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September|October 2005
Furious George By Neil Kinkopf
The Missing Link By Michael Greenberger
Monkey Wrench By Cass R. Sunstein
Lessons From the Swiss Cheese Map By Shari Motro
Disarming and Dangerous By Chris Suellentrop
King James I, of Michigan By Geoffrey Gagnon

Monkey Wrench

The Supreme Court has always thwarted presidents who demand unlimited legal power in wartime.

By Cass R. Sunstein

A NEW LEGAL POSITION HAS ARISEN IN THE AFTERMATH of September 11. This position is supported by people who understand the Constitution to say that when national security is genuinely threatened, the president must be permitted to do whatever needs to be done to protect the United States. I call this view national security fundamentalism. Many people want the federal courts to accept it without qualification.

This view underlay the 2002 memorandum on the legality of coerced interrogation by the Justice Department's Office of Legal Counsel, where a great emphasis was placed on the president's inherent authority as commander in chief. National security fundamentalism has also played a key part in a dissenting Supreme Court opinion by Justice Clarence Thomas, when he asserted that the Constitution gives the president broad authority to protect the nation. In his view, the Constitution accords to the president the "primary responsibility . . . to protect the national security and to conduct the Nation's foreign relations." But the main appearance of national security fundamentalism has been in the lower federal courts.

One of the most fundamentalist lower court decisions is Al Odah v. United States, decided by the United States Court of Appeals for the District of Columbia before being reversed by the Supreme Court. In its exceedingly ambitious ruling, the lower court held that non-Americans captured outside the United States have no rights under the Due Process Clause of the Constitution. The court ruled that the detainees were legally analogous to German prisoners captured on the battlefield in World War II. While acknowledging that Guantánamo Bay, the place of the imprisoned, is controlled by the United States military, the court insisted that this fact was irrelevant because Cuba has sovereignty over the general area. Broadly reading Supreme Court precedents, the Court of Appeals ruled in favor of executive discretion.

A concurring opinion by Judge Raymond Randolph went further, addressing several issues that it was not necessary for him to discuss. Consider his opening sentence: "I write separately to add two other grounds for rejecting the detainee's non-habeas claims." The motivation for his separate opinion seemed to be captured by his final sentence: "The level of threat a detainee poses to the United States' interests, the amount of intelligence a detainee might be able to provide, the conditions under which the detainee may be willing to cooperate, the disruption visits from family members and lawyers might cause—these types of judgments have traditionally been left to the exclusive discretion of the Executive Branch, and there they should remain."

Other rulings in the lower courts also endorse national security fundamentalism. In Center for National Security Studies v. Department of Justice, a divided D.C. Circuit permitted an extraordinary level of secrecy from the executive branch. In that case, public interest groups invoked the First Amendment, the Freedom of Information Act, and the common law to require the government to release information about prisoners who had been detained in the aftermath of the September 11 attacks. In ruling against them, the court commented on the distinctive nature of the current threat: "America faces an enemy just as real as its former cold war foes, with capabilities beyond the capacity of the judiciary to explore." It left no doubt about the motivation for its action: "We are in accord with several federal courts that have wisely respected the executive's judgment in prosecuting the national response to terrorism."

What is most noteworthy about the decision was not the outcome, but the court's remarkably broad pronouncements about the need for judges to defer to the president and his inherent power.

IN THE ABSTRACT, NATIONAL SECURITY FUNDAMENTALISM has considerable appeal. The president is far better placed than Congress to act quickly and decisively to protect the citizenry. He is also more likely to have relevant information about what must be done and when to do it. Justice Thomas has correctly emphasized that Alexander Hamilton defended the creation of a strong executive office as a means of ensuring energy, coordination, and dispatch in the presidency. These qualities are crucial in time of war. The courts, by contrast, lack good tools for assessing the president's claims of military necessity. Because the president is commander in chief of the armed forces, Congress cannot override the president's judgments about how to carry out a lawful war.

At least equally important, judicial overreaching in wartime may turn out to be disastrous rather than merely harmful. There is every reason for courts to avoid a decision that leads to freedom for terrorists or to disclosure of information that helps those who want to kill Americans.

Still, the Constitution is best read to forbid national security fundamentalism. Let us begin with the text of the document.

No one doubts that the president has considerable power in the domain of national security. Under Article II, he is explicitly authorized to be "Commander in Chief of the Army and Navy of the United States." He is allowed "to make Treaties," when two-thirds of the senators concur. He is authorized to "appoint Ambassadors" and "other public Ministers and Consuls." But none of this supports the contention offered by Thomas, among others, that the president has "primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation's foreign relations." Nor does anything in the document support the suggestion of the United States Court of Appeals for the Fourth Circuit that under Article II "the president is given the war power." That view is a tendentious reading of the legal materials, as a quick glance at Article I reveals.

Perhaps most notably, Congress, not the president, has the power "to declare War." The Constitution also grants Congress, not the president, the power "to raise and support Armies." In a formulation that bears on the president's supposedly "inherent" power to torture, and that much complicates any claims about the broad power of the commander in chief, the founding document permits Congress to "make Rules for the Government and Regulation of the land and naval Forces." It is Congress that is authorized to raise funds to "provide for the common Defense and general Welfare of the United States."

In this light, the Constitution does not vest in the president anything like a general authority "to protect the national security." National security fundamentalism neglects the most natural reading of the document, which is that protection of national security is divided between Congress and the president—and that if either has the dominant role, it is Congress.

For many people, this should be the end of the matter. It is both unfortunate and noteworthy that recent judicial endorsements of what I'm calling national security fundamentalism, by Thomas and others, have paid little attention to the constitutional text.

THE SECOND PROBLEM WITH NATIONAL SECURITY FUNDAMENTALISM is that it understates the risks of unlimited presidential authority. The executive branch sees protection of the nation's security as a principal task—in part because political retribution will fall swiftly on any president who fails in that task. When the nation is under threat, the executive naturally takes steps to reduce the risks. So far so good. But recall the chilling observation of Francis Biddle, when he was Franklin Roosevelt's attorney general: "The Constitution has never greatly bothered any wartime President." The question is whether internal dynamics or external checks will ensure that the steps a president takes are reasonable rather than excessive. National security fundamentalism is far too optimistic on that count.

Dynamics within the executive branch present a serious problem, because that branch is designed to be neither diverse nor deliberative. It is run by a single person, who is constitutionally entitled to populate his branch with like-minded people. But modern social science has demonstrated that, after deliberation, like-minded people usually end up thinking a more extreme version of what they thought before they started to talk. This process is known as "group polarization." Suppose that people within an executive agency believe that Iraq has weapons of mass destruction. That belief is likely to be heightened after members have started to talk among themselves.

In addition, if the burden of a restriction is widely shared, as in a general increase in security procedures at airports, most people won't accept it unless convinced there is good reason for it. But if the restriction is imposed on a small, identifiable group—say, Japanese-Americans during World War II, or non-citizens who are visiting from the Middle East—the political check is weakened. If other people face the relevant burdens, then the mere fact of "risk," and the mere presence of fear, will seem to be sufficient justification. In these circumstances, political checks may provide an inadequate safeguard against unjustified presidential intrusions on liberty.

If national security fundamentalism doesn't offer a sensible approach to individual rights in wartime, what does? It turns out that the most significant decisions of the Supreme Court show a consistent approach to national security and individual rights, one that I'll call minimalism.

The minimalist approach is built on three principles. First, Congress should be required to authorize any interference with interests and rights that have a plausible claim to constitutional protection, such as the right to speak freely and to receive a hearing before detention. Second, any deprivation of an individual's liberty should be preceded by procedures that meet at least a minimal standard of fairness. Third, judicial decisions should be narrow. These three principles do a remarkably good job of explaining the practices of the American judiciary in wartime.

To understand this approach, the best place to begin is the 1958 case of Kent v. Dulles decided in the midst of the cold war and just a few years after the end of the Korean War. In that case, the State Department denied a passport to the artist and writer Rockwell Kent, a member of the Communist Party, who sought to attend a meeting of the World Council of Peace in Finland. Kent sued the secretary of state, John Foster Dulles, arguing that the denial of his passport was unconstitutional.

The Supreme Court could have decided the case on any number of grounds. It could have said that Kent's First Amendment rights had been violated—that it was unconstitutional to deny someone a passport because of his political convictions. It could have said that the decision of the secretary of state violated Kent's right to travel—that the Due Process Clause includes a right to leave the country, and the government needs particularly strong grounds for interfering with that right. Or it could have ruled that the denial of the passport was lawful—authorized by the language of the relevant statute and, as authorized, within constitutional bounds.

Instead the court held that the statute that gave the secretary of state the authority to grant passports did not allow denial of a passport on the ground that the applicant was a Communist. Writing for the majority, Justice William O. Douglas began his analysis with a bow in the direction of constitutional requirements. The "right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment." The question of statutory authority would be approached in this light. While the statute was phrased in broad terms, the secretary had "long exercised" his power "quite narrowly."

Douglas left no doubt that the court's decision was constitutionally inspired. He noted that the case involved "an exercise by an American citizen of an activity included in constitutional protection." For that reason, the court would "not readily infer that Congress gave the Secretary of State unbridled discretion." The right to leave the country was grounded in the Constitution, and if it is "to be regulated, it must be pursuant to the law-making functions of the Congress."

The court's requirement of clear congressional permission was minimalist in the sense that it left undecided the larger questions about the meaning of the Constitution. The underlying idea—that Congress must speak unambiguously if it wants to compromise liberty—is known as a "clear statement" principle, and Congress is the body from which a clear statement is required.

Kent v. Dulles didn't mention the Commander in Chief Clause, beloved of national security fundamentalists, but the Court's crucial citation involved an explicit reference to a case squarely involving the commander in chief power: Youngstown Sheet & Tube Company v. Sawyer also known as the steel seizure case.

In 1951, in response to a threatened strike that could jeopardize the nation's steel supply, President Harry S. Truman directed his secretary of commerce, Charles Sawyer, to take possession of the majority of steel mills in the United States. According to Truman, the strike put national defense at risk, because steel was an indispensable component in nearly all weapons and war materials. He defended his action as justified by his power as commander in chief of the armed forces. But the Supreme Court firmly rejected the argument. It emphasized that there is "no statute that expressly authorizes the President to take possession of the property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied." Lawmaking power, it stressed, is vested in Congress, not the president.

In his famous concurring opinion, Justice Robert Jackson explored in some detail the central importance of a grant of authority from Congress. Jackson offered a three-part division of presidential authority, suggesting that the president's authority is at its maximum when acting under an authorization from Congress, in the middle when Congress has been silent, and lowest when the president's exercise of power is "incompatible with the expressed or implied will of Congress." Less famously, Jackson offered a narrow interpretation of the Commander in Chief Clause that showed great skepticism about the idea of "inherent" presidential power. The "loose and irresponsible use" of words like inherent, implied, incidental, war, plenary, and emergency, he wrote, amounted to an effort to "amend" the Constitution.

JACKSON'S THREE-PART FRAMEWORK HELPS TO ORGANIZE a large number of Supreme Court decisions involving civil liberty and war, many of them written before the steel seizure case. Time and again, the court has emphasized the importance of congressional authorization for presidential action and refused to rule that the president has the power to act on his own.

Consider, for example, Ex Parte Endo. The case involved a petition for a writ of habeas corpus sought on behalf of Mitsuye Endo, a loyal American citizen who had been placed in a relocation center. In ruling that Endo had to be released, the court relied on the absence of statutory authorization for her detention. Even in the midst of war, the president needed clear authorization from Congress for any such detention.

Duncan v. Kahanamoku, involving the imposition of martial law in Hawaii during World War II, was decided in the same spirit, with the court ruling that military tribunals did not have legal authority to try civilians imprisoned there. Although the rules controlling the governance of Hawaii did allow the governor of the territory to declare martial law, the court refused to agree that he could "close all the courts and supplant them with military tribunals"—even with presidential approval. "Courts and their procedural safeguards are indispensable to our system of government," it argued, and it would not construe an ambiguous statute to permit the displacement of ordinary courts with military tribunals.

The oldest example of a minimalist approach to civil liberties comes from the Civil War period. President Abraham Lincoln suspended the writ of habeas corpus, referring to the clause in the Constitution that says, "The Privilege of Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The Suspension Clause is phrased in the passive voice; it does not say who may suspend the great writ. Chief Justice Roger Taney ruled that the president could not suspend the writ on his own but instead needed congressional authorization. Taney pointed out that the Suspension Clause is found in Article I, which specifies the powers of Congress, rather than Article II, which deals with presidential authority. In addition, Taney's conclusion could be supported by another point: Suspension of habeas corpus is an exceptionally grave act that should follow a judgment by a body that is both deliberative and diverse.

THE REQUIREMENT OF CONGRESSIONAL AUTHORIZATION for intrusions on liberty unifies a variety of judicial decisions. But I have not discussed the Supreme Court's most notorious decisions in this domain, Hirabayashi v. United States and Korematsu v. United States. In Hirabayashi, the court upheld a curfew order imposed by a military commander on an American citizen of Japanese ancestry. In Korematsu, the court upheld a military order excluding Fred Korematsu, an American citizen of Japanese descent, from San Francisco, leading to his internment in Utah.

It is tempting, and probably right, to see the court's decisions as cowardly and deplorable capitulations to intrusions on liberty that had no justification in national security concerns. But the court's overall approach has an unmistakable minimalist feature, requiring executive action to be authorized by Congress.

Hirabayashi was decided largely on separation-of-powers grounds. The court's initial claim was that "so far as it lawfully could, Congress authorized and implemented such curfew orders." Unilateral presidential action was not involved. In Korematsu, the court similarly emphasized that the exclusion order was based on a recent law passed by Congress, making it a crime for any Japanese-American to remain in "any military area" designated as such by a competent official. The exclusion order, issued by Lt. Gen. J. L. Dewitt, was specifically authorized by an executive order by the president, who was in turn acting under congressional authorization. The court pointedly noted that it was dealing not with the executive alone, but with "the war power of Congress and the Executive."

In these two cases, together with Ex Parte Endo, we can see that the court was rejecting fundamentalism in favor of a distinctive form of minimalism. In none of these cases did the court issue a broad ruling in favor of presidential authority. When the executive acted without congressional empowerment, it lost. Its actions survived legal challenge only when Congress had specifically permitted them.

IN THE SUPREME COURT'S 2003 DECISIONS involving terrorism, minimalist principles played a central role. They were endorsed most explicitly by Justice David Souter in his concurring opinion, joined by Justice Ruth Bader Ginsburg, in the Hamdi case. Yaser Esam Hamdi, an American citizen born in Louisiana, was seized by members of the Northern Alliance in Afghanistan and handed over to American forces. From Afghanistan he was transferred to Guantánamo Bay, then to a naval brig in Virginia, and then to a brig in South Carolina. According to the United States government, Hamdi qualified as an enemy combatant because he had become affiliated with a Taliban military unit and could be held indefinitely without formal proceedings. Hamdi said he had been unfairly charged.

In this case and others, the president made the broad assertion that, as commander in chief, he had the inherent power to order military authorities to seize suspected terrorists without any judicial approval and to hold them indefinitely, incommunicado, with no access to a lawyer, a court, or their families. The president claimed this power even with respect to American citizens—a straightforward demand that the court adopt national security fundamentalism.

Souter's central argument was that Congress had not authorized Hamdi's detention and that the president should not be given that power by the court. Souter wrote, "For reasons of inescapable human nature, the branch of Government asked to counter a serious threat is not the branch on which to rest the Nation's entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory." Not having found any clearly expressed congressional resolution, Souter concluded that the detention was unlawful.

The Hamdi plurality's own approach contains an endorsement of Souter's central idea. The plurality rejected the government's argument that, because Congress had authorized the use of force in response to the September 11 attacks, the executive was permitted to detain Hamdi indefinitely. In rejecting that argument, the plurality allowed detention only during active prosecution of the war in Afghanistan. The court noted that a longstanding war on terror might mean that "Hamdi's detention could last for the rest of his life." Congress had said nothing to allow the president such latitude.

Many of the cases explored here are concerned with more than limiting the executive's power as compared with Congress's. They are also focused on procedural safeguards, drawing upon Justice Felix Frankfurter's wise observation that "The history of liberty has largely been the history of the observance of procedural safeguards." The clearest statement along these lines is found in Duncan v. Kahanamoku, in which the court narrowly construed the law governing Hawaii so as to ensure that civilians would receive access to ordinary courts. The same concern animates Chief Justice Taney's rejection of President Lincoln's claim of authority to suspend the writ of habeas corpus.

In the Hamdi case, the plurality said that an enemy combatant must be supplied with "notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." According to the plurality, the right of an American citizen to a fair hearing before he may be deprived of freedom is one of the "essential liberties that remain vibrant even in times of security concerns." Minimalists emphasize that right above all others.

In the key cases, the court has also restrained itself. In war, as always, minimalist judges endorse narrow, unambitious rulings in order to promote two goals. The first is to avoid excessive intrusions into the executive domain, and minimalist rulings help to ensure against judicial overreaching. The second is to avoid setting precedents that, in retrospect, will seem to give excessive authority to the president.

Frankfurter's concurring opinion in the steel seizure case offers the most elaborate discussion of the underlying point. He emphasized that when national security is at risk, "rigorous adherence to the narrow scope of the judicial function" is especially important in the face of the national "eagerness to settle—preferably forever—a specific problem on the basis of the broadest possible constitutional pronouncement." In his view, the court's duty "lies in the opposite direction," through judgments that make it unnecessary to consider "delicate problems of power under the Constitution." The Supreme Court has an obligation "to avoid putting fetters upon the future by needless pronouncements today."

The same tendency toward minimalist rulings has been on fine display in the court's encounters with the war on terrorism. In Rasul v. Bush, the court was asked to say whether federal courts have jurisdiction to consider the detentions of foreign nationals captured and incarcerated at Guantánamo Bay. The court chose to restrict itself to two exceedingly narrow questions. It held only that the federal habeas statute granted jurisdiction to federal courts to hear challenges by foreign nationals to their detentions, and that the alien tort statute did not bar federal jurisdiction. The court said almost nothing else.

To be sure, minimalist decisions will not always prevent unjustified intrusions into the domain of liberty. But such decisions have a major advantage: They carve out a role well suited to the institutional strengths and weaknesses of the federal judiciary, making the minimalist approach far preferable to national security fundamentalism.

Cass R. Sunstein is Karl N. Llewellyn Distinguished Service Professor at the University of Chicago and the author of the forthcoming Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, from which this article was adapted.

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