by Howard Ball. Lawrence: University Press of Kansas, 2007. 320pp. Cloth. $34.95. ISBN: 9780700615292.

Reviewed by Graham G. Dodds, Department of Political Science, Concordia University. g.dodds[at]concordia.ca.


“It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings.” – Sandra Day O’Connor, 2006 (p.1).

Whatever its other merits may be, George W. Bush’s tenure as president has been a great boon for scholars of presidential power, constitutionalism, and public law. Long forgotten court cases have been rediscovered, and dusty tomes on presidential war powers now have new currency, as fundamental constitutional arrangements and legal protections that had once seemed secure are called into question, from the writ of habeas corpus and the Geneva Conventions to checks and balances and separation of powers. But of course the increased relevance of and demand for the work of many legal scholars has come at an enormous cost. For Howard Ball (prolific author and professor of law at Vermont Law School and University Scholar and professor emeritus of political science at the University of Vermont), that cost may be nothing less than the rule of law, the US constitutional order, and even representative government itself.

In BUSH, THE DETAINEES, AND THE CONSTITUTION, Ball examines the Bush Administration’s treatment of detainees in “the war on terror,” as it has been promulgated, challenged, tested, and grudgingly modified from shortly after September 11, 2001 through 2007. Ball’s specific focus is on the “enemy combatants” in orange jumpsuits who are imprisoned in Guantanamo Bay, Cuba, America’s “gulag” (pp.61, 72). But Ball’s book is more than just a narrow legal analysis of the detainment of suspected terrorists. Indeed, the book’s subtitle – “The Battle over Presidential Power in the War on Terror” – suggests its broader thrust. This is a book about executive excess and how the constitutional system can (or cannot) respond to it.

After a brief Introduction, Ball provides an overview of the topic and his general argument in Chapter One. According to Ball, prior to the war on terror, the US had generally adhered to domestic and international laws “regarding the classification, status determination, treatment, and disposition of captured enemy combatants” (p.45). That changed when Bush and senior Administration officials decided to imprison suspected terrorists and to deny them the standard protections. Ball’s book essentially examines how this came to be and what it means. He sees the Bush Administration’s treatment of detainees, and its disinclination to submit to the other branches and to change course, as amounting to what Clinton [*100] Rossiter called “constitutional dictatorship” (p.34)

In Chapter Two, Ball traces the use of the term “enemy combatant” from World War II-era obiter dicta to Bush’s decision to treat all Al Queda and Taliban suspects as unlawful enemy combatants and to subject them to trial by military commissions. Chapter Three describes the treatment of people caught and detained according to this policy and the related controversies about the governmental use of torture.

In Chapter Four, Ball recounts the belated entry into this matter by another branch of government, the judiciary. He describes the appeals to federal courts by detained suspected enemy combatants and discusses three crucial cases that the Supreme Court decided in 2004: RASUL & ODAH, HAMDI, and PADILLA. There were ten opinions in the three cases, but their cumulative impact was to curtail Bush’s actions in the war on terror, as the justices said that “foreign aliens and American citizens held as enemy combatants could petition federal courts for habeas grants to challenge their detentions” (p.125). This marked a significant check on the president, but it constituted only “Round One” (p.87) in what would be a protracted inter-branch struggle, and Ball contends that “the justices knew that they were merely scratching the surface of the controversial legal issues” (p.127).

In Chapter Five, Ball describes the impact of the 2004 decisions on Bush’s detainee policy. According to Ball, the Administration sought “to outflank and, at best, minimally comply” with the Court (p.124). Thus, the Department of Defense created administrative review boards that limited the ability of detainees to contest their detention via habeas appeals, the Department of Justice cut a deal with Hamdi whereby he was freed after agreeing to renounce his US citizenship and be deported to Saudi Arabia, and Bush ordered the transfer of Padilla from Guantanamo to the control of the Attorney General in order to face a new federal criminal indictment.

But this resistance was countered by the Supreme Court in June, 2006, when it issued a dramatic 5-3 ruling against the Bush Administration in HAMDAN. There were six opinions in Hamdan, but the Court essentially rejected Donald Rumsfeld’s plan to try Osama bin Laden’s chauffeur and bodyguard before a special military commission rather than a traditional court-martial. Moreover, it said that the Geneva Conventions applied. According to Ball, Hamdan was an ideological rebuke that called attention to the necessity of checks and balances and separation of powers. It left the president, vice-president, and other top Administration officials “stunned and angered” (p.171).

Ball describes the last major development in this saga in Chapter Six, titled “Bush Trumps the U.S. Supreme Court.” Here Ball is chiefly concerned with the Military Commissions Act (MCA), which Congress passed in October, 2006, largely at the behest of the Bush Administration. According to Ball, it virtually overturned HAMDAN and turned longstanding habeas practices upside down, leading to “the death of habeas rights” for hundreds of prisoners (p.183). The book concludes with a brief Epilogue and several [*101] appendices with the relevant international conventions, congressional statutes, and presidential orders.

As the above description indicates, BUSH, THE DETAINEES, AND THE CONSTITUTION covers a lot of ground. And it is very well documented: Ball’s analysis is interspersed with page after page of extensive, unedited excerpts from oral arguments, briefs, and opinions, as well as some 530 footnotes. Indeed, very little is left out of Ball’s discussion. There is even some mention of the related but distinct controversies about warrantless NSA wiretaps, rendition, CIA Black Sites, and torture at Bagram (Afghanistan) and Abu Ghraib (Iraq).

Scholars, journalists, and well informed citizens likely now know the roles in this sordid drama that have been played by George W. Bush, Dick Cheney, Donald Rumsfeld, Paul Wolfowitz, Roberto Gonzalez, Theodore Olson, Paul Clement, and even John Yoo and David Addington, but Ball’s account also describes the actions of Robert Delahunty, William Haynes II, Jay Bybee, Stephen Cambone, Stephen Bradbury, and numerous other administration officials in articulating and defending Bush’s policies. And there is also passing reference to lonely Administration dissenters, like Colin Powell, William Taft IV, and Matthew Waxman, whose concerns were altogether ignored.

Ball’s book amounts to a damning indictment of the Bush Administration and its prosecution of “the war on terror.” Even for a jaded observer of the past seven years, it is virtually impossible to read Ball’s book and not emerge with renewed incredulity and indignation. Ball’s tone is scholarly but not always even-handed, such that the excesses of Bush Administration officials are emphasized. For example, he calls Bush a frequent liar (p.81) and “obdurate” (p.128), and he speaks of the president’s “chutzpah” (p.85), “incompetence” (p.35), “arrogant behavior,” and “feckless actions” (p.197). But if Ball’s judgments are harsh, they are well supported. And of course he is not alone in his criticism. Indeed, one suspects that even a staunch defender of the Bush Administration might have difficulty rendering some of the actions discussed here in a more favorable light.

And it is not just the President and his apologists who fare poorly here. Ball is also critical of the other two branches’ late and limited resistance to the excesses of the Executive, such that the reader may be as appalled the by the feeble Congress as by the unbridled Executive. Ball alternately calls the 2000-2006 Republican Congresses “somnambulant” (p.139) and “dormant” (p.177), or “acquiescent” (p.10), “bullied” (p.177), and easily manipulated. After all, it was Congress that gave the president so much authority for extraordinary unilateral action via the Authorization for Use of Military Force (AUMF) in 2001, the Detainee Treatment Act (DTA) in 2005, and the MCA in 2006. Ball indicates that things changed with the Democratic electoral victories in 2006, but he suggests that the newly Democratic Congress has underperformed, despite promises of investigations and new legislation to expose and thwart the president’s policies. [*102]

And even the Courts come in for some criticism, too. Ball says that the number and nature of the 2004 decisions left many things unclear and unresolved, perhaps unnecessarily so. He also notes that even some of the more critical justices were at times strangely reluctant to grant cert. Still, in the end, Ball credits the judiciary and Congress for checking the excess of the Executive: “Were it not for the U.S. Supreme Court and the 2006 midterm elections, this story’s ending would have been very different – much more dreadful than the one told in this book” (p.5).

Ball’s comprehensive treatment and sensitivity to the broader constitutional and political context are perhaps the book’s chief merits, but those merits may be at the cost of some comprehensibility. It is at times difficult to disentangle the relations among the many people, executive actions (e.g., executive orders, executive memoranda, signing statements, invocation of state secrets, and the like), acts of Congress, court cases, and treaties and conventions that are discussed. However, this difficulty may well be an unavoidable feature of the subject, as there are a lot of pieces in this puzzle. For example, as Ball notes, there was a virtual “blizzard of memos circulated for most of 2002 among high-level politicians and lawyers in the executive branch” about detainment (p.89).

While Ball’s book provides an excellent analytic overview of the detainee issue and its broader implications, it may soon need to be updated. In the next few months, the Supreme Court will issue decisions in two key detainee cases for which it heard oral arguments in late 2007 that question the constitutionality of the MCA: AL ODAH and BOUMEDIENE. Other cases will certainly work their way through the judiciary as well. But Ball is aware that this story is still ongoing: in the Epilogue, he predicts that more conflicts are coming, and he titles the book’s penultimate subsection “Back to the Supreme Court in 2008? You Bet!” (p.194).

This book may well become the single authoritative account of the Guantanamo detainees and their impact on the struggle between presidential power and constitutional limits. It will appeal to a variety of scholars and is suitable for a variety of academic courses.

Rossiter, Clinton. 1948. CONSTITUTIONAL DICTATORSHIP. Princeton: Princeton University Press.

AL ODAH v. U.S. (06-1196) and BOUMEDIENE v. BUSH (06-1195), consolidated, Oral argument: December 5, 2007.

HAMDAN v. RUMSFELD, 126 S. Ct. 2749 (2006).

HAMDI v. RUMSFELD, 542 U.S. 507 (2004).

RUMSFELD v. PADILLA, 542 U.S. 426 (2004).

RASUL v. BUSH and AL ODAH v. U.S. (consolidated), 542 U.S. 466 (2004).

© Copyright 2008 by the author, Graham G. Dodds.