Comparative Institutional Analysis and Detainee Legal Policies: Democracy as a Friction, Not a Fiction

I. INTRODUCTION When the development of legal policies regarding detainees during the war on terror is viewed uncritically, it is easy to understand the cynicism surrounding it. Although U.S. officials have asserted that these detentions were ultimately necessary for the preservation of democracy, legal pronouncements often seemed far more hegemonic.1 Indeed, in the immediate aftermath of 9/11, the system of checks-and-balances appeared to have been overdrawn by the executive, and neither the legislature nor the judiciary was eager to immediately intervene to limit the perceived presidential overreach.2 When the Supreme Court finally did, its efforts were viewed by some as attempts to seize authority vested by the Constitution in the President or legislature.3 The issue of detentions during the war on terror quickly spiraled into "only one more episode in the never-ending tension between the President exercising executive authority . . . and the Constitution," which "embodies some sort of system of checks and balances."4 The problem was, though, that no one within the government seemed to be sorting out precisely what sort of checks and balances system was necessary. In light of these institutional tensions, it is no wonder that some have questioned whether the three branches of government even shared the same end-goal of preserving democracy.5 Arguably, however, this institutional friction is as much an example of what is right with a constitutional democracy as it is of what is wrong with it. Created in this case by the exigencies of war, this tension often arises when the Constitution does not explicitly delegate to any one branch exclusive authority to act, and consequently each branch assumes that it must intervene in order to preserve fundamental rights.6 The trouble is that "[a] society intent on achieving the highest liberty for all runs smack into a basic institutional quandary: liberty requires both protection by the government and protection from the government."7 This problem and the concomitant challenge of "deciding who decides"8 - particularly as pertaining to detainee issues during the war on terror - is the focus of this Comment. Admittedly, the study of institutional choice is not novel,9 nor are more general inquiries into which branch of government has the institutional competency to address particular vexing questions.10 But, as explained more fully below, existing scholarship has failed to provide comprehensive answers regarding how and when power ought to be allocated between, and exercised by, the government's three branches.11 For the most part, these failings have occurred because the executive, legislature, and judiciary are too often viewed as simplistic, frictionless institutions.12 In recognition of this shortfall, Neil Komesar, a prominent law and public policy scholar, has proposed a novel analytic approach to examine institutions comparatively and determine when intervention by one branch over another would offer a superior outcome.13 Though Komesar's focus has not been directed specifically on the war on terror, his theory nevertheless provides a potential resolution to the issues surrounding the institutional tensions that have arisen within that context. This Comment thus explores institutional frictions and the development of legal policies related to detainee issues within the framework of Komesar's comparative institutional analysis theory. In order to understand the value of comparative institutional analysis, Part II discusses previous attempts to determine "who decides" and explains why these theories have failed to fully resolve the problem of how and when decision-making power should be allocated to any specific branch of government. Part III explains Komesar's comparative institutional analysis theory, and highlights ways in which this approach fills the gaps left by previous theories. Part IV applies Komesar's theory to the institutional frictions that arose as detainee policies were created by the U. …