Fear Itself: The New Deal and the Origins of Our Time
Much of the already voluminous commentary on the war on terrorism centers on the question of whether it is a war at all. These three books are willing to stipulate, with varying degrees of enthusiasm, that it is. They differ dramatically, however, over what tactics this war allows and, more broadly, what it means for governing within the limits of the U.S. Constitution. Richard Posner, the prolific circuit court judge and University of Chicago law professor, argues that civil liberties must "vary with the threat level" but that much of what the government is authorized to do under the Constitution "it should not do." To one side of Posner is John Yoo, the Berkeley law professor and former member of the Justice Department's Office of Legal Counsel who spearheaded the Bush administration's legal response to the September 11 attacks; Yoo holds that the strongest presidential claims to unilateral authority are correct and that the resulting policies have "crippled al Qaeda." Far to the other side is Joseph Margulies, a Northwestern University law professor and counsel for several men held at Guantánamo Bay (most prominently the British national Shafiq Rasul, who was released in 2004). Margulies condemns the Bush administration's policies and rejects the notion that war powers can be exercised without being "restrained by the rule of law." Together these books illuminate what the war on terrorism requires of both politicians and citizens -- and they tally very differently the costs and the benefits of the course chosen so far.
A LITTLE PRACTICAL WISDOM
Perhaps because of potential conflicts with his day job, Posner has eschewed constitutional interpretation and focused on policy in much of his work. In Not a Suicide Pact, an erudite, if sometimes breezy, book, he does the opposite, focusing on the protections granted by the Constitution; few, he concludes, are inalienable. He borrows his title from a dissenting opinion in a 1949 Supreme Court case, in which Justice Robert Jackson opposed the majority's decision to protect hate speech, warning that "if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." For Posner, constitutional rights are "especially plastic." They are shaped mainly by the Supreme Court justices' interpretation of the Constitution, and interpretations may change with context. National emergencies, for one thing, "may alter the scope of a right." For Posner, the potential link between terrorist organizations and weapons of mass destruction creates just such an emergency today. The situation calls for a "tailored regime" that ranks terrorism somewhere between war and crime and "that gives terrorist suspects fewer constitutional rights than people suspected of ordinary crimes, though not no rights."
Determining what rights exactly -- and how the tailored regime should be stitched together -- must involve a clearheaded, "instrumental" assessment of costs and benefits. Rights should be determined by balancing the interests of public safety and those of personal liberty. At the heart of Posner's analysis is the econometric concept of expected value: What is an outcome worth given the likelihood of its occurrence? (For example, a $1 lottery ticket with a one-in-a-million chance of winning $1 million has an expected value of $1.) Civil liberties, too, have a payoff, yet their benefits are sometimes speculative, and "probabilistic menaces" to public safety, however far in the future they may be realized, "must be weighed along with certain ones."
Posner is, in effect, reframing Justice Oliver Wendell Holmes' famous 1919 rule for limiting free speech when it presents "a clear and present danger" in order to deal with a clear and probable danger. The Supreme Court did as much in the 1951 case Dennis v. United States, upholding the government's right to ban speech that advocated the government's forceful overthrow. Posner gives the case surprisingly little treatment, but it is noteworthy: the Court rejected the plaintiffs' free-speech claims as subordinate to "other values and considerations" relating to the threat of communism. A majority of the Dennis court strongly endorsed the lower court's view that "in each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."
For Posner, the threat of terrorism today is grave and not improbable. He argues, therefore, that a reasonable interpretation of the Constitution allows for coercive interrogation "up to and including torture," prior restraint prohibiting the publication of documents (provided they are properly classified), bans on inflammatory speech (although he does not recommend these), and surveillance, including of the kind apparently now practiced without judicial warrant by the National Security Agency (NSA). Indeed, he writes, "the government could, in the present emergency, intercept all electronic communications inside or outside the United States, of citizens as well as of foreigners, without being deemed to violate the Fourth Amendment," provided that computers winnowed the data before human agents reviewed it. Posner's qualifications are important. Still, only habeas corpus, a prisoner's right to have a neutral court review the legality of his imprisonment, survives unconditionally in Posner's regime. This is a crucial exception in light of the Bush administration's repeated claims in court that judges have no authority to review the U.S. military's detention practices. But once the habeas corpus hurdle is cleared, indefinite detention would pass muster with Posner. And with the possibility of endless imprisonment without trial, Posner's objections to using the fruits of coercive interrogation or warrantless surveillance in criminal prosecutions are largely beside the point.
By its very nature, economic analysis rests heavily on one's calculations of options and odds, costs and benefits. Posner accuses civil libertarians of "one-sidedness," but by his own admission he weights security more heavily than liberty. Moreover, his selection of choices sometimes skews the outcome: Certainly, one would prefer to be surveilled than arrested, but are these really the only policy options? Still, as Posner points out, despite the difficulties in making calculations, judgments need to be made, "and there is no good alternative to making them pragmatically."
This begs another question: Who should make these judgments? Posner puts his money on market competition among the branches of government -- that is, the operation of checks and balances. Given a Congress with more institutional pride, he would be right. But Posner's claim that Congress "has not been a rubber stamp for the national security initiatives of the Bush administration" rests more on faith than on fact. His examples of congressional independence -- such as the "hornet's nest stirred up in Congress" over revelations of wiretapping by the NSA and over the renewal of the Patriot Act -- do not reflect actual legislative outcomes. In fact, the House of Representatives and the Senate had merely passed different versions of laws legalizing the NSA's policy, and the Patriot Act was renewed essentially unchanged. The Military Commissions Act of 2006, which authorizes the prosecution of unlawful enemy combatants before military commissions (and was passed after these books were written), paints legislators less as hornets than as mayflies.
All of this is fine by Yoo, since "the powers of war and peace" (as he wrote in a 2005 book) are largely vested in the president. Yoo sees no middle ground between "war" and "crime." Crime automatically activates wide procedural protections. And "because the Constitution's Bill of Rights establishes these rules," he argues, "they are not very flexible" -- an assertion that would presumably earn him a low grade from Professor Posner. But war, in turn, activates all sorts of executive powers, including over when and how to use force. This is a matter of historical practice: "Over time, the presidency has gained the leading role in war and national security because of its superior ability to take the initiative in response to emergencies." And it is a matter of definition: questions of national security are "quintessentially executive in nature," and so the Constitution implicitly vests authority over them in the commander in chief.
Yoo is therefore devoted to arguing that the war on terrorism is not about fighting crime; it is "a different kind of war" -- a war "by other means" -- which requires an adaptation of the traditional rules of war. One might not agree with Yoo that the attacks of September 11 alone activated the president's war powers. But Yoo is right to observe that Congress' September 2001 Authorization for Use of Military Force (AUMF), which was largely drafted by the White House, was a "declaration of war in purpose" with "no limitation on time and place." He also points out that the Supreme Court's 2004 decision in Hamdi v. Rumsfeld upheld the president's power under the AUMF to detain even U.S. citizens as enemy combatants, subject only to limited due process constraints.
So what might those "other means" include? Like Posner, Yoo thinks that broad warrantless surveillance, coercive interrogation, and indefinite detention (without habeas corpus rights, at least for aliens) are well within legal bounds. Like Posner, Yoo believes that such policies have clear benefits and that these outweigh the costs. But he rejects the notion that judges can or should monitor the system, because "there is no systematic, rational way to strike a balance between [the] competing values" of liberty and security. Having also sidelined Congress, Yoo effectively implies that the balance should be struck by executive fiat.
Yoo wants to assess tactics as well as codify them. He stresses that the legal opinions of the Office of Legal Counsel were meant to give policymakers broad guidelines without predetermining their options, but he does have strong policy preferences. Indeed, the goal of his book is to explain and defend the Bush administration's choices after 9/11. He hopes to correct the "confusion, exaggeration[s], [and] misinformed attack[s] on the government's policies." In fact, he argues, the Patriot Act -- the "most vilified and misunderstood piece of legislation to come out of the war on terrorism" -- "reasonably responds" to the needs of law enforcement. He claims to be an eyewitness to the "humane" treatment of detainees. Allegations that overly harsh interrogation techniques migrated from Guantánamo Bay to Abu Ghraib are "an exercise in hyperbole and partisan smear," he argues (although he fails to note the contemporaneous migration of General Geoffrey Miller, the commander of the detention center at Guantánamo Bay, who was asked to review prison interrogation procedures in Iraq, from one base to the other). Military commissions have been "fair" and "due process-rich." And it should be "clearly understood that neither [his own] August 2002 memo nor the Justice Department advocated or recommended torture." Hugely peeved by the Department of Justice's seeming retraction of that memo in late 2004, Yoo points out that "the differences in the opinions were for appearances' sake" and that "in the real world of interrogation policy nothing had changed." Overall, he concludes, "there has been no monarchic seizure of power by the President."
This is true. But it is true largely because it rebuts the straw men Yoo has erected on behalf of his critics. (Another example: Yoo slams those who "deny that the Constitution grants any role to the President in conducting war, foreign affairs, and national security policy." How many of those are there?) He deserves credit for making a strong case clearly, but his position on executive authority remains extreme -- or, as Posner puts it, "extravagant." In Yoo's view, not even congressional action (aside from funding cuts) may bind the president during wartime. No action seeking to curb the president's core powers can be enforced by either Congress or a court. The Foreign Intelligence Surveillance Act cannot limit presidentially ordered wiretapping in the name of gathering military intelligence. Nor can the 2005 Detainee Treatment Act's ban on torture be unqualified.
Yoo does not discuss his famous August 2002 memo in this context, but its contents are relevant. "Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield," it said. Thus, laws that "seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks" themselves "would be unconstitutional."
Yoo's long-term view is sanguine: "The President and Congress usually give up their emergency powers voluntarily, and if they don't, courts step in." But he saves much ire for courts that do just this, decrying, for example, the "judicial micromanagement" of the decision in Hamdan v. Rumsfeld, in which the Supreme Court, in his view, both misread the Detainee Treatment Act and misunderstood the proper scope of the president's wartime powers when it ruled that the Bush administration should not have set up military commissions to try Guantánamo detainees. Yoo even invokes the 1886 Supreme Court case Ex Parte Milligan in support of the executive's expansive rights: although the Court determined that Lambdin Milligan himself was not an enemy combatant subject to the jurisdiction of military courts, in so doing it held that such a category of combatants existed. Yet Yoo's view that judges should defer to executive judgment precludes just the kind of factual determination that the Milligan court made.
Such judicial deference is precisely what Margulies fears. He strongly takes issue with any conception of presidential power that "claims all the authority that could conceivably flow to the executive branch during a time of armed conflict, but accepts none of the restrictions." For Margulies, if the war on terrorism is a new type of war, it is one that requires more checks on executive power, not fewer. After all, this conflict lacks geographic boundaries and a clear endpoint (or even a way to determine one) and rests on fuzzy definitions of "enemy" and "ally." Under such circumstances, indefinite detention can readily become perpetual, and so the executive must meet a heavy burden of proof to show that it is detaining the right people.
To argue that the Bush administration has failed to meet this burden, Margulies interweaves the story of the first enemy-combatant cases (Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla) with examples of the U.S. government's treatment of detainees in earlier wars. Posner, and to some extent Yoo, argues in the abstract; Margulies, drawing on testimony from interrogators and prisoners, is painfully concrete. As a result, narratively and stylistically, his book is the most compelling of the three works. Margulies is right to call attention to the lack of executive accountability. Still, his main contribution is not his commentary on presidential powers, which mirrors much recent writing, nor his discussion of technical legal arguments, which may be closer calls than he concedes. But by highlighting the costs of detention and interrogation policies, he offers a starkly different calculation of their expected value.
Margulies argues that many of the men held at Guantánamo Bay -- whom former Secretary of Defense Donald Rumsfeld has called "among the most dangerous, best-trained, vicious killers on the face of the earth" -- have nothing to do with terrorism. The Pentagon's own data show, as Margulies puts it, that "only 8 percent of the prisoners at the base are even alleged to be al-Qaeda fighters." For Margulies, policy preferences predetermined legal positions. One glaringly mistaken result was the White House's decision in early 2002 to avoid holding status-determination hearings, as urged by the State Department at the time, and to designate all the men captured in Afghanistan as enemy combatants with no rights under the Geneva Conventions. Since only a small fraction of those people (perhaps 1 in 20) were captured by U.S. forces, there was little way to know their provenance or intelligence value. Aliens they were, but enemy aliens? Both wheat and chaff were sent to Guantánamo Bay. There, the detainees underwent treatment that Margulies charges was inhumane at best (he quotes prison-camp sources to suggest that officials like Yoo were treated to a staged "dog and pony show" when they visited). Other captives were turned over to countries with less sensitivity about torture. Even now, the meaning of "enemy combatant" is hopelessly vague and fluid, still defined by unchecked executive discretion.
Some people would argue that it is worth paying the cost of such tactics if they succeed in eliciting crucial information. But their efficacy is far from clear. Yoo and Margulies both detail the interrogation of the detainee Muhammad al-Qahtani and draw opposite conclusions about the severity of the treatment and the utility of the information it produced. Yoo justifies curbing Geneva Convention protections on the grounds that the "flagrant breach by one side of a bargain" -- such as al Qaeda's brutal methods -- "generally releases the other side from the obligation to observe its end of the bargain." But what if holding one's end of the bargain helps more than it hurts? Does the United States gain any strategic advantage by redefining the rules of war to its temporary advantage? What if such a redefinition hurts not just the individuals involved but also the chances for success of the wider war on terrorism?
Margulies notes the case of a U.S. officer court-martialed in the Philippines in 1900 for forcing local insurgents to ingest vast amounts of water during interrogation sessions, whose defense basically rested on Yoo's "flagrant breach" argument. The judge advocate general in that case held that "no modern State will admit for an instant" that "a belligerent who is at war with a savage or semi-civilized enemy may conduct his operations in violation of the rules of civilized war." During the Vietnam War, the U.S. government applied the Geneva Conventions to Vietcong combatants hiding among South Vietnamese civilians even though the North Vietnamese government refused to apply them to U.S. soldiers.
In a January 2002 memo to the White House, then Secretary of State Colin Powell argued that the Office of Legal Counsel had misrepresented the Bush administration's true options (as well as facts central to its legal conclusions). Not only does respecting the Geneva Conventions protect U.S. troops captured by the enemy, Powell argued, but it also "preserves U.S. credibility and moral authority by taking the high ground, and puts us in a better position to demand and receive international support." Yoo asks: "What president would put America's image in the United Nations above the protection of thousands of innocent civilian lives?" But he does not consider whether preserving America's image abroad itself might not help to protect those lives. For Margulies the answer is clear: "Guantánamo (and the claim of unlimited presidential power that it symbolizes) acted as a powerful wedge, driving the United States away from the Muslim world on whose behalf we claimed to wage this war, and from the Western democracies whose standard we claimed to bear."
Margulies sometimes mistakes editorial opinion for empirical evidence, but he nonetheless drives home the point that the expected value of a given policy must encompass expected values -- the values expected of what Ronald Reagan called, echoing John Winthrop, "this shining city on a hill." As President George W. Bush himself put it on September 20, 2001, "We are in a fight for our principles, and our first responsibility is to live by them."
For all the lip service paid to the difficult choices presented by the war on terrorism, however, President Bush's prescription may be the most difficult to follow. It is easier for legislators and voters to delegate powers to the president than to deliberate on their proper scope. It is easier to ban hateful speech than to defeat it in the marketplace of ideas. It is easier to torture evil people than to allow them to remain silent and defiant. And it is very hard to trust, as Senator John McCain (R-Ariz.) once put it, that "our greatest strength [is] that we are different and better than our enemies." Yet that is the only course that might prove, in Justice Jackson's formulation, both practical and wise.