Losing the Law War: the Bush Administration's Strategic Errors
| Publication year | 2010 |
Georgia State University Law Review
Article 5
3-21-2012
Losing the Law War: The Bush Administration's Strategic Errors
John O. McGinnis
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Recommended Citation
McGinnis, John O. (2008) "Losing the Law War: The Bush Administration's Strategic Errors," Georgia State University Law Review: Vol. 25: Iss. 2, Article 5.
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LOSING THE LAW WAR: THE BUSH ADMINISTRATION'S STRATEGIC ERRORS
John O. McGinnis*
Introduction
The Bush Administration's legal performance in the war on terror was much like its performance in the war in Iraq. In both cases it had plausible objectives, but employed mistaken, often counterproductive and occasionally foolish strategy. The Bush Administration itself has admitted mistakes in Iraq.1 But it is also important to describe the errors in its legal strategy to which it has not yet admitted so that future administrations will not suffer similar defeats in the courts of law and the courts of public opinion.
The errors in the Bush Administration's legal strategy had common roots. One was an ideological focus on bolstering executive power and a consequent lack of pragmatic flexibility in choosing tactics that would maximize the chances of gaining public and judicial acceptance of its framework for detention, interrogation, and trial of terrorists as well as surveillance of individuals residing in America. The Administration repeatedly failed to recognize that reliance on executive authority alone entailed a high risk of defeat at the hands of the Court.
Second, the Administration underestimated the magnitude of the risk that the Court would curb the President's discretion, because it radically misunderstood the changed legal environment for litigation in the twenty-first century. Every aspect of American life has seen
* Stanford Clinton Sr. Professor of Law, Northwestern University School of Law. This article is an expanded version of Prof. McGinnis' speech on Oct. 23,2008, part of the Henry J. Miller Distinguished Lecture Series, and is a revised and updated version of an essay which first appeared in Policy Review. John O. McGinnis clerked for Hon. Kenneth W. Starr, U.S. Court of Appeals for the District of Columbia. From 1987 to 1991, Professor McGinnis was deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice.
1. In 2006, Bush, along with British Prime Minister Tony Blair, admitted "major misjudgments in execution of Iraq war . . . ." David E. Sanger & Jim Rutenberg, Bush and Blair Concede Errors, But Defend War, N.Y. Times, May 26,2006, at Al.
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increasing legalization2 and as a result of this trend even discretion in the war on terror would likely be seen through the prism of legalism that applies to domestic criminal law. Moreover, foreign elites, particularly European elites, would seek to influence our judiciary so as to tie down what they regard as a dangerous hegemon.
The third systematic error was a failure to recognize that all Administrations tend to lose power as they age,3 and wars run a high risk of exacerbating that loss as the conflict proves less popular than it was at the initial stage. Of course, the scandals at Abu Ghraib4 and the specific setbacks in Iraq could not have been predicted. But an Administration's legal high command—and here I speak particularly of the White House Counsel and Attorney General and not those simply defending the policies in court—must be particularly mindful of the general downside risks so as to minimize the worst possible outcomes.
As a result, the Administration would have been well advised to take every step to bolster its legal position as early as practicable. It could have done that by securing from Congress framework legislation for detention, military tribunals, surveillance, and perhaps even interrogation. Because citizens are generally most supportive of an Administration at the beginning of a conflict (a phenomenon so well know among political scientists that is has been given the name "rally around the flag effect"5), the terms of trade of the Administration with Congress would have been likely favorable,
2. For a discussion of several aspects of the increase in American civil litigation, see Marc S. Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986).
3. Steven G. Calabresi & James Lindgren, The President: Lightning Rod or King?, 115 Yale L. J. 2611 (2006) (arguing that the incumbent president's political party tends to lose power in mid-term and off-year elections as voters blame the president for national woes).
4. In 2004, reports emerged that American military personnel physically, sexually, and psychologically abused detainees at the Abu Ghraib prison in Iraq. See Scott Higham and Joe Stephens, New Details of Prison Abuse Emerge: Abu Ghraib Detainees' Statements Describe Sexual Humiliation and Savage Beatings, Wash. post, May 21, 2004, at A01. The Taguba Report, the result of the military's inquiry into events at Abu Ghraib, is available at http://news.findlaw.com/hdcrcs/docs/iraq/ tagubarpt.html.
5. See William D. Baker & John R. Oneal, Patriotism or Opinion Leadership?: The Nature and Origins of the "Rally 'Round the Flag" Effect, 45 J. conflict resol. 661 (2001). See also Matthew A. Baum, The Constituent Foundations of the Rally-Round-the-Flag Phenomenon, 46 Int'l Stud. q. 263 (2002).
even when the Senate was controlled briefly by the Democrats in late 2001 and 2002, not to mention in 2003 when Republicans took over both Houses and the United States was still savoring victory in Iraq. To be sure, nothing is certain in the legislative process and deals would have had to have been struck, but it seems very likely the Administration early on could have obtained legislation that would have met its strategic objectives.
The consequences of eschewing Congress and relying on vindication of executive power in court have been grave. Far from strengthening executive power, the Administration's policies generated a series of Supreme Court defeats that have weakened it.6 These losses contributed to a public perception that its policy for dealing with captured terrorists was in disarray, and still worse, that the United States was entrenching on liberties as never before, when the reality is that the war in Iraq and the war on terror has trenched on liberties less than previous wars and even the detainees at Guantanamo had greater protections at trial than their counterparts in earlier wars.7 The unnecessary reliance on executive power also permitted foreign critics to claim that President Bush was a lone ranger in his approach to detention of enemy combatants, whereas early endorsement by Congress of specific polices would have underscored the reality that he reflected the consensus of the American people at the time.
Let me stress at the outset that the Administration's errors were ones of prudence and judgment, not morality or ethics. After September 11, the United States was confronted with a new kind of enemy made all the more fearsome in an age of weapons of mass destruction. The Bush Administration's lawyers had to confront novel kinds of questions without a clear legal map. These errors do not make their service any less patriotic and admirable.
6. Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (finding that a United States citizen held as an enemy combatant had a due process right to contest his detainment); Rasul v. Bush, 542 U.S. 466, 484 (2004) (holding that district courts could hear habeas claims of Guantanamo Bay detainees); Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (holding that the military commissions established by the Bush Administration violated the Uniform Code of Military Justice and the Geneva Conventions).
7. This point is ably made in Jack Goldsmith & Cass Sunstein, Military Tribunals and Legal Culture: What a Difference Sixty Years Makes, 19 const. comm. 261, 288 (2002).
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Yet some law professors have unfortunately called the work of these lawyers incompetent to the point of being unethical.8 Amnesty International has even suggested that some of the lawyers be investigated for war crimes.9 The translation of legitimate disputes about law into matters of ethics and criminal law is an attempt to cut off the legitimate debate by which law is made in a democratic and pluralist society. Amnesty International has never provided any showing that the Administration lawyers' arguments were made in bad faith or lacked a basis in law, even if they were rejected by some courts and other scholars.10
I. Getting Some Big Things Right
Before analyzing the Bush Administration's strategy on the war on terror, it is important to reject some lines of critique made popular by its opponents. First, critics are wrong to suggest that terrorism only requires enhanced law enforcement rather than the use of war powers. Second, critics are also wrong to suggest that the United States is bound by international law even if that law is not incorporated into our domestic law.
The 9/11 attack on the United States was an act of war no less than Japan's attack on Pearl Harbor. Al-Qaeda was a military organization
8. See Kathleen Clark, Ethical Issues Raised by the OLC Torture Memorandum, 1 J. NAT'l. SEC. L. & Pol'y 455, 463 (2005) ("The substantive inaccuracies of the Bybee Memorandum are so serious that they implicate the legal ethics obligations of its authors.").
9. "... Amnesty International calls...
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