By Benjamin Wittes and Jack Goldsmith
Monday, June 29, 2009
Soon after the Sept. 11, 2001, attacks, the Bush administration faced a fateful choice about terrorist detainees: Should it get Congress on board, or go it alone? President George W. Bush bypassed the legislature and for seven years based U.S. detention policy on his own constitutional authority, Congress's general authorization for the war against al-Qaeda and its affiliates, and the international laws of war. Working with Congress would be hard, administration officials reasoned; the legislature might constrain executive flexibility; and the president had powerful arguments that he didn't need additional legislative support.
Today, President Obama faces much the same choice, and he appears sorely tempted to follow the same road, for the same reasons: "White House officials are increasingly worried that reaching quick agreement with Congress on a new detention system may be impossible," The Post reported Saturday, and "Congress may try to assert too much control over the process." Obama is considering creating a long-term detention apparatus by presidential executive order based on essentially the same legal authorities the Bush administration used.
Obama, to put it bluntly, seems poised for a nearly wholesale adoption of the Bush administration's unilateral approach to detention. The attraction is simple, seductive and familiar. The legal arguments for unilateralism are strong in theory; past presidents in shorter, traditional wars did not seek specific congressional input on detention. Securing such input for our current war, it turns out, is still hard. The unilateral approach, by contrast, lets the president define the rules in ways that are convenient for him and then dares the courts to say no.
This seductive logic, however, failed disastrously for Bush -- and it will not serve Obama any better. Bush's approach avoided congressional meddling but paradoxically sloughed off counterterrorism policy on the courts. Over time, the judiciary grew impatient with ad hoc detention procedures that lacked clear and specific legislative authorization, and judges began imposing novel and increasingly demanding rules on the commander in chief's traditionally broad powers to detain enemy soldiers during war.
The result has been nearly eight years of unstable policy with no safe harbor for executive conduct and no settled rules for detainees. Ironically, one of the biggest casualties of this misadventure was the executive authority the Bush administration held so dear. At least in detention policy, Bush left a weaker presidency than he inherited, one encumbered by unprecedented restrictions imposed by judges.
In the short term, Obama may get away with a unilateral executive detention scheme. His personal prestige is high. He can dress up his detention plan as a narrowing of Bush's policy. It will apply to fewer detainees than Bush's policy and at a facility not named Guantanamo Bay.
But refusing to go to Congress still leaves inexpert and unaccountable courts to decide the details of our detention policy. Courts will not defer forever to the notion that the government can lock up people indefinitely on the say-so of the president, and, as time passes, they will continue their march toward peacetime criminal-justice standards and procedures for wartime detainees. The result will be continuing uncertainty, further judicial encroachments into the conduct of warfare and further constriction of the president's power. Hard trade-offs between liberty and security will be made haphazardly and without democratic legitimacy.
The alternative, going to Congress, will be painful politically -- as Congress's budgetary machinations limiting the president's discretion on closing Guantanamo have highlighted. Obama would have to spend political capital that he prefers to save for health care and climate change.
The president can still get what he needs on detention if he works from Congress's bipartisan center, if he releases more substantial information about the detainees he thinks cannot be set free and if he speaks often -- as he did at the National Archives recently -- about the need for stable rules to govern non-criminal detentions that America cannot forswear. Presidential insistence on detention legislation will force members of Congress to take a stand and will minimize congressional carping down the road. The process of crafting this legislation would spark a debate that would educate the country about the threat we face and would legitimate whatever policies emerge from the process.
When Franklin D. Roosevelt sought congressional authorization for the Lend-Lease program in January 1941, the isolationist-leaning nation was evenly split over the proposal. After two months of sharp congressional argument and national debate, almost two-thirds of the country supported Lend-Lease, and Congress passed the program by large margins. "We have just now engaged in a great debate," Roosevelt proclaimed. "It was not limited to the halls of Congress. It was argued in every newspaper, on every wavelength, over every cracker barrel in all the land; and it was finally settled and decided by the American people themselves. Yes, the decisions of our democracy may be slowly arrived at. But when that decision is made, it is proclaimed not with the voice of any one man but with the voice of one hundred and thirty millions. It is binding on us all. And the world is no longer left in doubt."
Roosevelt's approach, not Bush-era unilateralism, should be President Obama's model.
Benjamin Wittes is a senior fellow at the Broookings Institution and the author of "Law and the Long War: The Future of Justice in the Age of Terror." Jack Goldsmith teaches at Harvard Law School and served as an assistant attorney general in the Bush administration. Both are members of the Hoover Institution's Task Force on National Security and Law.