by Darren A. Wheeler. New York: Palgrave Macmillan, 2008. 209pp. Cloth $74.95. ISBN: 9780230603691.
Reviewed by Bruce E. Altschuler, Department of Political Science, SUNY Oswego. Email: bruce.altschuler [at] oswego.edu.
Writing that “perhaps the most vivid example” of the Bush administration’s expanded claims of presidential power was the detention of suspected terrorists and the methods proposed to try them, Darren Wheeler examines four Supreme Court cases limiting these powers that were decided in 2004 and 2006. He argues that the conventional portrayal of these rulings as rebuking President Bush’s detainee policy is contradicted by the administration’s ability to implement policy in ways that allowed the executive branch to retain control. These events are used to ask how two different concepts of presidential power – Richard Neustadt’s plural executive whose power comes from the ability to persuade and the competing view stressing unilateral powers – apply to Bush’s response. The substance of the book consists of chapters examining each ruling and its implementation, followed by a concluding chapter analyzing the competing theories of presidential power in light of these cases. There are also useful secondary discussions of such topics as writs of habeas corpus and criminal versus military approaches to terrorism suspects.
Although the consistent misspelling of Sandra Day O’Connor’s surname as “O’Conner,” even in the index, and Judge Rosemary Pooler’s three times as “Pool” gives pause about the quality of the analysis, the book does a very good job of clearly explaining the complexities of each of these cases, as well as the lower courts’ attempts to interpret them as other detainees sought to assert their rights. Even more informative is the analysis of how the administration was able to assert compliance without substantially changing its policies. For example, even though HAMDI v. RUMSFELD (2004) was widely viewed as a setback for the administration because it ruled that detainees were entitled to a degree of due process, the Court agreed that Hamdi could be detained as an “enemy combatant,” a term they chose not to define, at least until hostilities in Afghanistan ended and that whatever due process rights he was entitled to could fall considerably short of those of criminal defendants. The administration then established Combat Status Review Tribunals (CSRT) that seemed to have elements of due process. Detainees were presumed innocent unless the government proved by a preponderance of the evidence that they met the criteria of enemy combatants, had a right to be present at hearings, were given an interpreter and a personal representative, could call “reasonably available” witnesses and present evidence in their favor before a panel consisting of one military judge and two other officers. These protections, however, provided so few actual rights that approximately a third of detainees declined to participate. [*275] Because personal representatives were not attorneys, conversations with them were not privileged. Only a few spoke at the hearings, and some who did so made comments that harmed their clients. Personal representatives could see classified evidence but were forbidden from discussing any with clients. The government did not produce a single witness in any hearing, while supplying documentary evidence in only five percent of them. All detainee requests for witnesses not physically present at Guantanamo were denied, with even three-quarters of requests for testimony from other detainees turned down. When one panel unanimously ruled in favor of a detainee, it was instructed to rehear the case with the government providing additional evidence. Wheeler reasonably concludes that, while the Supreme Court may have rejected the most extreme claims of executive power, it agreed to enough of the administration’s interpretation to allow the president largely to prevail. The results suggest that “a determined president, using unilateral powers, can dominate the judicial implementation process,” even when the court’s decision is widely viewed as a defeat (p.51).
However, the ruling against the administration’s military commissions in HAMDAN v. RUMSFELD (2006) forced Bush to seek congressional approval for a new system of tribunals. Despite early resistance in the Senate, including such Republicans as John McCain and Lindsay Graham, the resulting Military Commissions Act (MCA) was so close to the commissions rejected by the Supreme Court, partly based on a lack of congressional authorization, that the president did not even feel the need to express reservations in a signing statement. Bush’s ability to persuade congressional critics would seem to support Neustadt’s model. Nevertheless, Wheeler believes that he used unilateral actions where possible to preserve his control over detainee policy.
Wheeler’s conclusion that the unilateral model better explains the administration’s actions, than does the plural model, is hardly surprising in the area of national security policy. Had he examined domestic issues, he might have found different results. More interestingly, he argues that the Bush approach to “use unilateral powers first, and then work with others,” violates Phillip Cooper’s rule not to overuse such powers in order to avoid eclipsing the policy role of other actors (p.151). He does note dissent within the administration, particularly from the Office of Legal Counsel. When the complete records are eventually released, it will be interesting to discover the full extent of disagreement within the administration.
Wheeler also observes that, unlike past military conflicts, in these decisions, the Supreme Court “has not been overly deferential to the president in matters of detainee policy” (p.147). However, he believes that the administration’s quick responses to Supreme Court setbacks allowed it to dominate the implementation process. Had it acted more slowly, lower courts would have played a larger role. His analysis would have benefitted from a discussion of Gerald Rosenberg’s THE HOLLOW HOPE. Rosenberg argues that courts are hampered in achieving change by the limited nature of constitutional rights, limits on judicial independence and the [*276] inability of judges to develop policy and implement decisions. At the very least, change requires political and popular support. The polls cited by Wheeler demonstrate that there was no such popular support for the expansion of the rights of detainees. Nor, as the passage of the MCA illustrated, was the Republican controlled Congress likely to provide opposition to its party’s president despite the reservations of a number of senators. Rosenberg’s constraints seem as applicable to the Bush detainee decisions as they were to questions of social change twenty years ago. In contrast, when President Obama sought unilaterally to bring Guantanamo prisoners to the United States for trial, overwhelming opposition in congress and among the public forced him to retreat. Instead, he has reluctantly reinstituted military tribunals, albeit with more rights for defendants than the Bush administration had granted.
For those unfamiliar with these four detainee cases, PRESIDENTIAL POWER IN ACTION is an excellent introduction. It explains the complex issues clearly while showing how limited the impact of these seemingly strong rulings were. This also makes it useful for those interested in the implementation of Supreme Court decisions. Its theoretical conclusions are likely to be of less interest, especially since they are based entirely on a single administration. How much of Bush’s use of unilateral power is due to his administration’s adherence to the theory of a unitary executive which states, as Stephen Skowronek has written, that by vesting the executive power in a single person, the Constitution grants “expansive authority and exclusive responsibility” against intrusions by the other branches? Would an administration with a less expansive theory of presidential power not be as reliant on unilateral action?
Unfortunately, any book about such a topical subject is likely to be quickly overtaken by events. For example, Wheeler’s analysis of habeas corpus notes that the MCA provision limiting court jurisdiction had not yet been reviewed by the Supreme Court although it had accepted two cases. In 2008, at about the time the book was published, the Supreme Court ruled this part of the MCA unconstitutional in the case of BOUMEDIENE v. BUSH. However, in April 2011 it proved more deferential to the president (Barack Obama, of course), by declining to review three cases seeking to establish what the appropriate standards for review should be. Since BOUMEDIENE, all ten appeals brought by detainees have been declined by the Supreme Court. Now that President Obama has decided to implement new rules for military tribunals, which will soon begin trials at Guantanamo, it will be interesting to see how deferential the Supreme Court is to the executive.
Skowronek, Stephen. June 2009. “The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive.” HARVARD LAW REVIEW 122 (8): 2071-2103.
Rosenberg, Gerald N. 1993. THE HOLLOW HOPE. Chicago: University of Chicago Press. [*277]
BOUMEDIENE v. BUSH, 553 U.S. 723 (2008).
HAMDAN v. RUMSFELD, 548 U.S. 557 (2006).
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).
© Copyright 2011 by the author, Bruce E. Altschuler.