The State Secrets Privilege. I know little about this doctrine and defer to Bobby’s superior expertise. I will just make a simple point that will by now be familiar. The state secrets privilege, like the other rules we have discussed, reflects a tradeoff between liberty (or some other value at stake in a particular case) and security. The privilege allows the executive to maintain secrecy where publicity would aggravate a security threat, but by the same token enables the executive to engage in various forms of abuse without detection and serious review by the courts. It is tempting to say, and it is said often, that whatever other powers the executive should have during an emergency, at least its actions should be transparent, so that the public can evaluate them. If it must detain people without charges, for example, at least make it do so in the sunshine. Unfortunately, this response simply denies the premise that in some cases loss of secrecy can have devastating consequences, a premise that no one denies but everyone tries to minimize in arbitrary ways (typically by admitting only that troop movements might appropriately be secret, as though troop movements were a phenomenological category carved into the structure of the universe). The risk of executive abuse is the necessary cost, just as it is when one sets up a government in the first place. In this respect, I believe that our view is no different from Bobby’s. What I would add is only that while the privilege must surely be necessary during normal times, it ought to be broader during emergencies, for all the reasons that we have been discussing: when the threat to security increases, a higher risk of executive abuse needs to be tolerated. Of course, if the threshold is already extremely low during normal times, it might not be necessary to expand it during emergencies (but then the privilege should probably be more limited during normal times); or it might be that the degree of emergency is implicitly built into the threshold.



Alternatives. Julian’s post correctly notes that most legal academics think that the judiciary should play a significant role to restrain the executive during the emergency. But there is a third view, generally associated with Cass Sunstein, and Rick Pildes and Sam Issacharoff. On this view, courts should be deferential as long as Congress has authorized the executive action in question. The kick here is that congressional authorization that would not immunize executive action from judicial challenge during normal times does so in an emergency. I do not agree with their arguments, but I can see how many people would find them appealing. If we could reproduce something like the war cabinet system that has served Britain well, that would indeed be worth considering. But the U.S. system is nothing like the British system, and I do not think Congress or members of Congress or particular committees could operate as a kind of war cabinet. Still, the Sunstein/Pildes/Issacharoff proposals have a very significant merit: they make clear that the problem of emergency powers is just an institutional problem. It involves thinking about decision costs, error costs, and the relative capacities of the different branches of government. We all might have different ideas about how to weigh these factors, and once we discuss these different ideas, it becomes clear that the debate is empirical and (at a very low level) analytic, not ideological. Worries about tyranny, fascism, deontological principles, and the like, could be put in the same dustbin as the Federalist Papers.



Censorship. I do think that censorship raises the same issues as the other types of executive actions that we discuss, and that the tradeoff and deference theses apply with equal force. It is interesting to speculate about what would happen if the U.S. had the homegrown terrorism problem that currently afflicts Britain. Would U.S. authorities try as hard as the UK government to censor firebrand imams? It’s hard to say. I expect they would if the problem was serious enough, and I expect courts would defer. But, given U.S. traditions, the problem would probably have to be more serious than it currently is in Britain.



A general thought. One other thought, which has been provoked indirectly by a few of the posts and some of the comments, but mainly by other reactions I have seen from time to time: many people seem to think that the question of the proper tradeoff between security and liberty during emergencies, and the proper role of different government institutions, can be resolved by parsing doctrine. This is most definitely not our view. Given certain broad institutional constraints, the problem is mainly normative and empirical. The contributors to this debate who pour over opinions, statutes, and the constitutional text are often very impressive lawyers, but they are going about the problem the wrong way, and, inevitably, they end up supplying answers by smuggling in normative and empirical assumptions that they do not acknowledge and defend.



Kevin’s Questions. On the first, the book not being a brief for the Bush administration, the only question is whether the hypothetical second 9/11 attack sheds new light on the relative institutional capacity of the presidency. It might not; or it might show that the presidency is not strong enough; or it might show that the presidency is too strong. Everything would depend on the reasons for the attack’s success, and whether one thinks a more constrained president would have either prevented the attack or done less harm to civil liberties in the course of failing to prevent it. Suppose that during World War II, the German offensive in the Ardennes had succeeded and allied troops were driven off continental Europe. Would it have been proper for Congress and the courts to assert control over the executive on the grounds that FDR was incompetent? It would probably take something even worse than that to precipitate such a constitutional crisis.



On the second question, I can’t think of any off the top of my head, but that is probably just due to my ignorance. But one can think of hypotheticals. An extreme example I suppose would be a full-scale invasion of Iraq, designed to weed out some suspected al Qaede elements and to convert Iraq into a model Muslim democracy, a beacon for the Muslim-Arab world, one that would help eliminate the roots of the extremist ideology that resulted in the first 9/11. Although judges could do nothing about this hypothetical Iraq invasion, it would probably not deserve deference from Congress.



My thanks again to Opinio Juris, and Roger in particular, for organizing this symposium. I am sorry that I have not been able to respond to the many interesting comments.

I appreciate Adrian’s thoughtful response to my post on military detention, and would now like to shift gears to a distinct topic of at least equal current significance: the state secrets privilege (“SSP”).

We could have a whole symposium on this issue alone, no doubt. In fact, we had one a few months ago over at my usual blogging abode, National Security Advisors; I strongly recommend that exchange for anyone who wants to get down into the details of the SSP debate. I do not propose to rehash the entirety of that debate here, though, but instead simply to flag this topic as one in which the deference thesis is currently in issue in live litigation; anyone who has listened to last week’s oral argument in Hepting v. AT&T Corp, before a Ninth Circuit panel, will appreciate that there continues to be great uncertainty even among judges with respect to (a) the doctrinal details through which the SSP is implemented and (b) the separation of powers principles that should give rise to those details (see in particular the exasperated exchange between Judge Pregerson and Dep. SG Garre with respect to the deference judges owe in this context).

According to the Supreme Court’s 1953 decision in Reynolds, the substantive test for application of the privilege is whether disclosure of the information in issue poses a “reasonable” risk of harm to national security. As a formal matter, the existence of such a risk must be expressly asserted by the head of the agency or department with responsibility for that information (the DNI, for example). At the same time, the majority in Reynolds expressly rejected the proposition that the mere assertion of the privilege by the executive should bind the court; whatever deference the executive official should receive, it ultimately is the responsibility of the court to decide whether the reasonable-risk predicate truly has been satisfied.

Assuming that description of the doctrinal status quo is correct, would the deference thesis require a shift in the doctrine such that the executive invocation of the privilege becomes dispositive? I’m not sure that this is so—perhaps the thesis would cash-out in this context precisely where the doctrine already is—but if it is, then it seems to me that this would not be desirable. On one hand, the existence of at least some prospect for judicial review has a salutary effect: the possibility that a judge might reject an assertion of the privilege serves an important role in disciplining executive officials in their invocation of it, counterbalancing any temptation there might be to invoke the privilege in entirely unwarranted circumstances (something that I think would be rare, but which I would not rule out). Against that benefit, there is a potential cost: a judge might improperly reject a valid invocation of the privilege (something that I think would be rare, but which I would not rule out).

Does one consideration outweigh the other? Before answering that question, I think it is important to recall the relatively-forgiving substantive standard to which the judge holds the executive official: demonstration of a reasonable risk to national security should disclosure occur. Because that threshold is quite low, it is relatively difficult for a judge to plausibly assert that the executive official has not satisfied it (indeed, this is the cause of considerable criticism of current SSP doctrine). As a consequence, the potential for unwarranted rejections of the privilege is constrained relative to what might occur under a tougher predicate requirement. I can’t quantify the resulting costs of permitting second-guessing by the judge, and therefore can’t entirely follow through on this cost-benefit analysis. Still, this constraint on the judicial error variable gives me some reason to believe that the benefits are indeed worthwhile.

(Knowing that many readers are extremely critical of the SSP, by the way, I feel obliged to add at this point that I do think that there is room for creative measures designed to alter the SSP status quo in limited ways. I’ve argued elsewhere that Congress should consider creating FISC-like fora for litigation of certain claims that otherwise would be dismissed under the SSP, and that there might even be ways to provide expert assistance to judges engaged in the process of considering whether the reasonable-risk standard has been met in a given case.)

That probably will be my final contribution to this terrific discussion. I’d like to thank Roger and the rest of the OJ crew for having me, the other participants and commentators for their thought-provoking observations, and Eric and Adrian for making such a significant contribution to the literature.

Bobby Chesney’s post about military detention asks all the right questions and I agree with the first several steps in his analysis of those questions. I want to record some questions or quibbles about the later steps in his analysis, however. It is true that Hamdi baldly forecloses “indefinite detention for the purpose of interrogation,” but it is possible that the emphasis here should be on “indefinite,” rather than on “interrogation”, especially in the context of the Court’s discussion, in which the central worry seems to have been that detention could go on forever (whatever the grounds of detention). In any event, our point of course is to criticize Hamdi’s procedural framework for detention, although of course we approve of its holding that detention is substantively authorized by the AUMF. We don’t take Hamdi‘s procedural holding as a fixed point; its correctness is what we mean to question.

If Hamdi’s holding (dictum?) barring detention to acquire intelligence is correct, it would have to be because, as Chesney explains lucidly, there is some predictable skew in the government’s decisionmaking, such that it will detain too many people, inflicting too many costs for too little benefit. The benchmark for determining whether such a skew exists is not just the number of false positives and false negatives, but a weighted comparison of their costs and benefits. A false positive – here, detaining someone who has no useful intelligence – might be less costly overall than a false negative – failing to detain someone who does have useful intelligence. The former is of course more costly to the detainee, the latter to society; a rational and well-motivated government would weigh these costs impartially. The crucial questions, then, are the rates of false positives and negatives, the costs of false positives and negatives (which are not necessarily equivalent), the government’s incentives to conduct the calculus accurately, and whether the judges can improve upon the government’s decisionmaking.

I have not yet heard any account suggesting that if the government could detain in order to gather intelligence it would do so to excess, or that the judges could improve upon its decisionmaking, although I am open to thinking that there is such an account. I will say only that false positives are hardly costless to the government in this setting. One of the comments to Chesney’s post (by Geoffrey Corn) mentions several such costs, such as “distracting resources from more precisely focused intelligence gathering, and overwhelming the logistical capability to hold and care for such individuals.” Even if the government only cares about its own costs, not total social costs, it will have an incentive to keep down the number of false positives. Whether the incentive is adequate is difficult to say; by the same token, however, I see no basis for judges to be confident that it is not. Corn mentions that front-line military personnel may have an incentive to over-detain, but by doing so they are imposing costs on their superiors, who will be aware of the perverse incentive and will try to do something about it. If the problem is agency slack within the military – the commanders cannot fully control the line officers — the notion that judges can fix the problem through due process review strikes me as far-fetched.

As this will have to be my final post, I want to thank our commentators and my co-author for their interesting remarks, and thank Roger Alford for hosting this event.

I’d like to steer the discussion toward the question of military detention for a moment.

Military detention has been and continues to be the subject of extensive litigation, and it therefore presents a series of occasions implicating the deference thesis. Eric and Adrian discuss the matter from several angles, including one that strikes me as particularly important: procedural safeguards (i.e., the mix of rights, procedures, and rules governing the process of determining whether a particular individual satisfies the substantive criteria for military detention).

In any fact-finding system, the applicable procedural safeguards reflect (even if only implicitly) an underlying judgment regarding the appropriate rates of false positives and negatives to be tolerated by that system, as well as a judgment regarding the mix of safeguards likely to produce such rates (all of which, of course, is but another way of stating the tradeoff thesis). From the perspective of the deference thesis, the question that arises is whether courts (or Congress) should second-guess executive determinations of the calibration most appropriate for military detention in the current security environment. Eric and Adrian note that the Supreme Court did precisely that in Hamdi, and they criticize the court for doing so (pp. 256-57). Because the question of procedural safeguards continues to be a point of special significance and sharp dispute, it seems to me that their argument on this point deserves close consideration.

As an initial matter, Eric and Adrian make clear that they concur in the need for a cost-benefit analysis regarding procedural safeguards in this context. They would leave that determination in the hands of the executive, however, in the absence of an explanation as to why judges will conduct a more accurate analysis. “One needs a theory,” they point out, “to explain why the government will weigh the relevant factors with systematic bias, as opposed to random error . . . .” (p. 256).

Hamdi does not offer such a theory (at least not expressly), and this prompts Eric and Adrian to identify and then critique an account that might explain the court’s approach: “One such theory . . . is that the government will just want to detain in perpetuity or convict before a military commission everyone the president alleges is an enemy combatant, so the procedural cost-benefit analysis will be distorted.” (Id.). They describe this account as “mystifying,” however, explaining that “[t]here is no reason to think that the executive would benefit from an excessive detention or conviction rate, or that political constraints would permit the executive to implement such a preference in any event.” (Id.) (emphasis added). Later on the same page they explain that the government has a strong interest in accurately sorting “real enemy combatants from those who are swept up in the fighting by mistake,” and that this interest involves the desire to “incapacitate and deter terrorists and attackers . . . .” (Id.)

If it were the case that the executive interest in detention were limited to the incapacitation of detainees themselves and the deterrence of others, I would find this to be a fairly persuasive line of argument. But it seems to me that the executive interest in detention goes beyond incapacitation and deterrence, encompassing also the powerful interest in gathering intelligence about al Qaeda and the like. In light of that interest, there is at least some reason to believe that the range of persons whom the government would like to detain might exceed the range of persons properly subject to detention pursuant to the traditional armed conflict rule relating to internment for the duration of hostilities. Put another way, the government’s interest in gathering intelligence may lead it to wish to detain (and then interrogate) persons whose detentions might be difficult to justify under conventional understandings of the scope of internment power.

Let’s assume this is so. So what? We need two additional premises before we can adopt this as a viable theory for why the executive might indeed preference an excessive rate of false positives in the detention process.

First, we need to assume that the government will not or cannot invoke intelligence-gathering, standing alone, as a detention predicate. That seems a safe assumption, actually, in light of the express language in Hamdi foreclosing that option (noted by Eric and Adrian at p. 254).

Second, we need an account that explains why heightened toleration for false positives might facilitate the intelligence-gathering interest. Is there such an account? Possibly so. Much of the information that would be most helpful in unwinding al Qaeda and comparable terrorist networks lies in the hands of individuals who might not easily be described as actual members of such groups, let alone individuals who engaged directly in hostile acts. Financiers, document forgers, and other components of the logistical back office for terror networks serve a critical function, and may be positioned to provide tremendously useful information about other parts of the network. Some such individuals can of course be categorized as sufficiently associated with a hostile force so as to justify detention even on a relatively strict reading of traditional detention criteria. Others, however, present a more difficult case. The weaker the procedural safeguards involved in the process of determining detention eligibility, however, the easier it becomes to finesse such distinctions (and the more intel-rich detainees in theory might come into long-term custody).

Certainly this account provides an explanation for the importation of “material support” concepts from domestic criminal law into the military detention context. Whether it also provides a plausible account for questioning executive decisions relating to procedural safeguards is less certain, but worth considering.

In Terror in the Balance, we put aside the view that there is an absolute moral prohibition on coercive interrogation necessary to save third-party lives. For one thing, we claimed, it is very hard to find moral philosophers who defend that view; most waffle, in the end, by adopting some variant of the view that there is a “catastrophe” exception to the moral prohibition, so that if enough lives are at stake a utilitarian override kicks in. Roger Alford, our gracious host, suggests (among other things) that we radically understate the appeal of absolutism. He points out that the McCain Amendment and various sources of international law create an absolute legal ban on “torture,” of which coercive interrogation is a subset.

But this point conflates the moral question with the legal question. There is no doubt that most people believe that coercive interrogation should be illegal, and indeed it is; but they also believe that it would be morally permissible or even obligatory for officials to torture, in some vaguely defined set of extreme circumstances, at least if those officials openly take responsibility for their actions and throw themselves on the mercy of juries and the public. McCain himself, in an article in Newsweek, wrote that torture should be illegal, but that in an “urgent” ticking time-bomb case “an interrogator might well try extreme measures to extract information that could save lives. Should he do so, and thereby save an American city or prevent another 9/11, authorities and the public would surely take this into account when judging his actions and recognize the extremely dire situation which he confronted.” In this, our guess is that McCain speaks for many Americans. (In the Pew Research Center poll that Roger links, “15 percent of respondents said that the use of torture against suspected terrorists in order to gain important information can often be justified, while 31 percent said it is sometimes justified, 17 percent said it is rarely justified and 32 percent said it’s never justified.” So despite the legal ban, 63 percent believe that torture is at least sometimes justifiable; we read this to mean morally justifiable.)

We label the view that McCain defends the OAF view — “Outlaw and Forgive” — and our objection to it is not that nobody holds it, but that it is bad in various ways: self-defeating, unstable, and socially undesirable. There is no need to repeat those points here. Conceptually, however, the undoubted legal prohibition on coercive interrogation does not show that anyone holds the absolutist moral view. Law and morality are not coterminous, in general or in the debate over coercive interrogation.

I agree that the concerns that Bobby Chesney identifies are real and important. There are no answers at the level of theory; the scope and level of deference must be worked out at the level of practical politics. In practice, as we have seen, the president (and presidents generally) press for maximal powers where they think they need them, subject to political constraints. President Bush has not argued that his commander-in-chief power gives him the right to dictate educational policy because such an argument is a loser politically as well as legally. The courts defer with respect to some actions and not others. Presidents often acquiesce when courts refuse to defer, but sometimes they put up varying levels of resistance—appealing up the chain, or jurisdiction-shopping until they get a better result, or exploiting loopholes, or buying for time, or in rare instances (FDR, Lincoln) disobeying or threatening to disobey judicial orders. Public and elite responses to the performance of the relevant actors gradually determines the practical limits on presidential, judicial, and congressional action. I’m afraid we don’t have anything illuminating to say about how boundaries should be determined in practice, or how context-specific deference ought to be.

But we do want to avoid the legalistic impulse to try to determine in advance what the rules should be. (Again, this is the impulse behind Ackerman’s Emergency Constitution.) There are obvious benefits from having rules stated in advance, but the rules/standards literature makes clear that there are costs as well. Emergencies are not like the revenue-generating behaviors that are regulated by the tax code. Because it is hard to anticipate the next emergency, rules determined today will inevitably be poorly suited to the emergency that occurs tomorrow. On balance, the unpredictability of emergencies argue in favor of general standards of conduct rather than rules.

On a somewhat related issue, some of the comments might give readers a misleading impression that we take a dichotomous view: that the choice is between presidential dictatorship or not, and we opt for the former. Bobby Chesney correctly notes that the real debate is about the proper location on a continuum. To pick silly numbers for clarity, suppose 0 is pure executive government, 100 is pure legislative government, and 50 is some mix of deference and congressional/judicial oversight. We do not argue for 0, nor does anyone argue for 100. To pick more silly numbers, suppose that on most issues in normal (non-emergency) times the system is at 50. During emergencies, it typically goes down to (say) 20. Some civil libertarians seem to argue for, say, 40 or even 60 during emergencies. We want to say that 20 seems right—or, more precisely, there is no reason for thinking that 20 is wrong. Civil libertarians make a series of arguments that 20 is too low—the panic argument, etc., as we noted earlier. In trying to refute these arguments, we are not committing ourselves to 0; we are committing ourselves to 20 for the duration of the emergency.

A complicating factor, which I referred to in an earlier post, is the existence of other trends—technological, cultural, geopolitical—that affect the optimal location on the continuum. So it may be that as weapons become cheaper, smaller, and more destructive, we will have to reconcile ourselves to a long-term decline from 50 to, say, 40. On the other hand, if foreign political extremism fades (as it has in the past, and will surely do again), the optimal point could rise from 50 to some higher number.

The post 9/11 debate on presidential power has, inevitably, been overshadowed by the actual performance of the current president. I say “inevitably” but the confusion between the president and the presidency has greatly limited the value of the academic discussion, which has been unfortunate.

Consider, as an abstract proposition, the claim, which could be made at any time in American history, that “Because President X did Y [something bad], the presidency should be deprived of the power to do Y.” Stated in this bald form, the proposition is obviously false. No one thinks that because President Johnson mismanaged the war in Vietnam, presidents should be deprived of the commander-in-chief power. Nor does anyone think that because President Bush’s subordinates mismanaged the response to the Katrina hurricane, the presidency should be deprived of (statutory) emergency-response powers. Presidents have caused countless diplomatic fiascos, but no one has said that for this reason the power to engage in diplomacy should be lodged in Congress or somewhere else.

Why not? The answer is that the presidency is an institution that is occupied by a succession of persons, and the proper structure of this institution is independent of who happens to occupy it during a particular term (unless you have an extremely short time horizon). Of course, the behavior of the individual in power provides some evidence of how that presidency’s power can be used and abused, but one needs to take account of the evidence of the behavior of earlier presidents as well.

It turns out that nearly all of our presidents have been pretty ordinary people. Very few geniuses (fewer still after the era of mass democracy began), and a lot of mediocrities, at least, if one uses the standards that are regularly applied to presidents by academics and journalists. But I don’t think anyone thinks that the case for presidential power rests on the premise that the occupants of the offices will be extraordinary people. (The popular books about the follies of the Bush administration have countless precedents for all earlier administrations.)

As the founders understood (oops!), power not given to the presidency must be given to some other institution, and so, to stick within the framework of the federal government, the real question is whether we want to give power to the mediocre president, the mediocrities in Congress, the mediocre supreme court justices, or (I suppose) the mediocre heads of agencies. Or we could let the “people” handle the terrorists themselves.

To focus our intuitions, then, let us imagine that all the members of Congress are little Bushes (as people like Kevin Heller imagine him) – ideologues in part, practical politicians in part, but (apparently) not very smart and morally fallible or repulsive or whatever. The point is to avoid loading the dice and imagining that everyone in Congress is a Henry Clay (funny how rarely one hears any mention of who belongs to the current crop of congressional geniuses).

The case for giving emergency power to the president rather than Congress rests on the simple point that a multi-member body cannot act quickly, decisively, and secretly. Once we reject the assumption that the members of Congress are likely to be smarter than the president, I don’t see how any other factor would play a role.

The conventional critique of our views is not that Bush is an idiot, so we must be wrong, but that if presidents are given too much power, they will trample on civil liberties, favor supporters at the expense of others, or become dictators. The Bush-is-an-idiot crew overlook the fact that by the standards of earlier presidents, Bush looks rather good.

With respect to civil liberties, the infringements have been trivial compared to, say, Lincoln and FDR, and either less than, or on par with, the infringements that occurred during the early cold war and the Vietnam war. The worst one can say about Bush is that he has turned the clock back to the 1960s, though ordinary criminal law enforcement remains largely unchanged.

With respect to favoring supporters, there is no doubt that Bush, like most presidents, has tried to favor his supporters, but little of this has translated into war-on-terror policy. The main complaint has been the distribution of war-on-terror related pork, but this is business as usual in any administration.

With respect to becoming a dictator, Bush has, as nearly everyone acknowledges, been rather ineffectual as president. Crucially, unlike many past presidents (including Lincoln (through his generals), of course, but also, say, Johnson and Nixon) Bush has not used his emergency power to harass political opponents and their supporters.

Finally, in terms of overall competence in the execution of the war-on-terror, the Bush administration has been reasonably successful. We know that al Qaeda and its affiliates and epigones remain dangerous, as they execute attacks on the soil of other nations like Britain and Spain. Yet no such attack has occurred in the United States in six years. The real question is whether the Bush administration could have obtained the same result with less aggressive actions. I don’t know the answer to this question but I don’t think anyone knows. One can point to bungled investigations, implausible legal claims, and troublesome prosecutions, but this is just how governments operate, how they have always operated, and not much different from previous administrations – fallible people operating in a fog make mistakes. The incompetence claims are, I think, largely unsupported, no doubt infected by frustration with the Bush administration’s many other failures, most prominent among them that of the initiation and execution of the war in Iraq.

Meanwhile, Congress’s historical record is hardly sterling. Congress, too, has trampled on civil liberties (think of the McCarthy era) and favored supporters of the party in power. True, Congress has not acted in dictatorial fashion (at least, not since the Reconstruction), but then, as I said, a multimember body can rarely be an effective dictator. The beef against Congress is that it is weak, and no one today wants to be led during an emergency by a weak political institution, unless the alternative is extremely horrible. And, finally, Congresses have enacted a great deal of idiotic legislation.

Congress’s particular advantage is generally thought to be that it is a more representative institution, and thus perhaps confers legitimacy on the government in the way that president cannot. This is at best arguable. Arguably also, a many-minds style argument can be made that Congress aggregates information better than the presidency does, though I am skeptical about this. The president has greater control over agencies, and greater access to agencies’ information; agency heads know that their political fates are intertwined with that of the president, not that of Congress or any particular member of Congress.

Whatever the case, these advantages are less important for security issues than for other issues. This being the case, there is little or no public support for rolling back presidential powers (though there is a great deal of public support for having a new president). The president is weak but the presidency is as powerful as ever. What this means is that our next president, be it Obama or Clinton or Giuliani or someone else, will most certainly build, or at least rest, on Bush’s legacy. If a Democrat wins the election, you might expect some meaningless symbolic acts (such as the replacement of Guantanamo Bay with a hidden prison in Afghanistan), but don’t expect any changes in presidential powers. No serious presidential candidate, Taft-like, campaigns on a platform of limited presidential powers because no such candidate could possibly win.

In a comment to an earlier post by Eric, Marty Lederman has very helpfully raised the issue of how history is relevant to our discussions. I think it is relevant in three different ways: as originalist evidence, as evidence of what is desirable institutional behavior, and as evidence of what is politically possible. After some brief thoughts on the first two, I want to focus on the third, and pose a question to Marty and the other commentators.

Some constitutional scholars take founding-era history as evidence of the original understanding of the constitutional allocation of national security powers. Eric and I are not originalists, and as Eric points out in his earlier post, it is particularly difficult to think that the original understanding is useful when the issue is how to allocate national security authority among the branches of government in 2007. Emergencies by their nature present unanticipated circumstances, and the framers’ conditions were so remote from our own that it is hard to see why we should try to settle these questions by poring over their writings. Moreover, as circumstances change over time, the relevant constitutional texts and framers’ discussions become more and more indeterminate, because the framers were not focused on the questions that are critical today.

To be sure, founding-era history might be a bit useful in the second way, as evidence of what is desirable institutional behavior during emergencies. Perhaps the weaknesses of the national government under the Articles of Confederation show that an alliance of states acting through a legislative council can’t handle a truly national security crisis. But no one alive today seriously proposes that anyway, so that information is of low value. However, as one moves through American history closer to the present, the value of history as information increases, and historical examples accumulate. Taking into account the Civil War, World Wars I and II, the early Cold War, and the post-9/11 period, there is some information about what the presidency, the Congress, and the courts ought to do during emergencies. As Marty said in a different comment, perhaps the accumulation of historical examples embodies a kind of “collective wisdom,” though this seems a bit ambitious and too Burkean for my taste. More soberly, it just gives some information about or evidence of relevant propositions, such as that there are cycles of deference to the executive during emergencies, that these cycles do not generally stick (civil liberties bounce back when the cycle has run its course), and that executive government during emergencies has brought us through several major crises, although with clear abuses along the way. This evidence is hardly conclusive, but it is something; and if we lack lots of other good evidence, it might be decisive.

But what I most want to emphasize is that history is also relevant in a third way, as showing what is politically possible (whether or not desirable) during emergencies. Ought implies can; those who want to say that Congress or the courts should be less deferential than they historically have been during emergencies need to show, first of all, that less deference is politically possible. I am not at all sure that this can be shown, or that it is true. The pressures that cause Congress and the courts to defer to the presidency during emergencies are powerful; there is a kind of inevitable logic to Justice Jackson’s observation in Korematsu that “courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.” This point generalizes beyond military orders and Korematsu. In an earlier post I brought up the recent action of the Democratic Congress in voting the administration further surveillance authority, despite the administration’s lack of credibility. If the executive is warning of terror attacks that might be prevented by changing a relevant legal rule, what else can legislators realistically do?

So my compound question to Marty and others is: could things have been different, in a realistic political sense rather than a logical sense? Can we identify an emergency in, say, the past century in which we can realistically imagine Congress or the courts being substantially less deferential than they actually were? Can we really imagine that the World War II Congress would not have ratified Roosevelt’s internment order, or that the Supreme Court could have decided Ex Parte Quirin differently than it did? Of course counterfactual claims are tricky, but implicit counterfactuals already underpin oft-heard claims that Congress or the courts should (and thus could) have acted differently in past emergencies. My suspicion is that the more deeply we understand the historical conditions in which institutions acted, the more we will think that great deference to the executive in America’s historical emergencies was politically inevitable. And if so, the many commentators (not necessarily those participating here) who suggest that Congress or the courts should have acted differently in the past may be whistling in the wind.

[Bobby Chesney is an Associate Professor at Wake Forest University School of Law, and the Chair of the AALS Section on National Security Law. He is the author of the forthcoming article Disaggregating Deference: The Judicial Power and Executive Branch Treaty Interpretations (Iowa Law Review 2007)]



As Adrian noted yesterday in his post “First-Order and Second-Order Judgments,” he and Eric state clearly in the book that “[t]he deference thesis does not hold that courts and legislators have no role at all.” The question thus is not whether the courts and Congress are to be disabled from checking the executive branch, but rather the extent to which their checking capacity will be limited. Significantly, Eric and Adrian concede that the extent to which deference should increase during emergencies “is always a hard question,” one that “depends on the scale and type of the emergency.” Having said that, however, they note that as a general proposition the pattern of past practice suggests “very great” levels of deference are given to the executive during emergencies, and they conclude that this pattern should be continued in the current climate of mass casualty terrorism threats.



I tend to agree with the comparative institutional-competence premises that undergird this theoretical framework, and accordingly I also agree that in many if not most security-related contexts a substantial degree of deference should indeed be afforded to executive branch judgments relating to security policy. But at the risk of jumping the gun on our subsequent discussions (I gather we are to focus on the theoretical framework for now, but will engage particular applications of the deference thesis soon enough), I want to articulate a trio of concerns that arise when one considers the practical operationalization of the substantial-deference precept.



My first concern has to do with boundaries. While some executive policies or actions relatively clearly fall within the category of security-related matters to which substantial deference would apply, the precise boundaries of that category are sufficiently uncertain to give me pause. Does the principle extend to some or all aspects of immigration policy, for example?



Perhaps the boundary concern can be set aside on the ground that, by definition, it fails to speak to core applications of the deference thesis. Even so, the very notion that there are distinctly marginal and core applications suggests that policies and actions to which the thesis might be applied vary by matters of degree in their relationship to security concerns. If that is correct, it seems to me that we should be wary of a one-size-fits-all approach to deference; the grounds for deferring may be stronger in some contexts than others, and as a result the degree of deference afforded arguably should be calibrated accordingly.



That brings me to my third concern, which has to do with the practical implementation of the deference concept (whether applied uniformly or on a sliding-scale). How precisely do we operationalize any commitment we might have to strong deference? Strong deference is not binding deference in this model, and thus it necessarily remains open for a judge to break with executive preferences in some particular cases. It is difficult, however, to put into words the triggering conditions under which it would be proper for a judge to do so. This does not mean that the strong-deference obligation has no bite, of course, but it does increase the probability that substantial deference will mean different things to different actors, or be implemented by them in different ways, even when confronted with comparable policies or actions. Indeed, something very much like that can be said with respect to the very muddled record associated with the implementation of the doctrine of judicial deference to executive branch treaty interpretations. I’ll try to say a bit more about this later in the week as we turn to the particular applications of the deference thesis that Eric and Adrian offer in the book itself.

Let me say a few general words about one of Lou’s points, as endorsed and restated by Marty in his comment: “First, the Framers had seen up close what can happen when too much “emergency” power is concentrated in the executive (short answer: it wasn’t pretty), and therefore established substantial checks (mostly structural, but, esp. in the Bill of Rights and laws of war, also substantive) to prevent that from happening here.”



I’d like to explain why we don’t say much about the founders in our book, which was not inadvertent.



The writings of the founders are interesting for what they say about their times. These writings also identify some of the basic problems, tensions, and tradeoffs of constitutionalism, though these are all commonplaces today. It is understandable that people continue to honor the founders, read their biographies, and (in academia) occasionally read their writings. The founders belong to a very select group of practical politicians who both thought intelligently about long-term issues of governmental structure and could write clearly about their ideas, and, of course, they managed to found a relatively humane (putting aside slavery) and advanced (ditto) constitutional order that lasted more than seventy years, or maybe more than 200 years, depending on how you think about the post-Civil War settlement. About few other politicians can one say something remotely similar. But the claim that their writings can provide useful guidance about presidential power today defies common sense. The founders wanted a stronger executive than had existed under the Articles of Confederation, but not an executive that was too strong, and they all had different ideas about what too strong or too weak meant. As guidance for today, where circumstances are unimaginably different to boot, this is worse than useless.



(Gary Lawson has written a paper called “Ordinary Powers in Extraordinary Times: Common Sense in Times of Crisis,” 87 Boston University Law Review (2007) (forthcoming), which argues that our theory is consistent with the original understanding. I don’t know whether he is right or not, but the more important point for present purposes is that it illustrates the chronic indeterminacy of arguments based on founding-era materials.)



This type of preoccupation with the founders and what they would do today, reminds me of a science fiction book that I read as a child, I think it was The Foundation Trilogy by Isaac Asimov. If I remember correctly (and I might not), the premise of this book was that a great statistician had founded a new republic, and, using his statistical skills, had predicted all of the problems it would face for many years into the future, and how these problems could be solved. So whenever the republic’s leaders faced a problem, they needed only to play the video that the founder had stashed away somewhere. (For a reason that escapes me, they couldn’t play the video or portions of it until a crisis was upon them.) I like to think that Asimov was teasing constitutional lawyers, biblical literalists, and others of this ilk (and it is the same ilk, in terms of habits of mind, I think) who believe that they can solve today’s problems by examining an ancient text written by an all-seeing author.



I realize that when one makes constitutional arguments to courts one needs to dress up one’s arguments with citations to the framers (though I find it extremely unlikely that any of these arguments have had any influence on courts in at least the last one hundred years). But I don’t understand why people would think this would be useful for academic debate. If academics on both sides of the issue could agree to debate the presidency, emergency powers, and the constitution without mentioning the framers, this alone would count as progress.

There is an issue that comes up repeatedly in discussions of national security law. Suppose we define “law” broadly to include the optimal allocation of institutional authority to establish and execute national security policy. On what grounds can academic commentators who lack expertise in national security policy argue for any particular allocation of such authority, in particular circumstances? If one is agnostic about the merits of first-order policies that one cannot judge, for want of expertise, how can one make a second-order argument that some institution is relatively more likely to make “good” national security policy? To know what counts as “good”, wouldn’t one have to judge the merits of first-order policies? In our book, Eric and I are agnostic about the merits of many national-security policies the executive has pursued during emergencies, in particular the post-9/11 emergency. But we urge the second-order claim that the executive does and should receive even more deference during emergencies than during normal times. Is this inconsistent? (Lou Fisher’s post can be read to suggest that it is).

On closer inspection, however, this looks like a pseudo-puzzle. In fact it is routine to make second-order judgments when, and indeed because, one cannot make first-order judgments. I may have no idea whether the diet prescribed by my Harvard-trained doctor is superior to that suggested by the diet guru Dr. Atkins; but I can make a coherent judgment to trust the former’s credentials and expertise over the latter’s. Where one cannot judge outputs or results, one can still judge inputs, such as training, resources and expertise. Moreover, it is often easier to make relative judgments than absolute ones. (How tall is the Sears Tower? I have no idea. But I am confident it is taller than the Washington Monument, whose height I do not know either). And the thesis we defend in our book is entirely relative: as one moves from normal times to emergencies, the executive’s comparative advantages increase and other institutions should shift more authority to the President. “The deference thesis does not hold that courts and legislators have no role at all. The view is that courts and legislators should be more deferential than they are during normal times; how much more deferential is always a hard question and depends on the scale and type of the emergency.” (Terror in the Balance, p. 6). Because it is so hard to know how much deference is correct, we plump for the historical level of deference, which has been very great during emergencies; those who would argue that the historical level has been too great have a kind of burden of proof.

Our particular second-order judgment about the relative benefits of shifting power to the executive during emergencies may be right, or wrong, on the merits. But there is nothing inconsistent in combining (1) agnosticism about first-order judgments of national security policy with (2) clear second-order judgments about relative institutional capacities. Indeed, to the extent (1) is correct, (2) is all the more pressing.

A crucial issue in this conversation is that of presidential motivation. Explicit or implicit claims about presidential motivations underpin many worries about increased deference to the executive in emergencies. Yes, the executive’s capacities may be impressive, but its motivations are suspect (the suggestion often runs). Thus Kevin Jon Heller suggests, en passant, that the executive’s motivation is to maximize its power. What to make of this suggestion, and of the general problem of distrust of the executive?

Of course, the “executive” is to some extent a they, not an it, although it is plausibly a more centralized and hierarchical institution than the American Congress, which displays fairly weak party discipline. To clear away this issue, let us focus on the President, ignoring that in practice the President is constrained by the need to coordinate many different executive officers, offices and institutions. What motivates Presidents? No single thing. Different presidents have different motivations, and whatever their motivations, they are constrained in various ways by political circumstances. In Chapter 1 of the book (pp. 53-57), we recount the cross-cutting motives that Presidents and other executive actors hold, including the desire for power, the converse desire to duck responsibility, the desire to advance preferred ideologies (which may or may not include executive aggrandizement), and even the desire for leisure time. Following an important paper by my colleague Daryl Levinson (“Empire-Building Government in Constitutional Law”, Harvard Law Review 2005), we doubt there is any sense in which power-maximization is the dominant presidential motive, let alone the sole one. Moreover, Presidents cannot always act on their motives; they are bound down by political and reputational constraints, such as the need to please both a political party and the median general-election voter (for first-term presidents) or to please the historians (for second-term presidents). Some presidents are power-maximizers, some are not, and power-maximizers may be constrained to act as if they were not, depending upon political circumstances.

What is true, as Heller’s post exemplifies, is that distrust of presidential motivations is a real obstacle to interbranch and bipartisan cooperation in the war on terror. In other wars, such as the Civil War and World War II, presidents used credibility-generating devices to enhance public trust; thus both Lincoln and Roosevelt placed members of the opposition political party in their war cabinets, and President Clinton made a moderate Republican his Secretary of Defense. The current Bush administration can very plausibly be faulted for failing to employ these and other institutional devices for generating credibility and trust (devices that Eric and I discuss at length in “The Credible Executive,” University of Chicago Law Review 2007). These devices have their costs – the price of generating credibility is that the President surrenders some control over policymaking to political competitors — but for a President like George W. Bush whose credibility is exceedingly thin, the benefits would be greater still.

All that said, however, we ought not overlook a positive point: in an uncertain security environment, legislators often have overwhelming incentives to transfer new powers even to a President with very little credibility. The Democratic Congress recently gave the administration a temporary enhancement of its surveillance authority, in part because the administration warned of an increased risk of terror attacks. The legislators’ political calculus seems to have been that even if the warnings could not be verified, and even if there was no reason to trust the administration’s claims, still the warnings might be true, and the political risks of rebuffing them were too great; what if an attack actually occurred and legislators were blamed for their inaction? Executive credibility is important, but it is not the only thing that is important. The circumstances of emergency politics will often produce legislative deference even to a noncredible executive in matters of national security.