush Administration, as well as the ideas implicit in the
signing statements, rest on very weak foundations. They mythologize presidential authority, foisting
an image of executive power in conflict with democratic, liberal, and constitutional values that support
limited government, rule of law, and respect for individual rights.
See: < http://www.whitehouse.gov/news/releases/2001/10/20011023-33.html > (site last
201
visited on January 16, 2006) (comments of President Bush at a presidential press conference).
46
III. American Democracy on Trial
The Bush Administrations war on terrorism can be judged on several fronts. First one can ask
if the terrorists have won? By that, Bush said that the object of the terrorists was to force us to change
our way of life, is to force us to retreat, is to force us to be what were not. Has the war on terrorism
201
precipitated a war on democracy, including basic civil liberties? Taken together, the Patriot Act and the
presidential assertions of power do threaten American democracy, and the Supreme Court has responded,
although not directly, with a mixed record of rejecting many of Bushs claims.
Second, one can judge the war on democracy in terms of success. Has Bushs efforts led to the
capture and conviction of terrorists? For the most part, the war on terrorism has not produced the
capture or conviction of major al Qaeda or Taliban principals, and it has also thwarted international
cooperation in securing the same.
A. The Courts respond
Thus far the United States Supreme Court has ruled in four cases addressing legal issues
stemming from the war on terrorism and the presidents assertion of presidential power. In the , the
Court has generally rejected Bushs broad claims of presidential authority, although a majority of the
Justices have been unwilling to directly challenge assertions of a unitary president and supremacy in
foreign affairs and war making powers. In addition to the Supreme Court, several lower courts have
also heard various challenges to legal claims arising out of the war on terror, yielding few victories for
President Bush.
542 U.S. 507 (2004).
202
542 U.S. at 510.
203
542 U.S. at 510-511.
204
542 U.S. at 509.
205
47
1. Hamdi v. Rumsfeld
In Hamdi v. Rumsfeld the Supreme Court ruled that an American citizen could not be held
202
indefinitely on American soil without a right to habeas corpus review. The significance of the Hamdi
decision was that it limited the ability of the President to detain American citizens in the war on
terrorism after September 11, 2001, and it reaffirmed the basic right of Americans to have a judge
determine whether they have been illegally detained.
Yaser Hamdi, an American citizen, was captured in Afghanistan, and he was classified as an
enemy combatant because he had supposedly taken up arms against the United States. Hamdi was
203
placed in indefinite detention in a naval brig in South Carolina, and denied access to legal counsel.
Hamdis father sought habeas corpus review for his son in federal court, claiming that the incarceration
violated the Fifth and Fourteenth Amendments. The district court ruled in favor of Hamdi, ordering
204
him released, and the Fourth Circuit Court of Appeals reversed. The Supreme Court reversed, holding
that Hamdi was entitled to a hearing before a neutral decision maker to determine the factual basis for
why he was being held.
205
Justice OConnor wrote for a four person plurality that also included Chief Justice Rehnquist
and Justices Kennedy and Breyer. In this opinion OConnor first states that: The threshold question
before us is whether the Executive has the authority to detain citizens who qualify as enemy
542 U.S. at 516.
206
542 U.S. at 516-517 (noting how Congress did authorize Hamdis detention with the
207
AUMF).
317 U.S. 1 , 20 (1942).
208
542 U.S. at 519.
209
542 U.S. at 520-23.
210
542 U.S. at 525.
211
Id. at 527 (describing the Bush Administrations position as the most extreme rendition
212
of a separation of powers argument).
48
combatants. OConnor indicates the president asserts that he has inherent Article II authority to
206
detain individuals, but the Court decides not to address this issue, instead whether the detention is
permitted, pursuant to the September 18, congressional authorization to military force (AUMF).
207
Citing Ex parte Quirin for the proposition that American citizens may be held as enemy
208
combatants, the plurality stated that Congress could not do this indefinitely. Moreover, even
209 210
recognizing the power of Congress to fight the war on terrorism and authorize the detention of those
considered to be enemy combatants, the basic principles of the federal habeas corpus law grant
American citizenseven though captured on foreign soil during combatyet being detained on
American soil, some right to contest the factual basis for why they are being incarcerated.
211
Justice OConnor also addressed a second claim made by the president that the courts should
not second guess him when it comes to decisions made regarding military matters. While
acknowledging the important separation of powers argument here and the respect that the courts ought
to afford the president when it comes to sensitive foreign policy and military matters, OConnor
212
argued that the interest Hamdi had in the protection of his rights outweighed the interest the government
542 U.S. at 533.
213
Id.
214
542 U.S. at 535-536.
215
542 U.S. at 536.
216
542 U.S. at 541.
217
49
had in detaining him without granting access to the courts. In short, OConnor and the four person
213
plurality opinion did not see judicial review of Hamdis detention as posing a major threat or having
a dire impact upon the governments war making functions.
214
In sum, OConnors opinion rejections many of the separation of powers arguments made by
Bush, including those related to minimal questioning of an expansive presidential power by the courts.
. . .[W]e necessarily reject the Governments assertion that separation of powers
principles mandate a heavily circumscribed role for the courts in such circumstances.
Indeed, the position that the courts must forgo any examination of the individual case
and focus exclusively on the legality of the broader detention scheme cannot be
mandated by any reasonable view of separation of powers, as this approach serves only
to condense power into a single branch of government. We have long since made clear
that a state of war is not a blank check for the President when it comes to the rights of
the Nations citizens. Youngstown Sheet & Tube, 343 U.S., at 587, 72 S.Ct. 863.
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.
215
For the majority, the war power does not remove constitutional limitations safeguarding essential
liberties, thereby placing a limit on any congressional authority to detain Hamdi.
216
In a separate concurrence, Justices Souter and Ginsburg generally agree with the OConnor
opinion, but they also questioned whether the congressional resolution authorized Hamdis detention.
217
Specifically, they cite the Non-Detention Act (18 U.S.C. 4001(a)) which places limits upon the
542 U.S. at 542.
218
542 U.S. at 547-548.
219
542 U.S. at 554.
220
Id.
221
542 U.S. at 573-74.
222
542 U.S. at 568 (stating that the proposition that the Executive lacks indefinite wartime
223
detention authority over citizens is consistent with the Founders general mistrust of military power
permanently at the Executives disposal).
50
ability of Congress to authorize the detention of American citizens. This act, passed in response to
218
the internment of Japanese-Americans during World War II, required very clear and manifest authority
by Congress before the president could detain American citizens. In this case, Souter and Ginsburg did
not see that clear authority in the AUMF.
219
Finally, in dissent, Justices Scalia and Stevens take an even stronger position than the plurality
and concurring opinions when it comes to the constitutionality of Hamdi being held without review.
For Scalia and Stevens, they see a trial for treason as the traditional way to try citizens who have waged
war against the United States. If this option is not selected, then every citizen is entitled to a habeas
220
corpus review fore the reasons of detention, unless Congress has suspended that right. Given that
221
Congress had not suspended habeas, the AUMF cannot permit an indefinite detention of an American
citizen. Moreover, the Scalia dissent also rejects the contention that the president, even in wartime,
222
has the power to order an indefinite detention of a citizen.
223
545 U.S. 466 (2004).
224
542 U.S. at 470-472.
225
Id.
226
542 U.S. at 472-73.
227
51
2. Rasul v. Bush
The Hamdi opinion was issued the same day that Rasul v. Bush was decided. In Rasul v.
224
Bush the United States Supreme Court ruled that aliens being held in confinement at the American
military base in Guantanamo Bay, Cuba were entitled to have a federal court hear challenges to their
detention under the federal habeas corpus statute.
As a result of United States military action after 9-11 into Afghanistan against al Qaeda and
the Taliban, approximately 640 non-Americans were captured and then relocated to the United States
military base in Guantanamo Bay, Cuba where they were being held indefinitely, and without access
to legal counsel and the federal courts. Among those detained, claiming innocence, and wishing to
225
be freed, were Shafiq Rasul and Fawzi Khallid Abdullah Fahad Al Odah, neither of whom were United
States citizens.
226
Relatives of these two individuals filed actions in U.S. District Court for the District of
Columbia, challenging the detentions. First the federal district court and then the court of appeals for
the District of Columbia dismissed the cases, claiming that the courts lacked jurisdiction to hear the
challenges. In both of these cases relatives of the detainees sought habeas corpus review, but it was
denied.
227
Writing for the Court, Justice Stevens ruled that these detainees were entitled to a review of their
detention. Stevens first notes that habeas corpus is the constitutional right of individuals to have a judge
542 U.S. at 473.
228
Id.
229
542 U.S. at 475.
230
542 U.S. at 480.
231
542 U.S. at 475.
232
339 U.S. 763 (1950).
233
542 U.S. at 475-76.
234
52
review the reasons why a person has been detained. Habeas corpus is the legal means individuals may
228
use to challenge what they think may be an illegal imprisonment by requesting that the person holding
them explain to a judge they reasons for their confinement. Both Article I, section 9, clause 2 of the
Constitution, as well as 28 United States Code section 2241 provide for habeas review. While the
229
law is well established that American citizens being held in the United States are entitled to habeas
corpus review, there seemed to be some uncertainty regarding whether noncitizens held in Guantanamo
Bay, Cuba enjoyed habeas review.
230
One issue is the status of Guantanamo Bay and whether it was sovereign territory of the United
States. In 1934 Cuba granted the United States a lease to Guantnamo Bay so long as the based was
being used. In turn, the United States recognized Cubas sovereignty over Guantanamo Bay. Stevens
231
concluded that the control of it by the United States was so plenary and exclusive that while
232
Guantanamo Bay was not sovereign territory of the United States, it was still under its jurisdiction and
therefore the ruling in Johnson v. Eisentrager did not apply. In Eisentrager the Court had ruled
233 234
that the courts lacked jurisdiction to grant habeas relief to German citizens captured by U.S. forces in
China who were tried and convicted of war crimes by an American military commission headquartered
542 U.S. at 476
235
Id.
236
542 U.S. at 426 (2004).
237
542 U.S. at 430-1.
238
542 U.S. at 430.
239
53
in Nanking, and then incarcerated in occupied Germany. In distinguishing the facts in that case from
235
Rasul, the Court stated:
Petitioners here differ from the Eisentrager detainees in important respects: They are
not nationals of countries at war with the United States, and they deny that they have
engaged in or plotted acts of aggression against this country; they have never been
afforded access to any tribunal, much less charged with and convicted of wrongdoing;
and for more than two years they have been imprisoned in territory over which the
United States exercises exclusive jurisdiction and control.
236
This thus meant that habeas review was available to those at Guantnamo Bay and all those detained
there were entitled to challenge their detention.
3. Rumsfield v. Padilla
Rumsfield v. Padilla was the third of three Supreme Court decisions ruling an individuals
237
being held in detention by the United States and suspected terrorists must receive a hearing. In Padilla,
Jose Padilla was an American citizen detained in Chicago by the Bush Administration after he had
returned from Pakistan. He was then transported to New York and placed in federal custody under a
warrant issued by a grand jury investigating the 9-11 bombings. Padilla obtained a lawyer and sought
238
to contest his detention. While his motion was pending, the Bush Administration designated him an
enemy combatant and placed in military custody in South Carolina. He was so designated because
239
the government believed that he wished to set off a dirty bomb in the United States in cooperation or
542 U.S. at 431.
240
542 U.S. at 433.
241
Id.
242
542 U.S. at 432-33.
243
542 U.S. at 433.
244
542 U.S. at 434 (quoting 28 U.S.C. 2242).
245
Id.
246
54
on behest of al-Qaeda. The Bush Administration justified his detention based both on the presidents
power as commander in chief and the congressional AUMF of September 18, 2001. Padilla sought
240
habeas review in New York (Southern District), naming as respondents President Bush, Secretary
Rumsfeld, and Melanie A. Marr, Commander of the South Carolina facility. The government sought
241
dismissal of the petition, both claiming that only Marr was a proper respondent and that the New York
court lacked jurisdiction to hear the case.
242
The district court ruling that the president could detain him and that the court had jurisdiction
to hear the habeas petition.. The Court of Appeals reversed, holding both that the Secretary of
243
Defense was the appropriate respondent for habeas and that the President had no authority to detain
Padilla militarily.
244
The Supreme Court reversed, deciding only the jurisdictional issues in the case and not whether
the president has the authority to detain Padilla. Writing for the Court, Chief Justice Rehnquist
indicated that the federal habeas law was clear in stating that the appropriate respondent is the person
who has custody over [the petitioner]. This respondent or person must be the one who could actually
245
produce the detained individual before the court. The respondent is also the one who has direct
246
542 U.S. at 437-38.
247
542 U.S. at 441-442.
248
542 U.S. at 442 (quoting 28 U.S.C. 2241(a)).
249
Id.
250
542 U.S. at 451.
251
Padilla v. Hanft, 389 F.Supp.2d. 678 (D.S.C. 2005).
252
Padilla v Hanft, 423 F. 3d. 386 (4 Cir. 2005).
253 th
423 F. 3d at 391.
254
74 USLW 3275 (Oct 25, 2005)(NO. 05-533).
255
55
physical control over the person filing the habeas petition. Since only Marr had this type of
247
relationship to Padilla, only her and not Bush or Rumsfield was the proper habeas respondent.
248
Next, having determined that Marr was the proper respondent, Rehnquist then indicated that a
court may only grant habeas petitions within their respective jurisdictions. Jurisdiction for habeas
249
is also fixed to the place where one is physically confined. Thus, the proper place for Padilla to bring
250
his petition was in the district court of South Carolina were he was detained, naming Marr as the
respondent. As a result, the Second Circuit opinion was reversed.
251
After the Supreme Court decision in Padilla, he did refile habeas in South Carolina and the
district court ruled that he was detained illegally and that he should be criminally charged or released.
252
On appeal, the Fourth Circuit reversed. Relying upon the Supreme Courts opinion in Hamdi, the
253
Fourth Circuit ruled that the Congress had authorized the president to detain Padilla with its September
18, 2001 AUMF. Padilla then sought review of the Fourth Circuit decision, and in response, the
254 255
government charged Padilla, asked the Fourth Circuit to vacate their decision, and then sought to
Padilla v. Hanft, 432 F.3d 582 (4 Cir. 2005).
256 th
432 F.3d at 582.
257
Hanft v. Padilla, 126 S.Ct. 978 (2006).
258
126 S.Ct. 2749 (2006).
259
56
transfer him from a military to a civilian facility. The Fourth Circuit refused the request to transfer and
vacate, contending that all this was done simply to avoid Supreme Court review.
256
we believe that the transfer of Padilla and the withdrawal of our opinion at the
governments request while the Supreme Court is reviewing this courts decision of
September 9 would compound what is, in the absence of explanation, at least an
appearance that the government may be attempting to avoid consideration of our
decision by the Supreme Court, and also because we believe that this case presents an
issue of such especial national importance as to warrant final consideration by that
court, even if only by denial of further review, we deny both the motion and suggestion.
If the natural progression of this significant litigation to conclusion is to be pretermitted
at this late date under these circumstances, we believe that decision should be made not
by this court but, rather, by the Supreme Court of the United States.
257
Subsequently, the Supreme Court reversed, granting the transfer, while acknowledging that a petition
for a review of the Fourth Circuit habeas decision was still under review. Eventually, the Court
258
refused to grant certiorari in the matter, leaving Padilla in the hands of a civilian court to review the
charges against him.
4. Hamdan v. Rumsfeld
Of the four Supreme Court opinions thus far testing presidential power to conduct the war on
terrorism after 9-11, Hamdan v. Rumsfeld is the latest and most direct rejection of executive
259
authority to sidestep constitutional protections for individual liberties. In this case Salim Ahmed
Hamdan was a Yemeni national who was captured by American armed forces in Afghanistan in
126 S.Ct at 2759.
260
126 S.Ct at 2759.
261
Id.
262
126 S.Ct at 2759.
263
"Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,"
264
66 Fed.Reg. 57833 (November 13 Order).
126 S.Ct at 2760 (citing November 13 Order at 57834).
265
57
November, 2001. He was subsequently turned over to the military and in June, 2002 was transferred
260
to Guantanamo Bay for detention. He was held without charges for two years until the President finally
decided to try him for conspiracy before a military commission. Hamden sought habeas review to
261
challenge his detention and also mandamus to question his proposed trial. His arguments are based
262
on two claims: First the commission setup to try him was illegal and, second the procedures to be used
in the trial violated basic rules of military and international law. A district court had ruled in his
263
favor, it was reversed by the court of appeals, and upon certiorari to the Supreme Court, Justice Stevens
wrote a plurality opinion in favor of Hamden.
In arguing both in favor of his detention and the trial procedures, the government invoked
several arguments. First, the government contended that a November 13, 2001 presidential order
permitted it to detain and try Hamden in the manner at issue here. This November 13 Order allowed
264
the president to detain any noncitizen for whom the President determines there is reason to believe
that he or she (1) is or was a member of al Qaeda or (2) has engaged or participated in terrorist
activities aimed at or harmful to the United States, and to have them tried by a military commission
created by the Secretary of Defense. When Hamden requested a speedy trial under the Uniform Code
265
of Military Justice (UCMJ) he was informed that none of the provisions in applied to his detention,
126 S.Ct at 2760.
266
126 S.Ct at 2775.
267
Detainee Treatment Act of 2005, Pub.L. 109-148, 119 Stat. 2739.
268
126 S.Ct. at 2763-4.
269
DTA 1002-1004, 119 Stat. 2739-2740.
270
126 S.Ct at 2764.
271
126 S.Ct at 2763 (citing DTA 1005(h), at 2743-2744).
272
126 S.Ct at 2763.
273
58
pursuant to the November 13 Order. This Order is ultimately supported, for the government, in the
266
AUMF. The second argument the government uses to attack Hamdens assertions is to appeal to the
267
Detainee Treatment Act of 2005 (DTA) which it contends removed Court jurisdiction to hear this
268
case. The Court first addressed the DTA argument.
269
Subsection (e) of section 1005 of the DTA states that: Except as provided in section 1005 of
the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or
consider-- " '(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by
the Department of Defense at Guantanamo Bay, Cuba. On it face, subsection (e) appears to
270
preclude the Court from reviewing Hamdens habeas petition. However, Justices Stevens rejects the
use of constitutional claims and instead uses statutory tools to dismiss the governments position.
271
Specifically, he points out that while paragraphs two and three of this section of the DTA (which are
not directly at issue in this case and which address judicial review of other matters relating to detainees)
are governed by the language which make the act take effect immediately upon passage to claims
already pending, there is no language in the act that appears to make the DTA retroactive to claims
272
such as the one Hamden brought under paragraph one (which is at issue in this case). The
273
126 S.Ct at 2764.
274
126 S.Ct at 2764-5.
275
126 S.Ct at 2765-6.
276
126 S.Ct at 2772-3.
277
126 S.Ct at 2773.
278
126 S.Ct at 2774.
279
Id.
280
59
governments position is that this omission is not significant since the DTA withdrew all jurisdiction
from the court regarding the detainees, and therefore there is a presumption here that unless the judiciary
was given authority to hear these cases, Congress had taken it away. However, Stevens rejects this
274
in favor of another presumptionthe rule against retroactivityin certain cases, especially those
involving alteration of jurisdiction. The failure of Congress expressly to state that paragraph one had
275
retroactive effect while saying so for paragraphs two and three suggest a clear intent by Congress not
to make it apply to cases already in the process, such as Hamdens. Thus, the Court turned back the
276
DTA argument as a way to prevent it from hearing this case.
Turning to the November 13 Order, the Court notes that military commissions are not
mentioned in the Constitution, but instead are an artifact of military necessity and exigency. Yet
277
Stevens states that: Exigency alone, of course, will not justify the establishment and use of penal
tribunals not contemplated by Article I, 8 and Article III, 1 of the Constitution unless some other
part of that document authorizes a response to the felt need. The Court first raised and then
278
sidestepped whether the presidents power as commander-in-chief would provide authorization to create
these commissions. Instead it argued that Congress has authorized the creation of these commissions
279
through its war-making powers, specifically by enacting the UCMJ. In addition, even if the president
280
126 S.Ct. at 2774, fn. 23 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
281
637 (1952)).
126 S.Ct. at 2775.
282
Id.
283
126 S.Ct. at 2777.
284
126 S.Ct. at 2780-1.
285
60
has independent authority to create these commissions, the Court declared that: [H]e may not disregard
limitations that Congress has, in proper exercise of its own war powers, placed on his powers. The
281
governments position then is that either the DTA or the AUMF have expanded the presidents authority
to create commissions, thereby providing the support for his November 13, Order. The Court found
282
nothing in either that served to expand the presidents authority beyond that already listed in the
UCMJ.
283
Having rejected presidential claims of authority to create military tribunals with specified trial
procedures, the Court then turns to the charges the commissions will use to try Hamden and other
detainees at Guantanamo Bay. It notes that all parties in this case agree that there is a body of common
law that appears to govern procedures governing military commissions, and that includes some
284
allegation that the person facing trial has breached some law or rule against the conduct of war. After
285
a lengthy analysis of the events of and after 9-11 and Hamdens role in them, the Court concludes that
the
Government must make a substantial showing that the crime for which it seeks to try
a defendant by military commission is acknowledged to be an offense against the law
of war. That burden is far from satisfied here. The crime of "conspiracy" has rarely if
ever been tried as such in this country by any law-of-war military commission not
exercising some other form of jurisdiction, and does not appear in either the Geneva
126 S.Ct. at 2780-1.
286
126 S.Ct. at 2781-84. Specifically, the Court rejects the governments contention that Ex
287
parte Quirin, 317 U.S. 1 (1942) supports their argument that military commissions may try conspiracy
changes because the defendants in that case were charged with that offense. The Court in Hamden
responds to this argument by stating that saboteurs were being tried for other offenses in addition to
conspiracy and the Court never ruled on the conspiracy issue. 126 S.Ct.at 2782. According to Stevens:
If anything, Quirin supports Hamdan's argument that conspiracy is not a violation of the law of war.
Not only did the Court pointedly omit any discussion of the conspiracy charge, but its analysis of
Charge I placed special emphasis on the completion of an offense; it took seriously the saboteurs'
argument that there can be no violation of a law of warat least not one triable by military
commission--without the actual commission of or attempt to commit a "hostile and warlike act." Id. In
several places in Hamden Justice Stevens attacks the Quirin precedent as supporting the governments
arguments or uses it again them. See, e.g., 126 S.Ct. at 2773(citing Quirin as supporting the
proposition that "Congress and the President, like the courts, possess no power not derived from the
Constitution"). See also: LOUIS FISHER, PRESIDENTIAL WAR POWER, 205-8 (University Press of
Kansas, 2004) (discussing how Quirin is not precedent for Bushs military tribunals).
Id. at 2784.
288
126 S.Ct. at 2786-7.
289
126 S.Ct. at 2790, fn. 47.
290
126 S.Ct. at 2790-1, 2793.
291
61
Conventions or the Hague Conventions--the major treaties on the law of war.
286
The Court rejects examples cited by the government as instances where conspiracy was tried before
these type of tribunals, and it also points out that there are no treaties or international law that would
287
permit this either.
288
Finally, Stevens looks at the rules of evidence and trial procedures to be used in Hamdens case
to try him. Stevens notes that hearsay may be admitted, the defendant would be denied access to
examine this evidence, and that he could be convicted with a two-thirds verdict. All of these
289
procedural and evidentiary rules are both contrary to what is provided in the UCMJ and in
290
international covenants such as the Third Geneva Convention of 1949.
291
126 S.Ct. at 2795.
292
Id. at 2795.
293
126 S.Ct. at 2796.
294
62
As a last point, the Court also rejects contentions by the government that the Geneva Convention
does not apply to Hamden because that international agreement applies only to states and not to
individuals who are members of al Qaeda, which is not a government. Essentially this is the claim
292
that the government made in its Detainee Memorandum. Without directly rejecting this claim the Court
points out that some parts of these conventions, known as Common Article 3, apply to everyone,
including individuals such as Hamden, who are not attached to any government. This article
293
precludes Hamden from being tried by the special commissions the president has created in his
November 13 Order because Common Article 3, then, is applicable here and, as indicated above,
requires that Hamdan be tried by a "regularly constituted court affording all the judicial guarantees
which are recognized as indispensable by civilized peoples. Having found that the commissions
294
authorized by the November 13 Order lack these minimum guarantees, the Court also refuses to
recognize the procedures to be used to try Hamden to be satisfactory.
Overall, the Hamden opinion is to date the most forceful rejection of presidential authority to
conduct the war on terrorism. While it does not directly reject inherent presidential powers to act, it
suggests clear limits to it, both in terms of what AUMF permitted, as well as in terms of international
law. The opinion also suggested that like it or not, international law is binding on the United States, and
contrary to the assertions made in the four memoranda, the president does not get the last word in terms
in war and foreign policy matters.
63
5. Summary
As a result of the sagas of Hamdi, Rasul, Padilla, and Hamden, several conclusions can be
drawn. First, citizens or non-citizens detained on American soil are entitled to a habeas hearing to
contest their confinement. Eight Justices in three opinions in Hamdi agreed to this proposition, while
six Justices in two opinions (one including a five person majority) in Rasul agreed. In Hamden, five
Justices in two opinions agreed on this point. Only one Justice (Thomas in Hamdi) thus far have ruled
on the merits that the president has inherent authority to detain individuals, while five Justices (a four
person plurality plus Thomas) in Hamdi have held that the AUMF authorizes detention. Conversely,
four Justices in two opinions in Hamdi reject that AUMF permits the detention and five Justices in
Hamden drew clear limits to what AUMF and presidential power could do. Overall, the Court seems
to be shying away from the inherent presidential power claims raised by the Yoo and other three
Department of Justice Memoranda and are of mixed but skeptical opinion on the congressional
authorization claim.
Yet even with this congressional authorization, only Thomas seems prepared to reject judicial
review, with the rest of the Court prepared to argue that the AUMF does not abrogate the constitutional
protections individuals have. For now, the Court seems to be siding with protection of individual rights,
rejecting Bushs claims. The Court also seems to be unwilling to accept claims that the presidential has
unlimited foreign policy and war powers, that he does not get the final say in these matters, that
international law is binding, and the Congress and the judiciary still have a role to play after 9-11. For
now, the Constitution and federal law still applies and limits presidential power.
Finally, the Bush Administration has not been successful in other court proceedings related to
the war on terrorism. For example, a former professor Sami al-Arian was tried on 51 counts related to
Eric Lichtblau, Non Guilt Verdict in Florida Terror Trial are Setbacks for U.S., N.Y.
295
TIMES (December 7, 2005) at A1.
487 F.3d 160 (4 Cir. 2007).
296 th
487 F. 3d at 177-178, 184.
297
Id. at 190-195.
298
64
government claims that he and others were fronting for Palestinian terrorists. A jury acquitted on eight
counts and deadlocked on others. In addition, since Bush declared the war on terrorism, no principles
295
have been convicted yet. The sole conviction thus far was Zacarias Moussaoui, the so called twentieth
hijacker in 9-11 who pled guilty on April 22, 2005 to terrorist charges brought against him. However,
while acknowledging ties to al Qaeda, he denied any connection to 9-11, and it does not appear that he
was a principle or major player in any terrorist organization.
In addition, in Al-Marri v. Wright the Fourth Circuit Court of Appeals ruled that the Military
296
Commissions Act which denied habeas to enemy combatants did not apply to the detainee in question.
Moreover, and more importantly, the Court rejected claims by the executive department that the
president had inherent authority to order the seizure and indefinite detention of a civilian. In reaching
the merits of Al-Marris detention claim the Court both dismissed arguments that AUMF authorized the
detention, More importantly, the Fourth Circuit directly rejected the claims of inherent presidential
297
powers as commander-in-chief to detain a civilian. In the Courts words:
298
To sanction such presidential authority to order the military to seize and indefinitely
detain civilians, even if the President calls them enemy combatants, would have
disastrous consequences for the Constitution-and the country. For a court to uphold a
claim to such extraordinary power would do more than render lifeless the Suspension
Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth,
Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms
guaranteed by the Constitution. It is that power-were a court to recognize it-that could
lead all our laws to go unexecuted, and the government itself to go to pieces. We
refuse to recognize a claim to power that would so alter the constitutional foundations
487 F.3d at 195.
299
476 F.3d 981 (D.C. Cir. 2007, cert. granted 127 S.Ct. 3078 (2007).
300
476 F.3d 981 (D.C. Cir. 2007, cert. granted 127 S.Ct. 3078 (2007).
301
Jess Bravin, Terror War Legal Edifice Teeters, WALL STREET JOURNAL (June 13, 2007)
302
at A 4.
438 F. Supp. 2d 754 (D. Mich. 2006).
303
2007 WL 1952370.
304
65
of our Republic.
299
However, while in Al-Marri the Fourth Circuit refused to endorse the denial of habeas, in both
Boumediene v. Bush and Al Odah v. United States the Court of Appeals for the District of Columbia
300
upheld congressional authority under the Military Commissions Act of 2006 to deny jurisdiction to hear
habeas petitions for Guantanamo Bay prisoners. Here, the Court did not rule on claims of inherent
301
presidential power or authority under AUMF, but instead ruled that the Military Commissions Act of
2006 did not violation the Suspensions Clause (Article I, Section 9, Clause 2) of the Constitution. In
June,2007, the Supreme Court voted to grant cert. in the case. Additionally, in June, 2007, a military
judge dismissed charges against Hamden and the only other Guantanamo prisoner facing trial.
302
Finally, in American Civil Liberties Union v. National Security Agency a Michigan district
303
court struck down as unconstitutional the presidents warrant less electronic surveillance program,
finding that it violated both the First and Fourth Amendments. More importantly, this case rejected the
governments claims that the president has inherent authority to authority this type of surveillance.
However, a Sixth Circuit decision overturned the decision, ruling that the plaintiffs lacked standing
because they had failed to demonstrate an injury.
304
BBC News, London rocked by terror attacks (July 7, 2005) (located on the Internet at <
305
http://news.bbc.co.uk/1/hi/uk/4659093.stm > )(Site last visited on January 31, 2006).
Duffy at 356.
306
66
Overall, up to this point while lower courts have rejected the Unitary Executive theory, the
Supreme Court has yet to rule on its merits, opting instead to find other reasons to limit presidential
authority. Whether that will continue to be the trend after the Court rules in the Boumediene and Al
Odah cases is open for debate, especially light of the ascension of Justices Roberts and Alito to it.
IV. Europe and the European Union
Assessment of the war on terrorism and democracy does not end at the American borders. It also
encompasses Great Britain, Spain, Germany and the entire European Union. Yet they way each
responded varied significantly different from that in the United States.
A. Tony Blair and Great Britain
After the terrorist attacks of 9-11 in the United States, Prime Minister Tony Blair appeared to
be Bushs biggest ally. He supported the war on terrorism by offering troops to aid the United States
in Afghanistan and he was along side of Bush in urging the ouster of Saddam Hussein from Iraq. He
(his representatives) voted consistently in the United Nations for the enforcement of resolutions to
destroy weapons of mass destruction in Iraq, and he provided significant military aid to support Bushs
war on terrorism.
One reward for his support for these efforts were a series of terrorist bombings of the London
underground on July 7, 2005 that were linked to al Qaeda. Perhaps in response to the attack, Blairs
305
government proposed changing the lawthe Anti-Terrorism, Crime, and Security Act that then
306
BBC News, Q & A: Blairs terror bill defeat (November 9, 2005) (located on the Internet
307
at < http://news.bbc.co.uk/1/hi/uk_politics/4421726.stm >) (site last visited on January 31, 2006).
Id.
308
[2005] UKHL 71.
309
Id. at paragraph 11.
310
2006 WL 1783247, [2006] EWHC 1623 (Admin).
311
Prevention of Terrorism Act 2005, section 3(10).
312
67
allowed suspected terrorists to be detained without charges for 14 days, to 90 days. His bill also would
have made it illegal for some types of glorification or incitement or advocacy of terrorist acts.
307
Contrary to what happened in the United States when Congress quickly passed the Patriot Act, Blair
lost. His own Labor government refused to support these measures and instead were only willing to go
along with a detainment without charges to 28 days!
308
In addition, as in the United States, the British courts also responded to the war on terrorism by
rebuking torture and other deprivations of individual rights. In FC and Others v. Secretary of State
for the Home Department the House of Lords ruled that the common law bared the use of evidence
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obtained by torture. The Lords saw this rule not as evidentiary but constitutional, contending that
from the earliest days the common law of England sets it face firmly against the use of torture.
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While this decision seemed to place some limits on how suspected terrorists would be treated, in
Secretary of State for the Home Department v. JJ, a British High Court struck down a government
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tactic used against terrorists, house arrests without trials. At issue was a provision of the Prevention of
Terrorism Act 2005 which permitted the house arrest without trial of individuals suspected of being
terrorists. Justice Jeremy Sullivan who presided over this case, ruled that this provision of the Act
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violated Article 5(1) of the European Convention on Human Rights which provides that "Everyone has
Secretary of State for the Home Department v. JJ at para. 11.
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[2005] 2 WLR 87.
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UK ST 2001 c 24 Pt 4 s 23.
315
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the right to liberty and security of person. No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law ..."
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In A v. Secretary of State for the Home Department the House of Lords held that the
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indefinite detention of aliens under section 23 of the Anti-terrorism, Crime and Security Act of
2001 a detention policy similar to the one George Bush ordered for individuals at Guantanamo
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Baywas in violation of the European Convention on Human Rights and the Human Rights Act.
However, in the case of all of the policies thus far before the House of Lords, none of them had been
presented by the government under an argument similar to the Unitary Executive theory as in the United
States. In part this is because of the absence of a separations of powers style government in England.
In addition, critical to the reasoning, at least in the case of A v. Secretary of State for the Home
Department, was international law (Convention on Human Rights) in binding the government. Finally,
unlike the United States Supreme Court which thus far has been willing to directly confront claims of
inherent presidential power, the House of Lords has surprisingly dismissed any parliamentary
supremacy claims, finding instead that national or international commitments to human rights bar
torture or indefinite detention.
Overall, as in the United States, the British judiciary seems unwilling in some case to let the
specter of terrorism equate with an unlimited governmental authority at the expense of individual rights.
B. Spain
On March 11, 2004, merely days before national parliamentary elections, terrorists bombed
BBC News, Scores die in Madrid bomb carnage (March 11, 2004) (located on the Internet
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at < http://news.bbc.co.uk/2/hi/europe/3500452.stm > ) (site last visited on January 31, 2006).
BBC News, Spain threatens Iraq troop pull-out (March 15, 2004) (located on the Internet
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at < http://news.bbc.co.uk/2/hi/europe/3512144.stm >) (Site last visited on January 31, 2006).
BBC News, Aznar scorns Madrid bomb lies ( November 29, 2004) (located on the
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Internet at < http://news.bbc.co.uk/2/hi/europe/4050701.stm >) (Site last visited on January 31, 2006).
Duffy at 377.
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BGH, Strafberteitiger, StV 4/2004.
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Madrid train stations, killing nearly 200 individuals. Originally the Spanish President Jos Aznar
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blamed the attacks on Basque Separatists, but soon it was learned that the attacks were also linked to
al Qaeda. Aznar supported Bushs war on terrorism, voting to support the invasion of Iraq at the United
Nations and deploying troops in assistance of that effort. His stance was unpopular in Spain, and
Socialist presidential candidate Jose Luis Rodriguez Zapatero pledged to withdraw the troops if
elected. It was this opposition to the troop deployment, and belief that Aznar lied about who was
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responsible for the Madrid bombings that led to his defeat and the election of a leftist government.
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As a result, Zapatero and Spain have made no changes in detention or criminal laws to respond to the
war on terrorism.
C. Germany
The only trial thus far that had resulted in the conviction of a terrorist potentially linked to al
Qaeda and perhaps 9-11 events occurred in Germany. However, a German Court of Appeals
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overturned that conviction, on fair trial grounds. The basis of the ruling was that the United States
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Duffy at 377.
321
Dana Priest, CIA Holds Terror Suspects in Secret Prisons, WASHINGTON POST (November
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2, 2005) at A1.
Craig Whitlock, Europe Wants Answers on CIA Camps, WASH. POST (November 4, 2005)
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at A1(noting European criticism that the CIA torture camps are illegal and may violate the European
Convention on Human Rights).
Lisbeth Kirk, European Courts May Challenge US Terror Renditions, EUObserver
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(November 14, 2005) (<http://euobserver.com/9/20314??print=1>) (site last visited on January 22,
2006).
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had failed to turn over to the defense exculpatory evidence.
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D. European Union
Finally, two last events affecting the EU nations in general have arisen as a result of the war on
terror that test their commitment to democracy and Americas efficacy to defeat al Qaeda. First,
allegations surfaced in 2005 that the CIA was possibly operating torture camps in several EU nations,
perhaps including Poland or other former East Block nations. Such camps, if they exist, would
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certainly violate the ECHR. Second, EU members, concerned about allegations of torture, and also
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about the United States use of the death penalty, increasingly have become more concerned about
extraditing suspected terrorists to America.
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The combined result of the stories about torture, the death penalty, and even the failure on the
United States to cooperate on the sharing of (exculpatory) evidence may suggest a toughening of a
resolve of EU nations to fight terrorism without sacrificing democracy and individual rights, while at
the same time Americas approach may hurt both efforts to secure international cooperation to defeat
terrorism and uphold democracy.
See also: EMANUEL GROSS, THE STRUGGLE OF DEMOCRACY AGAINST TERRORISM: LESSONS
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FROM THE UNITED STATES, THE UNITED KINGDOM, AND ISRAEL, 258 (Charlottesville, VA: University
of Virginia Pres, 2006) (concluding that: When the state itself undermines the foundations of its own
democratic regime in the name of its war against terror, what just cause can it assert in pursuance of its
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V. Conclusion
The event of 9/11 and subsequent Western responses to terrorism have challenged basic
commitments to democracy, constitutionalism, and liberalism in Europe and the United States. Across
the states in these areas one such challenge emerged with the decision to collapse law enforcement into
foreign policy and confront terrorism by military and not criminal law means. This merger of two
traditionally distinct policy areas has come at the sacrifice of individual rights, at least in the United
States, with little to show for it. Several years out, no majors or terrorist principals have been
convicted, and the mythology of presidential power that Bush has constructed to justify his actions has
met with limited judicial support in the United States. In addition, when compared to the responses of
other EU nations, his actions have led to a reversal of a conviction in Germany and assertions that the
United States is in violation of international law. In England and Spain, two other victims of terrorist
attacks, they have generally not sacrificed rights to security, with the House of Lords (sitting as a court)
and Parliament rejecting torture and extended detention policies along the lines advocated by the Bush
Administration.
Bushs war on terrorism has turned out to be a war on democracy, both in terms of the attack
on human rights, and also in assertions of extra-constitutional executive authority. If we judge the
efficacy of this war by Bushs own wordsThe object of terrorism is to try to force us to change our
way of life, is to force us to retreat, is to force us to be what were notthen the terrorists may win
unless both Congress and the courts reject his theory of the Unitary Executive and the approach to
national security he has articulated.
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fight against those who seek the very same result?).
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