The Unreviewable Executive: Kiyemba, Maqaleh, and the Obama Administration
Vladeck, Stephen I., Constitutional Commentary
If Lord Acton was correct that power corrupts, (1) then it should come as no surprise that presidential power tends to corrupt presidents. Especially in light of the current and ongoing threat that transnational terrorism poses to our national security, there are insufficient incentives for presidents of any political stripe voluntarily to accept--let alone champion--constraints on their authority in the name of individual rights. I don't mean to condone this reality, of course, but merely to observe at the outset how unsurprising it is that the Obama Administration has continued many of the more controversial counterterrorism programs begun or expanded during the tenure of President George W. Bush, including initiatives heavily criticized by then-Senator Obama during his presidential campaign. (2)
From military commissions to governmental secrecy, from the detentions at Guantanamo, Bagram, and elsewhere to the increasing use of UAVs to attack--and kill--terrorism suspects around the world, one could fairly draw a number of descriptive comparisons between the national security policies of the forty-fourth U.S. President and those of the forty-third. What's more, such comparisons have increasingly provided fodder for critics at both ends of the political spectrum; an ever-growing number of conservative commentators have found the similarities hypocritical, and just as many liberal observers seem to be taking the analogous nature of the measures as a deeply disheartening reinforcement of the status quo.
My own view, for whatever little it's worth, is that many of the descriptive similarities at the policy level are superficial, and belie far more fundamental distinctions at the constitutional level, where the current administration is far less wedded to claims of unilateral (and indefeasible) presidential power than its predecessors. Thus, the Obama Administration has all-but abandoned one of the hallmark arguments of the Bush Administration--that the President has inherent power under the Commander-in-Chief Clause of Article II (3) to take measures he deems appropriate during wartime, and that congressional attempts to constrain that authority, to the extent they even apply, are unconstitutional. (4)
To similar effect, the current Administration has embraced, rather than objected to, arguments that international law (and international humanitarian law, in particular) have a significant role to play in circumscribing the scope of the President's authority to detain terrorism suspects--and even try them before military commissions. (5) Thus, in al-Bihani v. Obama, in which the D.C. Circuit controversially concluded that the President's statutory detention authority is not meaningfully constrained by the laws of war, (6) the majority's conclusion to that effect went, as Judge Williams charitably described in his concurrence, "well beyond what even the government ha[d] argued." (7)
And although the current Administration has, like its predecessors, vigorously defended the scope of the state secrets privilege, and has challenged a pair of Ninth Circuit decisions taking a more nuanced (and less deferential) approach to executive claims thereto, (8) it has not challenged on constitutional grounds proposed legislation that would circumscribe the privilege--an objection that the Bush Administration raised repeatedly. (9)
To be sure, these distinctions have tended not to produce different results in individual cases. Thus, the current Administration continues vigorously to defend on the merits the detention of those non-citizens still in custody at Guantanamo Bay, just as it continues to defend its authority to try certain of the detainees before military commissions. In addition, thanks to statutes like the Military Commissions Acts of 2006 (10) and 2009, (11) the FISA Amendments Act of 2008, (12) and others, vanishingly few areas remain in contemporary counterterrorism policy in which the President is operating in the face of clear congressional constraints. …