Executive Power in the War on Terror

THE BUSH ADMINISTRATION'S legal performance in the war on terror is much like its performance in the war in Iraq. In both cases it had plausible objectives but employed mistaken, often counterproductive and occasionally foolish strategy. The Bush administration itself has admitted mistakes in Iraq. But it is also important to describe the errors in its legal strategy to which it has not yet admitted so that future administrations will not suffer similar defeats in the courts of law and the courts of public opinion. The errors in the Bush administration's legal strategy had common roots. One was an ideological focus on bolstering executive power and a consequent lack of pragmatic flexibility in choosing tactics that would maximize the chances of gaining public and judicial acceptance of its framework for detention, interrogation, and trial of terrorists as well as surveillance of individuals resident in America. The administration repeatedly failed to recognize that reliance on executive authority alone entailed a high risk of defeat at the hands of the Supreme Court. Second, the administration radically underestimated the magnitude of the risk that the Court would curb the president's discretion, because it misunderstood the changed legal environment for litigation in the twenty-first century. Every aspect of American life has been increasingly subject to court-made rules. As a result of this trend, even discretion in the war on terror would likely be seen through the prism of legalism that applies to domestic criminal law. Moreover, foreign elites, particularly European elites, would seek to influence our judiciary so as to tie down what they regard as a dangerous hegemon. The third systematic error was a failure to recognize that all administrations tend to lose power as they age, and wars run a high risk of exacerbating that loss as they become progressively less popular. Of course, the scandals at Abu Ghraib and the more general lack of success in Iraq could not have been predicted. But an administration's legal high command--and here I speak particularly of the White House counsel and attorney general and not of mid-level attorneys on their staffs or those simply defending the policies in court--must choose strategies that take account of the worst possible outcomes. As a result, the administration would have been well advised to take every step to bolster its legal position as early as practicable. It could have secured from Congress framework legislation for detention, military tribunals, surveillance, and perhaps even interrogation. Because citizens are generally most supportive of an administration at the beginning of a conflict (a phenomenon so well known among political scientists that is has been given the name "rally around the flag effect"), the terms of trade between the administration and Congress would likely have been favorable, even when the Senate was controlled briefly by the Democrats in late 2001 and 2002, not to mention in 2003 when Republicans took over both chambers and the United States was still savoring victory in Iraq. To be sure, nothing is certain in the legislative process, and deals would have had to be struck, but it seems almost certain the administration early on could have obtained legislation that would have met its strategic objectives. In this regard, the introduction of the Patriot Act is the paradigm the administration should have followed. It received overwhelming support in Congress for the new powers it sought. Its provisions have withstood judicial challenge, and the consensus support of the people's representatives has made its harsh critics seem politically isolated. The consequences of eschewing Congress and relying on judicial vindication of executive power in court have been grave. Far from strengthening executive power, the administration's policies generated a series of Supreme Court defeats that have weakened it. These losses have contributed to a public perception that its policy for dealing with captured terrorists is in disarray and, still worse, that the United States is trenching on liberties as never before, when the reality is that the war in Iraq and the war on terror reduced domestic liberties less than earlier wars and even prisoners charged as war criminals had greater protections at trial than those charged previously. …