Reading Ben’s Book

First, thanks to all for the great opening posts, and more broadly to Chris, Peggy, and the whole Opinio Juris crew for welcoming me into the fold. I’m delighted to join such a dynamic forum, and very much look forward to our exchanges ahead.

Ben suggests as a central topic to kick of this week’s discussion a broad structural question: “Does anyone think the optimal environment for executive prosecution of the war on terror (or whatever you want to call it) involves, for example, having no legislative guidance regarding whom to detain or under what rules?” Well, setting aside the whole “is it a ‘war’ on terror” question for a moment, no one I know thinks Congress has no role to play in U.S. counterterrorism law and policy. Or, with fewer negatives: Yes of course, Congress has an important role to play. I’d also wholeheartedly agree that Congress has acquitted itself rather poorly so far, remaining AWOL on critical questions of detention, interrogation, etc. long after it had become clear (for example) that this administration had some pretty radical views, both on the scope of its own power, and on what makes for effective national security policy. We’ll disagree, Ben, about what exactly Congress should do with its power, but if your book’s primary point is this structural one – no issues there. Indeed, I can’t think of anyone I’ve encountered (human rights advocate or no) who’d disagree.

Which brings me, at the risk of a digression but in response to another question I’ve heard Ben ask – why don’t more human rights advocates embrace this book? – to the first broad concern that made me stumble in reading this book more than once. That is, I also haven’t encountered anyone who argues (as you write on p. 130) that we should supplant the “unchecked inherent powers of the president” with the “unchecked inherent powers of the judiciary.” I likewise don’t think the justices of the Supreme Court think they’re asserting “divine rights” to exercise jurisdiction over executive actions. (p. 16) Perhaps it’s my own parochialism, but neither have I met any international humanitarian law scholars who view the law in their field as a “moral absolute.” (p.3) And I don’t know many who would characterize the 2002 “Torture Memo” (asserting inherent executive authority to override criminal anti-torture laws) as merely offending “contemporary civil libertarian sensibilities” (pp. 50-51) – particularly given the memo’s public repudiation by almost all conservative legal scholars (not to mention the administration itself). The lawyers I know – left, right, center – mostly just call that memo (when they’re being generous) wrong on the law. Could be my own skewed perspective as one of the (former, at least) human rights advocates who come in for such criticism throughout the book, but felt to me, Ben, like there were a heck of a lot of straw men to fight before I got to the actual battle.

As for the merits of Ben’s general view of the role of the courts, my problem wasn’t entirely dissimilar. The key chapter is remarkable for the vigor of its claims about the limits of the courts’ utility, given the rather broad role I take it in the end Ben sees for the courts in, for example, questions of detention. To me, there was a pretty big disconnect between the general principle and the policy prescription – a disconnect that I suspect also contributes to the reasons why the book has not been embraced by as many as Ben might wish. In challenging the argument that courts must have some power of review if only to make sure the executive’s behavior conforms to law, Ben seems to champion two main objections: (1) the courts aren’t competent to weigh in on matters of national security/war; and (2) there’s something about war that’s just not amenable to legal regulation (and for that reason, among others, the international law of war just isn’t real law).

I’ll skip for now point (1), since I’ve written a fair bit elsewhere about why I disagree with standard critiques of judicial competence in the security realm. See here, here, and (much more) here.

Point (2) is rather more stark: “International conflict resists the principled application of legal rules of the sort that judges are, at their best, adept at managing…. [W]e don’t mean quite the same thing by ‘law’ here as we do in civilian contexts.” (p. 117) How so? Ben suggests two ways: (a) “the principles are fuzzier” and rife with exceptions, and (b) we all think hypocrisy in the application of law when it comes to security is ok. That is, I take it, its ok when the good guys violate the law of armed conflict (or general laws that bear on armed conflict), but not when the bad guys do.

This is a pretty fundamental claim indeed – I think probably too fundamental to succeed, even on Ben’s terms. On the objection to fuzzy principles and exceptions to seemingly absolute rights, I’m inclined to say: welcome to the wonderful world of law interpretation. I’ve always thought few passages of legal text fuzzier than, say, “due process of law,” yet not many folks would dismiss the Constitution as not real “law.” How qualitatively different, after all, is “cruel, inhuman or degrading treatment,” from “cruel and unusual punishment” as a matter of interpretation? Neither is the existence of exceptions unique to the law of war in this regard (see, e.g., the exigency exception to the Fourth Amendment warrant requirement, and many, many more). I’m just not clear how the uncertain meaning of broad legal standards distinguishes the law of war from a vast array of existing domestic constitutional and statutory legal instruments.

That leaves the purported tolerance of hypocrisy in matters of law and war; as Ben rehearses, Lincoln flouted the Supreme Court’s ruling on habeas, but he is broadly understood as one of the greatest Presidents in U.S. history. This could be an important claim, depending on exactly what Ben means. If the claim is simply that law has been violated in wartime in the past, so we should just expect as much as a regular matter, then I’m not sure it gets us anywhere. Laws against murder have been violated in peacetime in the past. That doesn’t mean there shouldn’t be laws against murder. It also doesn’t mean laws against murder are any less law-like than laws against, say, tax evasion.

More likely, Ben’s intending to make a more normative claim. As he puts it at one point: “When judges oversee wartime executive action, they err in both directions – both by interfering with arguably necessary ugliness…and by blessing the most unholy of excesses.” (p. 121) We’ll get to questions of what’s necessary later in the week. For now, the thing is, based on examples I suspect Ben himself would embrace, judges have also gotten it right in both directions in wartime – by, for example, creating incentives for the executive to release detainees wrongly held, or by falling back on interpretive canons of constitutional avoidance (or the like) to give the political branches a chance to write more specific rules reflecting more modest assertions of power. So where does this leave us? As best I can tell, only with the far more modest, and unremarkable, proposition (circa page 128) that judges should play some important, but not exclusive, role in checking executive power. Yup, that sounds about right, too.

Am I being way too facile here, folks? Or is there something more than endorsing the general separation of powers it’s possible to say these opening chapters had in mind?