September 13, 2011

A Decade of Legal Blunders

We’ve made many mistakes since 9/11—including torturing detainees and expanding presidential power.

Ten years ago, the fate of this nation, and of the world, was changed by a coordinated and premeditated Al-Qaeda attack that leveled the Twin Towers in lower Manhattan, damaged the Pentagon, downed four American airplanes within American airspace, and claimed the lives of over 3,000 innocent people. By the time the dust settled, the conventional wisdom predicted that this attack was to be the first among many that could lead to the imposition of draconian limitations on civil liberties, all in our fruitless quest to keep one step ahead of a wily, ruthless, and shadowy adversary.

A decade later, as countless commentators have recounted with a sigh of evident relief, none of these dire predictions has come to pass. Al-Qaeda has surely been weakened. No second attack of major consequence has taken place in the United States. The few incidents overseas have all been of smaller magnitude. Al-Qaeda has been degraded. Its key operatives have been picked off one by one, its finances have been choked off, and its communications lines have been severed by smart intelligence work in the United States and elsewhere. Keeping Al-Qaeda at bay has been a resounding success for U.S. counterterrorism.

Epstein
Illustration by Barbara Kelley

The crucial question, however, is whether the other components of our decade-long counter-terror program have been equally successful. At this second level, we have a mixed verdict. The three key pieces of U.S. policy to evaluate are these: First, what level of force should the United States have used against those groups and nations that backed, and continue to back, the use of terror against the United States? Second, what are the implications of this policy for civil liberties in the United States on issues like detention, rendition, torture, and surveillance? Third, how should the power to carry out these actions be divided among the three branches of government—the president, the Congress and, especially on matters of individual liberty, the courts?

In dealing with these multiple issues, it is all too common for commentators to adopt some lockstep view. Those people who are opposed to strong intervention abroad tend to be both highly protective of civil liberties at home and deeply suspicious of any unilateral exercise of presidential power. Those people who support a muscular foreign policy tend to downplay the importance of civil liberties and to be dismissive of claims of excessive concentration of presidential powers. On this score, the editorialists at The New York Times and The Wall Street Journal hold the polar opposite views. My view tends to discount these supposed linkages, and here is why.

On the question of using force against terrorists, there is little doubt that the Bush and the Obama administrations both took the correct position when they decided that terrorists should be treated as individuals who are at war with the United States, and who should be dealt with as any other avowed enemy of the nation. At this point, there is no delicate question of separation of powers. We do not have to go through the pointless formalities of declaring war on those who, by their words and their deeds, declared war on us. It is of course always possible to use civil courts or military commissions to try such individuals. But there is surely no need to go through the judicial route to hunt down any individuals at large who, by their own proud admission, pose a direct threat to the United States. Taking out Osama bin Laden should give rise to no pangs of legal regret, even if our own special forces could have bundled him out of Pakistan and into an American detention facility to await trial for crimes against humanity. Nor is there need, in my view, to show any special dispensation toward individuals such as Anwar al-Awlaki solely because he has joint United States and Yemenese citizenship. He is fair game as well, and ought to know it.

The arguments are much more complicated with respect to the decisions to take strong military action in Afghanistan and Iraq. The decision to go after nations that harbor those who impose threats upon the United States is perfectly consistent with any notion of criminal responsibility and international law. Whether it is worth running the risks of major military involvement is, however, solely a political decision that has to be thrashed out between the Congress and the president. On this score, the initial decision to go into Afghanistan in 2001 seems to have proved correct. The unresolved debates over the initial Iraqi invasion of 2003 and the surge of 2007, when all seemed lost, render a mixed verdict over that war.

The Bush administration made a series of mistakes in its detention policies.

On these questions, I only wish to inject two notes of caution. First, the soundness of the decision to take out Saddam Hussein should not be regarded as a mistake even though the Bush administration disastrously ran the first years of the Iraqi occupation when it unwisely decided to disarm all the Ba’athists. It would have been far better to place them under the control of the new Iraqi government. You can fault the Bush administration for that error, but do not treat that error as a reason to discredit the initial choice to topple Saddam. The second point is that half-measures never work in times of conflict. It is to the lasting credit of George W. Bush that he disregarded the defeatists and skeptics, including then-Senators Joseph Biden and Barack Obama, when he opted for a major surge. The success of military intervention does not rest on a deep commitment to Aristotelian principles of moderation. Either a nation enters with overwhelming force or it stays out.

A bellicose response to terrorist attacks does not, however, make the civil liberties issues go away. Initially during times of war, people are rightly willing to accept limitations on civil liberties. But there is always the need for caution on the matter of what sacrifices should be made and why. The overall issue can be conveniently divided into two parts. First, there are those measures that impose specific burdens on select individuals who are thought to impose special risks to the security of the nation. Second, there are generalized security measures that apply to the public as a whole.

As to the first, the central question is which individuals should be singled out for detention, for rendition, and for interrogation, which could include "enhanced" methods that may meet a common-sense definition of torture. On this issue, the early years after 2001 involved all sorts of self-inflicted wounds on the United States. One key problem here was the peculiar non-state status of Al-Qaeda. At one level, no one was prepared to say that Al-Qaeda could gain exemption from a sharp American response because it was not a nation with whom the United States could be at war. Yet in the next breath, the position was that we did not have to supply the protections of the Geneva Conventions to detainees precisely because they did not cover non-state actors.

The United States government tiptoed around these difficulties, alienating everyone on all sides of the issue. The United States should have extended the protections of the Geneva Conventions to enemy combatants whether the U.S. was strictly required to or not. That approach would have led to a different attitude toward the question of rendition and torture. It would have led government officials to reject categorically the idea that we could farm out the right to torture to our allies overseas while retaining the right to reclaim custody of prisoners once the torture was over. And it would have led the administration to reject the untenable, narrow definitions of torture that were advanced in John Yoo’s famous torture memos.

Try as I might, I cannot bring myself to believe that a statutory prohibition statutory prohibition against the infliction of "severe physical or mental pain or suffering" should be read so narrowly that it covers only "death, organ failure, or the permanent, impairment of a significant body function." In particular, a sensible definition of torture seems to cover water boarding, where one pours water over the face of an immobilized and blindfolded individual to induce the immediate gag reflex of drowning. There is of course a separate question of whether any set of dire circumstances might justify water boarding. But that question is quite different from the broader assertion that the narrow definition of torture dispenses with the need for any justification at all. The Bush administration eventually stopped this practice. It should have done so much sooner, without putting up a public defense that lacked the power to persuade.

The United States should have extended the protections of the Geneva Conventions to enemy combatants.

The Bush administration also, in my view, made a serious mistake in its general detention policies. Without question, the writ of habeas corpus ordinarily allows a person to be brought before a neutral judge to determine whether he or she has been lawfully detained. But that writ has never attached to prisoners of war captured in the ordinary course of military conflict. Nothing in the United States Constitution changes that balance. The relevant constitutional provision found in Article I, section 9 of the Constitution reads: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it." Its sole function is to make sure that Congress or the president (and this itself is a complex issue) only suspend the writ for three reasons: rebellion, invasion, or public safety. But at no point does it indicate which individuals are entitled to the writ in the first case—a question that has to be answered independently, on the basis of historical practice, before the suspension clause applies at all.

The difficulty here is that in undeclared wars against unmarked adversaries, it is hard abstractly to determine which individuals were entitled to habeas corpus in the first place and which were not. That issue cannot be swept under the rug when bounty hunters claim to turn in enemy combatants to settle family feuds or to collect large rewards. The new practices introduce a risk of error that is too great to ignore. My own sense is that it is imperative for some neutral party, preferably a federal judge, to decide whether these individuals fall within the class of persons protected by the writ, which, without question, extends to aliens as well as citizens. Unfortunately, the Bush administration insisted on truncated provisions for protection until the courts slapped down that policy.

Presidential resistance on this ground seems to be legally suspect and prudentially unwise. The correct approach was to recognize the difficulty of the matter, to organize procedures that allowed for these doubtful cases to be heard in an orderly fashion, and not to transport selected suspects to facilities outside the United States on the shaky ground that no constitutional protection is afforded to aliens in American custody outside the American territorial limits including, as it eventually turned out, Guantanamo Bay. On this issue, Congress was as weak as President Bush. The Detainee Treatment Act of 2005 placed tighter controls on torture, but placed excessive obstacles in the path of deciding whether the detainee was in fact an enemy combatant in the first instance.

The effort to deny detainees access to courts was misguided from start to finish. A candid recognition of the competing interests would have led both Congress and President Bush to take proactive steps to get these determinations correct under standardized procedures, not to sweep them under the rug. The standards of proof on the government are less than those needed to obtain conviction in a criminal trial. Once that determination is made, the case for indefinite detention of persons who are found to be enemy combatants makes good sense, for there is no case for releasing (as was too often done) dangerous individuals who will rejoin enemy forces to fight against the United States from their home bases. In other words, it would be a mistake on civil liberty grounds to force upon government the unhappy dilemma of either prosecuting criminally or releasing individuals whose enemy status has been already determined.

Detention policies directed against single individuals should, in my mind, be subject to far greater procedural protections than any program of surveillance and inspection that applies to the general population. These general programs are less subject to abuse than targeted actions. The level of intrusions into privacy is far smaller than the real hardship of detention or other loss of liberty. And the political checks against abuse are usually greater. The great advantage that the United States has in combating terror relies on its technical wizardry in tracking and organizing vast quantities of anonymous data. That advantage would be frittered away by the same restrictions on general intelligence investigations that are appropriate to criminal cases. Instead, the risk of government misbehavior is better checked by some administrative review mechanism used to insure that the procedures chosen are performed correctly—which in my view calls for an absolute immunity for those individuals (including private telecommunications companies) that supply information. The key set of ex post criminal and civil sanctions should be reserved for government officials who transfer information to unauthorized parties for collateral political purposes, which was what doomed the presidency of Richard Nixon after Watergate.

Bush should have rejected the infamous torture memos.

Accordingly, I do not think that a well-designed program of surveillance should survive any Fourth Amendment challenge as an unreasonable search and seizure. The major issues, therefore, in connection with the Bush administration’s surveillance program in the aftermath of 9/11 did not implicate civil liberties, but presidential power. Indeed, the second major mistake of the torture memos was its exaggerated view of the scope of the president’s role as commander-in-chief. The constitutional text does not refer to any generalized president’s power, but rather states more simply, "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." That power is not unlimited because the president has to "take care" that the laws be faithfully executed, which means that he acknowledge that Congress has the power "To make Rules for the Government and Regulation of the land and naval Forces," of which he is a part.

The precise lines between Congress’s rulemaking power and the president’s operational authority are not written in stone. Nonetheless, the Bush administration, spurred on by Vice President Dick Cheney and his chief of staff David Addington, went over the top by assuming that the president has some free standing power that allowed him to ignore both Congressional will and international treaty obligations. That expansive view of presidential power set up a huge conflict over the application of the 1978 Foreign Intelligence Surveillance Act (FISA), which imposed a set of outmoded limitations on the ability to counteract terrorist maneuvers.

The Bush administration should have abandoned its dubious campaign for expanded presidential power—a campaign that ran against the Constitution and authoritative constitutional decisions. For instance, the Steel Seizure Case of 1952 emphatically rejected President Harry S. Truman’s broad claims of presidential power during the Korean War. As Justice Robert Jackson urged, the president’s power is at its "lowest ebb" "when the President takes measures incompatible with the expressed or implied will of Congress." Unlike the detention cases, matters of the protection of individual rights did not impose any insuperable obstacle on surveillance issues. What was needed was for a president to push forcefully for a change in the rules of the game and for Congress to seize the moment to supply it. The upshot of the prolonged struggle between the two branches in the aftermath of 9/11 did not reflect well on either branch of government. In the end, this matter too was ultimately resolved by making FISA amendments. It should have happened a lot sooner.

This brief summary of the legal events of the last decade does incomplete justice to both the importance and the complexity of the issues. But it should leave us all with the unhappy sense that many critical decisions made in haste were erroneous. The good news is that with time, most of the egregious errors that followed in the wake of 9/11 did get ironed out. The great strength of our political institutions is that, however haltingly, through public debate and political action, they are capable of self-correction. If we can learn from these mistakes, perhaps we shall do better in the future. My greatest concern does not arise from a fear that the lessons of the past decade in the constant struggle between liberty and security will go unnoticed. Rather it lies in the more sobering fact that the continued erosion of the American economic base could deny us the resources needed to implement, both at home and abroad, the policies that could keep this balance in order.


Richard A. Epstein, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law at New York University, and senior lecturer at the University of Chicago, researches and writes on a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporate law, criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation. His publications cover an equally broad range of topics. His most recent book, published in 2013, is The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013). He is a past editor of the Journal of Legal Studies (1981–91) and the Journal of Law and Economics (1991–2001).


Letters to the editor

Underestimating the Brutality of War

I disagree with Mr. Epstein on this matter. I think he greatly underestimates the harshness and brutality of war. To apply a comprehensive system of justice in a global struggle against Islamic terrorism is just too much. To quote former Secretary of Defense Caspar Weinberger, “Our men are trained to vaporize, not Mirandize.” We are seeing the results already of a movement towards a policy like Mr. Epstein describes. We simply vaporize suspects, and anyone nearby, from the air rather than deal with the myriad problems associated with their capture, interrogation, and subsequent handling. No soldier should be expected to bear mortal risk to capture prisoners who have no military value.

---Mike McElravy

What About Project Gunrunner?

I thoroughly enjoyed this excellent dissertation by Richard Epstein. I can hardly wait for a similar analysis of the current administration’s involvement in the Gunrunner program, also known as Fast and Furious.

---R. Willis Cook


Letters to the editor may be sent to definingideas@stanford.edu. Editors reserve the right to reject or publish (and edit) letters.