(Boston, Revised 11/13/09) New England Law | Boston: The terrorist attacks of September 11, 2001, shattered U.S. domestic tranquility and the nation’s sense of military invulnerability, leading to the popular notion that 9/11 “changed everything.” In response, George W. Bush and his administration claimed authority to respond boldly—to keep pace with what the president described as a new kind of enemy.
Professors Lawrence Friedman and Victor Hansen argue in a new book that the Bush administration’s response consciously ignored established norms for the separation of powers and prisoners’ rights; tarnished the country’s reputation as a champion of the rule of law; and ultimately made us no more secure. In The Case for Congress, Separation of Powers and the War on Terror, Friedman, a constitutional scholar, and Hansen, a former Judge Advocate General’s (JAG) Corps officer and criminal law expert, maintain that Congress’s hands-off approach was a serious failure.
The gutting of privacy rights through domestic surveillance without congressional and judicial oversight, Abu Ghraib abuses, Guantanamo waterboarding, and the denial of essential rights for detainees may well have been mitigated had Congress taken the active role envisioned for it by the framers, the professors contend.
The authors provide many examples where the post-9/11 Congress might have played a more active role. High on a list of recommendations for Congress is codification of the doctrine of command responsibility, which, the authors argue, would have aided the nation when it wrestled with the Abu Ghraib scandal. One of the doctrine’s key tenets is that criminal liability can be assigned to a commander when a substantial link exists between his actions and the crimes of subordinates, even if a direct order is not given. Greater congressional involvement would have likely introduced this critical idea during debate of the scandal, and, more importantly, could have resulted in more muscular attempts by commanders to preempt degradation of detainees.
The U.S. played a major role in developing the doctrine of command responsibility through conduct of post-World War II military tribunals, and though it has not been codified into U.S. law it is an accepted feature of international law that appears in treaties, statutes, and conventions. The authors assert that Congress should incorporate the doctrine into the Uniform Code of Military Justice.
The command responsibility section of the book stems from a 2007 Gonzaga Law Review essay by Professor Hansen that was honored as the best military article of the year by the National Institute of Military Justice (NIMJ). (Click here to view Professor Hansen's report on military commission hearings at Guantanamo this summer on behalf of the NIMJ.)
Influential conservatives including Judge Richard Posner, Berkeley Law Professor John Yoo (one of the primary architects of the Bush administration’s legal posture), and Chapman School of Law Professor John Eastman (who advised the House Judiciary Committee) argued that the War on Terror was not a set of discrete terrorist acts, but rather met the threshold to be called a war; as such, they believed, the president had the right to expanded wartime powers.
Posner, Yoo, and Eastman did not initially address how long the president’s enhanced wartime powers should last; this is a major concern since, as the authors note, “there is no hint as to when terrorism will cease to be a threat to national security.” Under these circumstances the president could conceivably be the sole arbiter of the extent and duration of his expanded authority.
Professors Friedman and Hansen emphasize that, while presidential clout does grow during wartime, Congress must provide guidance and boundaries. The book pointedly features Justice Sandra Day O’Connor’s Hamdi v. Rumsfeld conclusion: “A state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”
Codification of the executive’s state secrets privilege is another of the authors’ major proposals. The privilege has been used by the executive branch to resist information requests by Congress and the press and to avoid acknowledgment of highly contentious undertakings such as the Bush administration’s extraordinary rendition program, during which suspects were forcibly transported to third-party nations for questioning.
These incidents strained relationships with allies Canada and Germany, whose nationals alleged that they were tortured when taken against their wills to Syria and Afghanistan, respectively. The men could not contact their governments, families, or attorneys until it was determined that they were innocent.
The authors state that the privilege remains “undefined” and that “this fluidity gives Congress and the courts the ability and responsibility to push back when each determines that the executive has pushed too far.” If Congress took the important step of codifying the privilege as a formal rule of evidence, it would provide the courts with a more defined structure to apply when reviewing future cases. Professor Friedman noted, “Adoption of these and other legislative changes will rein in presidents who believe they have unchecked authority in these areas.”
The book recalls that during the George H. W. Bush administration in the 1990s, Vice President Cheney and his chief legal counsel, David Addington, made a strong effort to reduce the power of military lawyers. As Professor Hansen recounted, “That was an area that got Congress’s attention, and it pushed back on the executive’s attempt to reduce the authority of military lawyers. We included that as an example to say, ‘It can be done.’ Congress can check a president if it wants to.” The authors hope the book spurs further action. “We want readers to gain recognition that our Constitution envisions a very robust structure for all branches of government and in particular between the two political branches,” said Hansen. “Congress is an equal player and has certain responsibilities” he continued, “and we, the electorate, have a responsibility to hold Congress accountable.”