Vol. 32 No. 9 (October 2022) pp. 110-112 COURTS AT WAR: EXECUTIVE POWER, JUDICIAL INTERVENTION, AND ENEMY COMBATANT POLICIES SINCE 9/11.
by Gregory Burnep. Lawrence: University Press of Kansas, 2021. pp. 243. Hardcover: $40.00. ISBN: 9780700630479.
Reviewed by Chris Edelson. Department of Government. American University. Email: edelson@american.edu. *
In the early days and months after the 9/11 terrorist attacks, many Americans put their faith in the president to keep them safe. President George W. Bush’s approval ratings skyrocketed. Vice President Dick Cheney declared that “9/11 changed everything”, and the Bush-Cheney administration moved to stamp its imprimatur on the face of new national security policies in areas including detention and trial of suspected terrorists, warrantless surveillance, extraordinary rendition, and interrogation. At first, these were mainly unilateral presidential actions, often justified in classified Office of Legal Counsel memoranda, which deployed a broad version of the unitary executive theory that insisted presidential power was plenary and could not be limited by Congress or the courts.
Given the overwhelming level of public support, as well as a long-standing tradition of deference by Congress and the judiciary to the president during times of war and crisis, Bush and Cheney could reasonably have expected that they had carte blanche to do as they pleased in shaping the US response to 9/11. In COURTS AT WAR, Gregory Burnep argues that when it comes to what he calls “enemy combatant policies” (policies related to detention and military commissions for suspected terrorists), the opposite occurred (p. 3). In Burnep’s view, presidential national security power after 9/11 has not been absolute (p. 99). Instead of reflecting presidential unilateralism, national security policy has “emerged from a back-and-forth between ‘separated institutions sharing powers’ [in Richard Neustadt’s phrase]” (p. 120). President Bush was forced to recalibrate and modify actions he initially took unilaterally, and his successors have been similarly constrained.
In COURTS AT WAR, Burnep sets out to “examine the role of lawsuits and courts in shaping national security policy from Sept. 11, 2001 through the beginning of the Trump presidency” with a “focus in particular on two wartime policy areas: detention and military commissions” (p. 2). While some scholars have expressed concern over unchecked presidential authority, Burnep claims it is incorrect to conclude “that the contemporary wartime president is imperial” (p. 99). Burnep’s central argument is that “litigation and courts have had a significant impact on the laws and policies surrounding detention and military commissions since 9/11” (pp. 2-3). He also concludes that members of Congress and executive branch actors have helped set limits on presidential power, often using the threat of litigation as a way to impose effective, meaningful constraints on the president (p. 99).
Burnep’s account focuses on “the creation and implementation of detention policies [and military commissions]” from the months just after 9/11 through the first year of Trump’s presidency (p 16). He shows how policies initially set by the president through executive orders and other unilateral actions changed as a result of court rulings and legislation representing a back and forth between different actors in the constitutional system (including executive branch officials whose views were sometimes at odds with the president’s). Burnep’s “central takeaway is that lawsuits and court rulings have repeatedly generated significant policy changes…[with] major consequences for policy makers…includ[ing] increased checks on presidential authority…” (p. 158). His analysis emphasizes an interbranch approach that does not consider the president or executive branch operating in isolation (pp. 14-16). Burnep identifies “adversarial legalism” as a central feature of this story—a process defined by “[e]ntrepeneurial lawyers…[as well as] judges who were open to innovative legal arguments” influencing “policy makers [who] thought about future court battles and argued for policy changes that would increase the likelihood of favorable judicial outcomes” (p. 120).
The reader will find a careful account of detention and military commission policies in the years after 9/11. Burnep’s analysis includes close and illuminating readings, not only of key Supreme Court decisions like HAMDI V. RUMSFELD, RASUL V. BASH, and HAMDAN V. RUMSFELD, but also of lower court rulings that preceded and followed these decisions, as well as lower court opinions in other cases. COURTS AT WAR also provides a detailed discussion of key legislation, including the 2005 Detainee Treatment Act as well as the 2006 and 2009 Military Commission Acts. This book shows how these laws have emerged from and/or influenced executive branch policy making, as well as judicial decisions.
In the context of detention and military commissions for suspected terrorists, adversarial legalism is aimed at ensuring that fundamental standards are applied to protect the innocent from being caught in an overly broad dragnet. Burnep finds that the interbranch give and take did indeed produce some of these results, “includ[ing] increased checks on presidential authority and greater levels of due process for suspected belligerents held in US custody” (p. 158). Following adverse court rulings, “Congress and the executive branch erected multiple layers of review for Guantanamo detainees” who were ultimately also able “to challenge their detentions in habeas corpus proceedings” (p. 65). As a result of litigation and court rulings, “noncitizen suspected terrorists held outside sovereign US territory were receiving an unprecedented degree of due process”, and hundreds of detainees were ultimately released from Guantanamo (p. 65). The executive branch was unable to shape policy based on “presidential fiat”: military commissions originally created through an executive order were reshaped, following the HAMDAN decision and legislation, to “mak[e] military commissions more protective of defendants and less susceptible to top-down presidential control” (p. 99, 112).
However, adversarial legalism at times produced unintended consequences that led to undesirable outcomes for presidents and detainees alike. Burnep cautions that “the use of litigation as a policy tool may have backfired [in some ways]” (pp. 6-7). When judicial rulings, or the threat of future litigation, made policymakers think twice about detaining suspected terrorists at Guantanamo, they responded by “turn[ing] to other options, some of which seem less likely to protect the rights of suspected adversaries and fulfill the government’s security objectives” (p. 10). These other options have included the use of drone strikes as well as detention in “countries with poor human rights records” (pp. 81-82).
Burnep makes a persuasive case when it comes to detention and military commissions, showing that presidential discretion was often effectively cabined as a result of litigation and court rulings. But, detention and military commissions are only a subset of post-9/11 national security policy. Post-9/11 presidents have also made decisions involving the use of military force, surveillance, interrogation, and extraordinary rendition—often without congressional approval, sometimes even in defiance of criminal statutes. Burnep touches on some of these other policy areas in his conclusion, pointing to some ways in which litigation has had an effect beyond the context of detention and military commissions, and arguing that “similar patterns” can be observed (pp. 160-164). However, the analysis here is limited, understandably, given that the exploration of each of these policy areas in detail would make for a book of unwieldy length. But, it could be possible to consider some of the ways in which presidential power may have broken free of effective constraint without taking on an impossibly onerous task. For instance, while the Bush administration was indeed forced to change some aspects of the secret President’s Surveillance Program in 2004, other aspects remained intact, and, as Burnep concedes in a footnote, “critics would note that changes could not cure past illegality” (p. 206).
In this vein, it would be useful to consider the question of accountability—what it means for presidents to be held accountable when they overstep constitutional or statutory limits and whether presidents have, in fact, been held accountable in the area of national security power after 9/11. While neither George W. Bush nor Barack Obama displayed authoritarian ambitions, Donald Trump did. It is worth taking this into account in this context by considering whether checks and balances operate in the same way when it comes to a president who is a would-be authoritarian. Scholars may feel awkward in addressing this reality, but it is necessary to do so. In addition, Burnep does not consider presidential use of military force. While President G.W. Bush obtained congressional authorization for military operations in Afghanistan and Iraq, both Presidents Obama and Trump (as well as Biden, whose presidency is outside the scope of COURTS AT WAR) have unilaterally ordered the use of military force in ways some scholars believe is unconstitutional. It would be worthwhile to consider how or whether this policy area affects the conclusion that law has effectively set meaningful limits on presidential power after 9/11.
Overall, this is a well-organized, well-written book that offers detailed analysis and cogent insight into an important area of U.S. policy. Burnep includes an apt warning in his conclusion about what the future may hold when it comes to presidential power. While he concludes that “enemy combatant policies are now more insulated from presidential control”, he asks “[w]ill this state of affairs endure?” (p. 165). That is a question well worth considering, especially as the United States currently seems to stand at a crossroads between authoritarianism and liberal democracy.
*Disclosure: the reviewer also reviewed a manuscript of this book as part of its publication process.
CASES:
HAMDI V. RUMSFELD, 542 U.S. 507 (2004).
RASUL V. BASH, 542 U.S. 466 (2004).
HAMDAN V. RUMSFELD, 548 U.S. 557 (2006).
© Copyright 2022 by author, Chris Edelson.
