The Legacy of the Crash

by Terrence Casey

  Before Obama took office, former Vice President Cheney averred that the new president would ‘appreciate’ the expansions of executive power achieved during the Bush administration and ‘not likely … cede that authority back to the Congress’ (quoted in Bolton, 2008, p. A1). Despite eschewing Bush’s ‘inherent’ powers doctrine and proposing ‘conversations’ with Congress on new legislation, many of Obama’s actions have not confounded Cheney’s prediction. Indeed, the revisions to US torture and interrogation policy instigated by Obama were implemented unilaterally by executive order, without congressional statute or approval, thereby allowing Obama or a successor to overturn the new policies by another executive order written by the same president or one of his successors. Obama also did not abandon all claims to exert other unilateral powers and, indeed, when he subsequently did so he typically invoked the same foundational legislation as Bush, chiefly the 2001 use of force resolution, which Congress made no effort to repeal or amend. Thus, Attorney General Holder justified the killing of Osama bin Laden ‘as an act of national self-defense’ consistent with Congress’ 2001 use of force resolution that authorized the president ‘to use all necessary and appropriate force’ against those involved in the 9/11 attacks (Williams, 2011; see also Rollins, 2011).

  While Obama promised to close Guantánamo and renounced the Bush administration’s ‘enemy combatant’ label for designating terrorist suspects, it soon became clear that he would pursue policies that were similar to those of the Bush administration. When suspected terrorists held in detention sought habeas corpus relief pursuant to the 2008 Boumediene decision,1 Obama’s Justice Department filed legal memoranda in the US District Court of the District of Columbia holding to the Bush administration’s position that the president had the unilateral authority (based on the 2001 use of force resolution) to detain terrorist suspects indefinitely without criminal charges or habeas corpus rights, even when they were detained outside a traditional ‘battlefield’ (Center for Constitutional Rights, 2009). The new administration would use the same law-of-war principles as its predecessor in a further 200 cases (Glaberson, 2009) pending an administration task force’s comprehensive review of detention policy.

  It was not long before liberals in Congress controlled by his own party objected to Obama’s continuation of Bush administration detention policy. They proposed new detainment legislation that became the subject of House and Senate hearings held in June and July 2009. At the same time, however – and much more significant politically – a growing groundswell of public and congressional opposition developed toward Obama’s proposals to close Guantánamo, create a new system of preventive detention and transfer 50 or so of the more than 200 terrorist suspects remaining at Guantánamo to the US for trial.2 Five months into the new administration, this groundswell produced a 90–6 Senate vote in favor of an amendment to a fiscal year (FY) 2009 supplemental appropriations bill that specifically prohibited the administration from using any monies to fund the transfer, release, or incarceration of any Guantánamo detainees in the US. The House took similar action in July 2009. When Attorney General Eric Holder proposed prosecution of the alleged 9/11 perpetrators in a New York court, the public backlash intensified so that in December 2010 Obama was forced to sign a defense authorization bill that included strict new limits on transferring of Guantánamo detainees for trial in the civil courts, the purchase or construction of any facility within the US to house them, and on their transfer to third countries without the Defense Secretary confirming the safety of doing so.

  Despite Obama committing himself to working with Congress to ‘develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution’ (Obama, 2009c), no new legislation was requested by the administration and Congress failed to take any autonomous action. Meanwhile, the administration continued to petition the courts to deny habeas corpus rights to terrorist detainees and to move suspects around the world beyond the reach of the US Constitution in order to enforce indefinite detention. Effectively, both the Obama administration and Congress absolved responsibility for enacting new preventive detention legislation – with the consequence that unilateral discretion over detainees remained with the administration without judicial oversight. Faced by suits filed by individual detainees, the courts could only rule on a case-by-case basis, with the result that law and policy became contradictory and incoherent. De facto, detainee policy rested with the judicial discretion of the US District Court in Washington, DC, to whom Congress had delegated responsibility for ruling on detainee cases. Judge Thomas F. Hogan of the Court complained in late 2009 that his fellow judges hearing detainee cases were essentially in the business of creating ‘different rules and procedures … different rules of evidence … [and] substantive law’ (quoted in Denniston, 2009). Even civil liberties groups were content with this ad hoc approach (Finn 2009a, p. A1), fearing legislation even more detrimental to the rule of law. Indeed, requesting new legislation from Congress was politically fraught, for it would require legislators to repeal or at least amend the 2001 congressional use of force resolution in order to confine the president’s discretion, which most legislators would not want. Such was public, media and congressional hostility to detainees being tried in civil courts that such a course also risked congressional enactment of an indefinite detention law that would not be limited by wartime conditions and, therefore, have serious implications for civil liberties in peacetime.

  An immediate consequence of legislative inaction was that 20 terrorist suspects, whom the courts had ordered to be released from Guantánamo after eight years’ detention, were subsequently obliged to remain at the facility because of the congressional prohibition on them entering the US and the inability of the administration to find them suitable homes in other countries. Finally, in March 2011, the combination of congressional and public opposition and Obama’s unwillingness to expend further political capital in the run-up to his re-election bid reconciled him to the reality of the legislative impasse, the defeat of his policy, and exclusive reliance on unilateral presidential action. He signed a new executive order resuming the Bush administration’s trials by military commissions and maintaining indefinite detention for the remaining detainees at Guantánamo. ‘Congress has been AWOL’, complained South Carolina Republican Senator Lindsey Graham, ‘We’ve done a lot of demagoguing, but we haven’t provided any solutions’ (Starks and Stern, 2011, p. 622).

  Not only did Obama maintain the Bush administration’s policy of indefinite detainment unmitigated by congressional statute, his Justice Department invoked the same ‘state secrets’ doctrine in order to shut down court suits to Bush administration detentions involving allegations of extraordinary rendition, torture and suppressing evidence. Obama promised to support new state secrets legislation proposed by leading liberal Democrats, which sought to require a federal judge to examine disputed evidence in such trials rather than dismiss a case outright based solely on the government’s assertion that disclosure would endanger national security. The administration resiled from that position and opted for new Justice Department rules for invoking the state secrets privilege. Again, however, as with detainee policy, discretion would rest with the executive rather than a court interpreting a congressional statute so that Obama or one of his successors could reverse the rules. Moreover, Holder’s new rules did not include the most significant part of the proposed congressional legislation, which would require a formal court review to determine whether a court case would result in ‘significant harm’ to national security if it proceeded. Indeed, even as Holder published the new guidelines, within weeks of Obama’s inauguration the Justice Department went to court to dismiss lawsuits relating to President Bush’s extraordinary rendition program on the same basis as the Bush administration, that they threatened US national security (Schwartz, 2009, p. A1).

  Still, the new administration did not confine its invocation of state secrets to extraordinary rendition. Obama also followed Bush in u
sing warrantless wiretapping by the National Security Agency (NSA) to intercept American citizens’ communications and then invoking state secrets to dismiss suits against this illegal activity. In April 2009, the New York Times disclosed that the NSA had exceeded the leeway provided by the 2008 Foreign Intelligence Surveillance Act (FISA) Amendments by continuing warrantless wiretaps, even though a few months earlier the Justice Department had informed House and Senate Intelligence and Judiciary Committees of these illegal activities and given assurances that they had been ‘reined in’. Skeptical Congress members doubted that the ‘overcollection of data’ was inadvertent, but doubted whether their committees had sufficient technical expertise to conduct effective oversight in this highly sensitive policy area (Risen and Lichtblau, 2009, p. A1). The federal courts were less equivocal. First, administration officials, including the director of the NSA, refused to cooperate ‘because’, a federal judge wrote in al-Haramain Islamic Foundation Inc. v. Bush (May 2009), ‘they assert, plaintiffs’ attorneys do not “need to know” the information that the [Northern District of California] court has determined they do need to know’ (Johnson, 2009, p. A1). In other words, the Obama administration adopted the same hubristic view as its predecessor: the court had no right whatsoever to rule on the legality of the program because plaintiffs could not prove they were subjected to the secret eavesdropping (and thus lacked standing to sue) and in any event the NSA program was such a vital ‘state secret’ that courts were barred from adjudicating its legality. Ten months later, the same court completely rejected those arguments. Dismissing what it called the government’s ‘impressive display of argumentative acrobatics’, the court not only confirmed the illegality of the NSA’s surveillance program but also castigated the Obama administration for attempting to place itself above the law. The state secrets doctrine amounted to ‘unfettered executive-branch discretion’ that had ‘obvious potential for governmental abuse and overreaching’. The FISA law passed by the Congress in 2008 trumps the administration’s state secrets claim (Savage and Risen, 2010, p. A1).

  On torture and interrogation policy, the Obama administration also insisted on administration discretion untrammeled by new congressional legislation. During nomination hearings before the Senate, Obama’s nominee for CIA Director asserted the agency’s need for discretion and refused to rule out using torture or extraordinary rendition; he would, however, keep the Congress better apprised of the CIA’s activities (Mazzetti, 2009, p. A1) and be governed by more restrictive rules than his predecessors, consistent with Obama’s January 2009 executive orders. Although leading Congress members proposed new anti-torture legislation and various committee hearings were convened following disclosure of documents providing evidence of ‘unauthorized, improvised, inhumane, and undocumented’ interrogation methods by (often untrained) CIA officers and contractors on detainees (Finn et al., 2009, p. A1), Congress refused to write any new legislation that either brought past crimes and practices to book or refined existing statutory policy to reflect new strictures contained in Obama’s executive orders. As with detainee policy, Congress’ refusal to act meant that Obama or his successors could undo policy he had made by executive order. Moreover, notwithstanding Obama signing an executive order permitting interrogation methods included in the US Army Field Manual on interrogation, when Congress included new provisions in its FY2010 intelligence authorization legislation requiring videotaping of CIA interrogations in Iraq and requiring information on covert intelligent activity to be given to the entire House and Senate Intelligence Committees, Obama threatened a veto on the grounds that Congress was seeking to intrude on the president’s national security prerogatives. Ultimately, the legislation required disclosure of covert activities but with the caveat that the president need not oblige Congress if he asserts in writing that doing so would harm US national security (Mulero and Starks, 2010, p. 2295).

  Finally, President Obama significantly escalated and intensified the military campaign against the Taliban in Afghanistan and Pakistan – as Bush would likely have done – and strongly committed his administration to international efforts against al Qaeda and other terrorist networks. A month after taking office, the president announced that US combat troops in the Afghanistan/Pakistan theater would increase to 68,000 and unambiguously committed the US to preventing the return of a Taliban government and to enhancing Afghanistan’s ‘military, governance and economic capacity’. Obama also continued the Bush administration’s policy of extrajudicial targeting and killing of al Qaeda leaders, culminating in US Navy SEALs’ killing of Osama bin Laden in May 2011. Following the Senate Select Committee on Intelligence’s disclosure in 1975 that the CIA had been involved in several murders or attempted murders of foreign leaders, in 1976, President Gerald Ford signed an executive order banning political assassinations abroad. Every succeeding president until George W. Bush renewed that order, although it did not prevent the Clinton administration from targeting bin Laden in Afghanistan. Obama too did not renew the prohibition and followed Bush in targeting al Qaeda leaders, often by unmanned drones. Notwithstanding acting as judge, jury and executioner, the president proudly announced to a jubilant nation, ‘justice has been done’ at least according to his interpretation of US law.3

  As US casualties rose and opinion polls showed declining support for US military involvement in Afghanistan, the Democratic Congress put down markers requiring the president to submit a report assessing the extent to which the Afghan and Pakistani governments were ‘demonstrating the necessary commitment, capability, conduct and unity of purpose to warrant the continuation [of administration policy]’ (US Congress, House of Representatives, Committee on Appropriations, 2009, p. 68). Months later, Congress insisted on integrating funding for the wars in Iraq and Afghanistan into the annual defense appropriations bill for the first time since 2001 and cut the administration’s Afghanistan Security Forces Fund request. Even so, three months after receiving a warning from the US theater commander in September 2009 of a ‘serious and deteriorating’ situation in Afghanistan and Pakistan and a request for a significant increase in US troops, Obama deployed an additional 30,000 US troops and was forced to delay troop withdrawal until 2014. Despite the US public increasingly disapproving Obama’s handling of the war, despite total war costs exceeding those for the post-2003 Iraq war and occupation, and despite public support for the president’s congressional party declining, as in previous wars, fear of the consequences of a precipitous withdrawal of US troops persuaded Congress to continue its support (Fisher, 2000; Peterson, 1994, p. 217). With public support for the military campaign in Afghanistan remaining weak, however, the killing of bin Laden apparently provided the president with the necessary catalyst to announce in June 2011 that ‘we have put al Qaeda on a path to defeat’, the ‘tide of war is receding’, and 33,000 US troops would be withdrawn by September 2012.

  Although Obama has adopted a less presidentialist style, a more respectful tone in his dealings with the Congress, and a greater willingness to engage in conversations with Congress (Owens, 2011), his administration has pursued almost identical (albeit more nuanced) ‘war on terror’ policies, and used more or less all the powers demanded and exercised by the Bush administration. That is, although the tone of presidentialism has softened, its substance has continued – and not without a little pedantry.4 Undoubtedly, Congress has challenged and in some cases checked the Obama administration but such challenges and checks have been rare, and specifically on the closure of Guantánamo, Congress effectively resisted taking the discretion away from the president. In short, ten years after 9/11, the contours of counterterrorism policy and the balance of power between Congress and the president remain those set by the Bush administration. Owens (2008) suggested that the combination of George W. Bush’s presidentialism, the 9/11 atrocities and the administration’s so-called ‘war on terror’ may have provided the ‘flip-over dynamics’ in the evolution of the US’s constitutional order towards the further consolidation of
executive government. That analysis further suggested that even if a Democrat won the presidency, the transformation would endure – as long as the permanent ‘war’ itself endured. Ackerman (1999, pp. 2334–45) suggested a ten-year test. From the perspective of 2011, it seems the flip-over has endured.

  Cameron, Coalition government, and counterterrorism policy

  Post-9/11, Parliament has created new powers for the executive that increased the British government’s power vis-à-vis Parliament. While this has had important consequences for executive–legislative relations, the power gain incurred significant costs. Most evident was the protracted demise of Tony Blair’s political capital over Iraq; despite the prime minister’s concessions to Parliament, such as granting the parliamentary liaison committee greater access to the prime minister and giving MPs the right to vote on war with Iraq, he overcommitted. As over US extraordinary rendition practices, Parliament’s police patrol oversight of Britain’s involvement in Iraq was exposed as weak. Nevertheless, MPs sometimes raised parliamentary fire alarms, most notably against 90-day detention of terrorist suspects without charge under Section 41 of the 2000 Terrorism Act. Indeed, the parliamentary revolt that resulted contributed to Blair’s decision to resign his premiership and led his successor to concede the need for greater balance between Parliament and the government, albeit in language that granted the government sufficient latitude to perpetuate the executive’s de facto anti-terrorism powers.5

  At first glance, it appears that much changed under the Conservative– Liberal Democrat Coalition, which formed the new government after the 2010 general election. The government allowed, for example, detention without charge to lapse from 28 to 14 days, scrapped the ID card scheme, and removed control orders. These shifts in policy, however, did not represent major rollbacks of Britain’s counterterrorism state, nor were they the products of greater or more effective legislative scrutiny per se. Inasmuch as they occurred, they were the products of political compromise within the coalition and events conspiring to undo the best-laid plans.