The War on Terror and the Imperious Presidency

Watch your thoughts; they become words.
Watch your words; they become actions.
Watch your actions; they become habits.
Watch your habits; they become character.
Watch your character; it becomes your destiny.


Dean Erwin Chemerinsky, founding Dean of the law school at the University of California, Irvine, includes a chapter, “The Imperious Presidency,” in his 2010 book, The Conservative Assault on the Constitution (2010).  There he sets forth the impact on America’s constitutional government of the Bush administration’s approach to fighting the war on terror--an approach derived from the strongly-held views, especially of Dick Cheney and Donald Rumsfeld,  in favor of an almost limitless power in the executive branch.  (p. 77)  Rumsfeld and Cheney both went back to the Nixon administration, and were Gerald Ford’s White House chief of staff and deputy chief.  (Id.)  And Cheney, as a member of Congress, was the primary author of an opinion dissenting from the report issued by the congressional Iran-Contra Committee, setting forth long-established limits on the President’s power over appropriations funded by Congress. (pp. 78-80)

Both of these officials played critical roles in devising a strategy for fighting the war on terror that quite clearly ran afoul of both well-established principles of constitutional law and strong obligations of the nation under equally well-established principles of international law.   In the course of several years, important spokespersons for the administration managed to contend that:  (1) the president could hold alleged terrorists as “enemy combatants” for indefinite, and potentially never-ending, lengths of time without providing them any hearings to determine whether they were combatants of any kind;  (2) the executive branch could quite appropriately choose not to prosecute alleged terrorists for crimes they had allegedly committed and choose instead to treat such “criminals” as enemy combatants in the war on terror;  (3) any law or treaty that prohibits the use of torture—or “Cruel, Inhuman and Degrading Treatment” —in interrogating these combatants, is an “unconstitutional infringement on executive powers.”  (p. 85).  Moreover, the President’s power as the commander in chief, and as the head of American foreign Dpolicy, empowered him to rely on “extraordinary rendition” to deliver alleged terrorists (and enemy combatants) to foreign governments, despite claims (and alleged administration awareness) that the foreign government would torture such suspects; (4)  that it could hold, or detain, individuals seized far away from any battlefield without alleging that they acted as terrorists, under a federal statute authorizing the detention of a person as a “material witness”—despite a federal statute that expressly limits the witness detention right to cases where cases where testimony is needed in a criminal case and detention is the only way to ensure its availability; (5) the administration may intercept electronic communications between U.S. citizens and others in foreign countries, despite governing federal statutory law and the Fourth Amendment; (6)  the administration may justifiably conduct the war on terror in an atmosphere of secrecy that includes refusing to reveal the numbers of people “detained,” either as enemy combatants or as an alleged “material witness.”  (p. 95)  Thus the administration insisted for a lengthy period on conducting deportation proceedings in secrecy, even with present parties sworn to secrecy; and it insisted that there was no need “to show in a particular case the need for secrecy.”  (p. 96)

Dean Chemerinsky himself played a role in the resulting litigation over the conduct of the war on terror.  His book reports, among other things, that for the act of representing Guantanamo Bay detainees, he received an avalanche of hate mail.  (Even those who have committed murder in this country are entitled to be represented by legal counsel—so even though this result is perhaps not too surprising, it is still disappointing and frightening.)  The detainees at Guantanamo have frequently been held for years and years.  Chemerinsky observes that spokespersons consistently asserted the unilateral, and basically uncheckable, power of the executive to act in the war on terror.  Bush spokespersons seemed unaware that, as Chermerinsky notes, “At the risk of saying the obvious, checking executive power was a central goal of the American Constitution.”  (p. 80)  To the framers, he observes, “executive power was the authority most to be feared,” and with their experience with the tyranny of the English king, they “viewed the principle of separation of powers as the central guarantee of a just government.”  (Id.)  It is clear, he claims, that:  “The framers of the Constitution were deeply concerned that an unchecked executive would lead to abuses of power.”  (p. 82)  So he points out that the Bush administration approach “ignored the basic framework of the Constitution that two branches of government should be involved in all major government actions.”  (p. 81)  After describing in more depth the basic outline of federal government powers, he asserts that the “Bush administration claim of inherent, uncheckable executive power cannot and should not be reconciled with this framework.”  (Id.)

The first “break” between the administration and the courts, came in the case concerning Jose Padilla.  Padilla was the American apprehended in the Chicago airport trying to detonate a “dirty bomb.”  He was being held in a military prison in South Carolina, after initially being taken to New York.  Legal counsel brought a petition for his release in New York.  The government contended that Padilla was an “enemy combatant” in the war on terror, and there was hence no need for the government to prosecute him criminally to justify detaining him indefinitely.  Although the Supreme Court eventually held that Padilla needed to file his action in South Carolina, and that the New York court lacked jurisdiction, Chemerinsky observes that not only had the Second Circuit Court of Appeals ruled that “the government did not have the authority to hold an American citizen apprehended in the United States as an enemy combatant” (p. 89), but even the Supreme Court, despite its jurisdictional ruling, stated that “it is illegal to hold him as an enemy combatant.”  (p. 90)  The consequence of these developments was that the federal government chose to indict Padilla—so the issue of the authority to detain a citizen as an enemy combatant was not really ever decided.

Even so, the Supreme Court eventually held that the nation could not ignore our obligations under the Geneva Conventions to hold hearings to determine if detainees are truly enemy combatants.  (See pp. 89-92)  In the Hamdi case, Yasar Hamdi, another American citizen, was apprehended in Afghanistan and brought to Guantanamo Bay.  He was held as an enemy combatant, but was never charged with any crime.  The administration again contended that it could hold Hamdi indefinitely without any due process at all.  To the contrary, as Chemerinsky brought out, the Court held that Hamdi had at least a right to represented by counsel and to respond to the government’s claim that he was indeed an enemy combatant.   It is too easy to ignore the significance of the United States choosing to simply bypass its international duties.  In Vietnam, although the Viet Cong violated rules of warfare, the U.S. gave Geneva Convention protections to all they captured.  They used a formal set of hearings to separate combatants from civilians, and these hearings were routine.  This continued during the Gulf War.

To this point, one is left wondering about the Bush administration’s commitment to constitutional separation of powers and the rule of law.  But Chemerinsky shows that there is even more to be uneasy about.  A Bush administration lawyer, previously known as a law professor and scholar, John Yoo, insisted in a legal memorandum that the president’s authority as commander in chief gave the president total authority to decide on the strategy and tactics for fighting any war.  Consequently a president could “authorize any interrogation techniques,” which meant that “restrictions imposed by laws or treaties were an unconstitutional infringement on executive powers.”  (p. 85)  Based on Yoo’s memorandum, “[t]op officials of the U.S. government were claiming no less than that the government could torture human beings, notwithstanding laws and treaties specifically forbidding this.”  (p. 86)  Chemerinsky concludes that this “is an assertion of executive power that recognizes no limits and acknowledges no checks and balances.” (Id.)  Dean Harold Koh concluded that, according to the memorandum drafted by Yoo and accepted by key Bush administration officials, “American officials . . . can use tactics that are tantamount to torture without being held liable.”[2]

One result was the extensive use of waterboarding, which Chemerinsky observes “has been regarded as torture throughout the world since the early twentieth century.”  (p. 87)  But it went even further:  “Prisoners were shaved and stripped naked and required to stay that way through long periods of time wearing only a diaper.  One detainee was kept naked for a month, during which he was questioned by many female interrogators.”  (Id.)  Some received sleep deprivation up to ninety-six hours, forced to stand in uncomfortable positions, and subjected to great pain.  (pp. 87-88)

Of just about equal concern, the Bush administration insisted that, as the commander in chief, and head of American foreign policy, the president is empowered to use “extraordinary rendition” as part of the process for detaining suspected terrorists who are enemy combatants.  Dean Chemerinsky describes the practice this way:

 Jane Mayer noted that the “number of renditions grew and hundreds of suspects were deposited indefinitely not just in foreign prisons but also in U.S.-run facilities in Afghanistan, Cuba, and the C.I.A.’ s top-secret black site prisons.”  No one knows how many individuals were subject to such “extraordinary renditions.”  Estimates range nywhere from 100-150 to several thousand terror suspects.  (p. 95)

In light of the theory of unrestricted power over strategic and tactical war-time decisions defended by Professor Yoo, it becomes especially important to recognize its potential implications:

Professors Blakesley and McAffee set forth how broadly such a view can be taken to be:

Checks and balances also do not obtain for the conduct of war.  Whatever the president orders is legal.  Torture and so-called “extraordinary rendition” or abduction of alleged terrorists to be sent to countries where they may be tortured or simply to disappear, are related abuses, based on the same theory of “legality,” constitutional “authority,” and power. . . .   Blakesley & McAffee, supra note 1, at 18.

Although the administration eventually abandoned its warrantless eavesdropping program—a practice that ignore both federal statutory law and the Fourth Amendment, Dean Chemerinsky goes on to outline the abusive, unjustified use of the federal statute authorizing, under carefully defined conditions, the detention of some “material witnesses.”  The Bush administration claimed authority to detain some suspected of being terrorists as a “material witnesses,” pursuant to a federal statute.  The statute required that the individual thus detained be a witness with testimony needed in a criminal case, in which detention of the individual was the only way to obtain it.  But the administration used the statute as a way to detain a criminal suspect without probable cause to arrest or hold the individual.  In one case, the courts concluded that the material witness statute “was used because the government did not have enough evidence to arrest him.”  (p. 93)  A Court of Appeals held that using the statute pretextually, as the government had done, simply to enable detention without probable cause, violates the Fourth Amendment.

All of this is reflective of a lawless attitude thought to be justified by the emergencies raised by the war on terror.  One need not think that Bush administration members are evil-minded souls who are determined to just put the Constitution to the side.  But the Dean is right on the mark in recalling the analysis of Justice Louis Brandeis:

Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent.  Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers.  The greatest dangers to liberty lurk in insidious encroachments by men of zeal, well-meaning but without understanding.”  (p. 99)

Dean Chemerinsky then concludes:   “Louis Brandeis, of course, never knew Dick Cheney or John Yoo or Donald Rumsfeld, but if he had, he could not have described them more accurately.”   (Id.)


[1] Quoted in Christopher L. Blakesley & Thomas B. McAffee,  The Bush Theory of the War Power:  Authoritarianism, Torture and the So-Called “War on Terror”- and its Evolution in the Obama Administration: A Critique, at 1.  [Unpublished manuscript]

[2] Harold Hongju Koh, Can the President Be Torturer in Chief?, 81 Ind. L.J. 1145, 1149 (2007), cited in,  Blakesley & McAffee, supra note 1, at 79 n. 259.


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