Editors’ Picks: Executive Power & Counterterrorism Policy

Annotations by Christopher deLaubenfels, a student at New York University School of Law,with assistance from Just Security’s senior editorial team

Eric A. Posner & Adrien Vermeule, The Executive Unbound: After the Madisonian Republic (2011).

In The Executive Unbound, Posner and Vermeule provide an alternative view to Schlesinger’s imperial presidency—while the current presidency may not be the vision of the Founders, it is necessary in the modern world.  The Executive Unbound provides a sharp critique of legal liberalism – arguing that politics more than law is the principle restriction on executive power.  Posner and Vermeule provide a descriptive and normative analysis on how politics and society define the relevant boundaries of modern executive power.  find online » [Amazon] [Oxford University Press]

Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047 (2005).

In Congressional Authorization and the War on Terrorism, Bradley and Goldsmith provide an interpretive framework for the AUMF, the legislative resolution authorizing the use of force against those responsible for the 9/11 attacks.  The article provides an analysis of SCOTUS’s opinion in Hamdi v. Rumsfeld. More broadly, the authors suggest that courts and the executive should interpret the AUMF with reference to political branch practice during prior wars and to the laws of war, which give content to the powers granted by the AUMF and provides boundaries for the scope of congressional authorization.  Bradley and Goldsmith apply their framework to three issues: identification of enemies, detention of persons captured domestically, and the validity of trying terrorists in military tribunals.  Of particular significance, Bradley and Goldsmith underscore the extent to which most of the Bush Administration’s counterterrorism policies can be grounded in the AUMF – even as they have been defended on broader, and more controversial theories of inherent and indefeasible executive power.  find online » [Heinonline] [SSRN] [Lexis]

Jack Goldsmith, The Terror Presidency: Law and Justice Inside the Bush Administration (2009).

In The Terror Presidency, Goldsmith provides an inside look into George W. Bush’s Office of Legal Counsel, where he served as Assistant Attorney General from 2003-2004.  Goldsmith discusses several decisions that the Bush Administration made during his time, including the definition of torture, the applicability of the Geneva Convention to the so-called “War on Terror,” the Iraq War, surveillance, and Guantanamo Bay detention.  The Terror Presidency provides a sympathetic view of the complex decisions the Bush Administration faced in light of terrorism concerns, while criticizing the administration for acting in secrecy and not basing its policy decisions on legitimate legal foundations. As Goldsmith argues, the administration arguably weakened its authority by relying upon arguments grounded in inherent and indefeasible executive power, rather than involving Congress—and seeking legislative authorization—far earlier after September 11. [See also Just Security’s extended coverage of Goldsmith’s book in our Books We’ve Read section.]  find online » [Amazon] [WW Norton & Co.]

Trevor Morrison, Stare Decisis in the Office of Legal Counsel, 110 Columbia L. Rev. 1448 (2010).

In Stare Decisis in the OLC, Morrison provides an empirical analysis of the OLC’s legal opinions from the Carter to Obama administrations. The article is written in light of the Torture Memorandum and criticisms that the OLC is overly politicized.  Stare Decisis in the OLC is an important piece in the debate over the role of the OLC and its power, constraints, and transparency. While Morrison recognizes decisions where the OLC may have been acting politically, he disputes that the OLC is overly political, observing that the OLC rarely departs from its prior decisions.  In order to strengthen the perception and function of the OLC, the article argues that, normatively, the OLC should be bound by stare decisis, and when the OLC departs from precedent, it should be made public.  find online » [Columbia Law Review] [Heinonline] [SSRN]

David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689 (2008); David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 Harv. L. Rev. 941 (2008).

In this two-part set of law review articles, The Commander in Chief at the Lowest Ebb, Barron and Lederman offer a comprehensive study of the idea that the President has inherent power as commander in chief, meaning that the executive has the power to take certain military actions without congressional authority. Ultimately, they conclude that such a theory of inherent and indefeasible executive power has little historical basis.  Instead, the authors argue that in general military campaigns have rested within legislative control.  The articles focus on whether and when the President may exercise Article II war powers (the constitutional powers granted to the executive to repel attacks against the United States and to lead the armed forces) outside of congressional authorization or limitations. Barron and Lederman provide a historical review and doctrinal analysis of the war powers and urge executive and legislative precaution in departing from traditional conceptions of those powers.  find online » Part 1 [Harvard Law Review] [Heinonline] [JSTOR]; Part 2 [Harvard Law Review] [Heinonline] [JSTOR]

Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (2007)

In Before the Next Attack, Ackerman explores the U.S. legal responses to terrorist attacks that often infringe on civil liberties.  Ackerman criticizes courts for establishing a war framework that gives the President extreme powers.  In this book, Ackerman proposes an alternative approach to confronting terrorist attacks: an emergency constitution.  The emergency constitution would temporarily enable the government to take extraordinary actions to prevent future attacks, but prohibit the implementation of long-term laws that impede on liberty. Ackerman proposes a “supermajoritiarian escaltor” framework, under which the President would be required to return to Congress every two-months for subsequent reauthorization of emergency powers.  While the initial authorization of expanded power would require only a simple majority vote, each subsequent reauthorization must obtain a supermajority of both Houses of Congress, with the required percentage of support increasing by 10% each time. Ackerman comparatively analyzes the emergency provisions featured in the constitutions of foreign nations to propose features for the United States to adopt.  find online » [Amazon] [Yale University Press]

Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (2011)

In The 9/11 Effect, Roach provides a critical examination of the response of the United Nations and several other countries to the September 11th terrorist attacks.  The book compares several approaches of the UN and other countries, including countries with extensive pre-existing anti-terrorism legislation, adopted in reaction to the attacks. The book covers criminal and immigration law reforms, regulation of speech related to terrorism, and the development of other national security policies. The 9/11 Effect identifies mistakes—made in the global anti-terrorism movement such as the adoption of uniform models of counterterrorism legislation despite different national and strategic conditions, and challenges, including the rehabilitation of terrorists, which the international community will face in the future.  find online » [Amazon] [Cambridge University Press]

Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 Yale L.J. 1011 (2003)

In Chaos and Rules, Gross proposes an “Extra-Legal Measures” model for confronting national emergencies.  Gross contends that there are circumstances where public officials should use extra-legal, even unconstitutional, methods to confront grave threats.  His model maintains that officials’ illegal actions should be allowed as long as they publically acknowledge their actions and the public has the opportunity to (i) approve them after the fact or (ii) hold accountable those responsible for the actions. Chaos and Rules argues that the “little wrong” of extra-legal actions can be justified if they achieve a “great right.”  find online » [Yale Law Journal] [Heinonline]

Stephen I. Vladeck, Congress, the Commander-in-Chief, and the Separation of Powers After Hamdan, 16 Transnat’l L. & Contemp. Probs. 933 (2007)

In The Separation of Powers After Hamdan, Vladeck examines this landmark decision and its effect on separation of powers.  Vladeck argues that, although Justice Stevens’ plurality opinion in Hamdan paid lip service to Justice Jackson’s canonical concurring opinion in the Steel Seizure case, his opinion in fact reflects a far more skeptical view of the President’s ability to prevail in disputes falling into the “lowest ebb” of Jackson’s taxonomy—and a subtle but decisive repudiation of the “Commander-in-Chief Override” theory that had previously been relied upon by the Bush Administration.  find online » [Heinonline] [SSRN] [Lexis]

Louis Fisher, The Constitution and 9/11: Recurring Threats to America’s Freedoms (2008) 

In The Constitution and 9/11, Fisher provides a two-part analysis of oft-conflicting goals of the Constitution and national security policy. First, Fisher offers an historical investigation of the U.S. government responses to national security threats from the nation’s founding to the end of the Cold War. Fisher then explores the constitutionality of five post-9/11 national security responses: (i) military tribunals, (ii) Guantanamo detentions, (iii) state secret privileges, (iv) NSA surveillance, and (v) extraordinary rendition. The Constitution and 9/11 contends that the executive, legislative, and judicial branches have failed to protect civil liberties throughout the nation’s history. Fisher asserts that normativelythe United States should uphold constitutional values, such as habeas corpus for Guantanamo detainees, even during times of national security threats.  find online » [Amazon] [University Press of Kansas]