Executive Power in a War without End: Goldsmith, the Erosion of Executive Authority on Detention, and the End of the War on Terror

By Hodgkinson, Sandra L. | Case Western Reserve Journal of International Law, Fall 2012 | Go to article overview

Executive Power in a War without End: Goldsmith, the Erosion of Executive Authority on Detention, and the End of the War on Terror


Hodgkinson, Sandra L., Case Western Reserve Journal of International Law


Abstract

The post-9/11 world has provided an excellent environment to examine the reach of presidential power and the constraints placed upon it by Congress and the courts. Professor Jack Goldsmith argues that controversial Bush-era detention practices were "altered and blessed" by the Congress and courts "in ways that Barack Obama--seized of the responsibilities of the presidency--found impossible to resist." If there was such a "blessing," it was clearly in disguise. Notwithstanding, this piece largely endorses Jack Goldsmith's principal theory in his recent book Power and Constraint, and offers several other reasons for the erosion of executive authority in the area of detention issues. It also addresses this author's view that the War on Terror is not a "War Without End" at all, thereby limiting the executive's supposed "indefinite" ability to detain enemy combatants.

CONTENTS

I. JACK GOLDSMITH'S ACCOUNTABLE PRESIDENCY

II. ERODING EXECUTIVE AUTHORITY THROUGH THE NATIONAL
SECURITY STAFFING PROCESS

III. THE "WAR ON TERROR" IS NOT A "WAR WITHOUT END"

IV. CONCLUSION

The post-9/11 world and our War on Terror have provided an excellent backdrop to examine the breadth and scope of presidential power and the degree to which the Constitution, external influences, and constraints within the executive branch restrain this authority. Professor Jack Goldsmith describes the role that Congress and the courts played in ultimately paving the way for President Obama to endorse previously controversial Bush-era detention practices in his new book Power and Constraint. (1) He argues that "Congress and [the] courts pushed back harder against the presidency than in previous wars, in the process vetting, altering and ultimately blessing [President Bush's] core counterterrorism policies." (2) Goldsmith claims that by 2009 the policies had been "altered and blessed in ways that Barack Obama--seized of the responsibilities of the presidency--found impossible to resist." (3) Having held a front-row seat on this issue inside of the government during the challenging years from 2004-2009 and through the initial transition to President Obama's team, if there was a "blessing," it was clearly in disguise. This short piece will largely endorse Jack Goldsmith's principal theory and offer several other reasons for this erosion of executive authority in the specific area of detention issues. It will also address this author's view that the War on Terror is not a "War Without End" at all, thereby limiting the executive's supposed "indefinite" ability to detain enemy combatants.

I. Jack Goldsmith's Accountable Presidency

Professor Goldsmith's new book Power and Constraint presents excellent insights into the extremely powerful role Congress and the courts played in shaping President Bush's detention policies from 2004-2009. The book also helps to explain how Guantanamo Bay remains open today. Two very different Presidential hopefuls, Senators John McCain and Barack Obama, both agreed in the 2008 election that it was imperative to our national security that we close the detention facility at Guantanamo Bay. (4) Yet, even after the 2012 election, Guantanamo Bay is not only open, but more durable than ever.

Under Goldsmith's theory, Congress and the courts shaped and ultimately "blessed" these policies into something that President Obama could endorse. This author would argue the Supreme Court's blessings came in a round-about way; however, with every ruling against the Bush Administration on detention policy, there was some element of the policy the Court quietly endorsed.

For example, in the early seminal detention case of Hamdi v. Rumsfeld, the Supreme Court determined that Hamdi, a U.S. citizen, had the right to challenge his enemy-combatant status before a neutral decision-maker. (5) In the Court's opinion, Justice O'Connor suggested that the proceedings used to determine status for prisoners of war set in the Army Field Manual (6) would have been sufficient in this case to satisfy this requirement.

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