by Sam Kleiner, a law student at Yale Law School and member of the ACS Yale Law School Chapter.
In his widely-noted speech at the Oxford Union, Harold Koh (pictured) invited us to imagine a different response to September 11. It's easy to think that the path taken by the Bush administration was driven by a pre-destined sense of necessity, and Koh's invocation of a President Gore (a timely counter-factual with Justice Sandra Day O'Connor's musings on that election and the Supreme Court’s involvement), offers an alternative/hypothetical response in the time-tested law enforcement approach.
At Lawfare, Ben Wittes defends the Bush administration’s record as oriented on a law enforcement approach. Koh argued that the Obama administration's approach "combined a Law of War approach with Law Enforcement and other approaches to bring all available tools to bear against Al Qaeda" and Wittes countered that this description fit the Bush administration's approach.
Contrary to Wittes’ attempt to frame the Bush administration as focused on law enforcement, President Bush specifically rejected this approach and attacked candidate John Kerry for suggesting this path forward. In 2004, when Kerry emphasized his background as a prosecutor and urged that terrorism be considered through a law enforcement lens until it became a "nuisance," Bush attacked him vehemently. Kerry argued for an approach that was, "less of a military operation and far more of an intelligence-gathering law enforcement operation." Bush responded: "I disagree -- strongly disagree. … After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. With those attacks, the terrorists and their supporters declared war on the United States of America, and war is what they got." Wittes boasts of a more restrained argument from the Bush administration and he cites a 2006 speech by John Bellinger and a Bush administration brief filed in Boumediene (after losing hugely in Rasul, Hamdi and Hamdan), of a more restrained vision of the war on terrorism. Bush did move away from the GWOT framing in his second term largely because he had been thwarted by the courts and Congress. What Koh invites us to ponder - and Wittes fails to comprehend - is that you could have had a response to 9/11 that started with a deeply powerful law and order framework rather than heading down the rabbit hole by making outlandish claims of unilateral executive power that threatened constitutional order. By 2006, it was too little too late.
While it isn't clear from Wittes piece if he favors this law enforcement approach, his favorable remark in that direction indicates a huge departure from his work in Law and the Long War and the intellectual roots of Lawfare itself. Wittes advocated in his 2008 book for "a Constitution for the war on terrorism" that would emphasize military commissions to "avoid seepage of legal doctrines devised for terrorism into domains that already have coherent bodies of law of their own." Wittes was concerned that the U.S. might over-regulate detainee treatment at Guantanamo and warned about the consequences "if the rules for detention at places like Guantanamo that are outside of the theater of combat become too stringent." Rather than fitting our response to September 11 into our existing legal order, Wittes was arguing that we should refit our legal order to the response that was deemed necessary. Mark Shulman distilled the book’s argument in his measured review as an assertion that our “eighteenth-century Constitution is unfit for meeting the terrorist threat.” Wittes saw law as a tool of war, rather than as a constraint on how we should approach terrorism. Of course that logic is central to the whole thesis of why Wittes named his blog “Lawfare.” The term is meant to frame the issue as “the use of law as a weapon of conflict.” In his update to that definition in the Harvard National Security Journal, Wittes defended the term 'lawfare' against claims of biasing the debate.
As part of the legal construct for the war on terrorism, OLC lawyers such as John Yoo relied on claims of the president's unenumerated powers. In the September 2001 OLC memo, Yoo cautioned against an interpretation of Article II that focuses on the enumerated powers that would "limit ‘executive Power’ granted in the Vesting Clause to the powers on that list." Instead, he argued that "the President's powers include inherent executive powers that are unenumerated in the Constitution." This is a crucial distinction that Wittes fails to understand when he accuses Koh of simply continuing on with the Bush-era invocation. While Wittes' book doesn't discuss the claim of unenumerated executive power, it is important. For while Koh, and Obama administration lawyers, have invoked Article II powers they have based their claims in the enumerated powers of the President (as supplemented by the Authorization for Use of Military Force (AUMF) and other Congressional action).
Wittes accuses Koh of having "discovered inherent Presidential powers," only recently in arguing that Obama can take action to transfer detainees out of Guantanamo but he is either trying to make an argument by being snide or defies a plain reading of Koh's seminal book, the National Security Constitution. Koh recently argued that Obama is not meaningfully constrained by the National Defense Authorization Act (NDAA) appropriations limitation on moving detainees out of Guantanamo and urged Obama to invoke "the President’s authority as commander-in- chief to regulate the movement of law-of-war detainees, as diplomat-in-chief to arrange diplomatic transfers, and as prosecutor-in-chief to determine who should be prosecuted and where." While we can critique Obama for failing to take that action, Koh did not 'discover' this argument last week. In 1990, Koh discussed the appropriations limitations on executive power and Lovett v U.S. He argued that "the President [is] free to challenge future limitations on executive branch actions as unconstitutional exercises of Congress's power of the purse." Wittes may disagree with Koh's interpretation of Lovett, but it is silly or just snide to suggest that Koh is somehow 'discovering' Article II.
Some of Lawfare's writers, Wittes as well as Goldsmith and Bellinger, have been arguing that there is abiding continuity of counter-terrorism practices (if not rhetoric) between the 43rd and 44th presidents. While there undoubtedly is some overlap, as would be expected between successive administrations, the similarities have been exaggerated in an attempt to rehabilitate the policies of the Bush administration. Koh invited us to consider the counter-factual of what a response to September 11 from President Gore. Doing so allows us to consider a different pathway, one undoubtedly different from the kind of approach that Bush adopted and pundits such as Wittes largely supported. And while President Gore would have made his own mistakes, I doubt that they would have included torture, extraordinary renditions, secret detention facilities that enabled the government to disappear innocent and guilty alike.
They can seek comfort in trying to argue that Obama, and his lawyers hypocritically continued Bush-era counter terrorism policies, but the reality is that the legal infrastructure for the war on terror looks very different today. And we are all better off for it.