Setting the world right.

• Author: Koh, Harold Hongju
• Position: Symposium on Executive Power

ESSAY CONTENTS

1. FLIP-FLOP II. A LAW UNTO ITSELF III. HAMDAN IV. THE MYTHS OF "THE COMPLETION POWER" AND "RATIONAL WAR" A. A Completion Power? B. Should the Constitution Be Read To Permit "Rational War"? CONCLUSION In an uncertain world, crisis demands executive action. And so it was that 2005, a year of crises ranging from Hurricane Katrina to the global war on terror, became a year of executive muscle-flexing. Lost in the turmoil was a public awareness that in just five years, the war on terror had turned the world of public law upside down. As that conflict drags into its sixth year, a perceived need for executive flexibility in fighting terrorism has triggered both exorbitant governmental claims of executive power and a growing stream of scholarship supporting the expansion of executive discretion to address the war on terror. (1)

   But as the Supreme Court's October 2005 Term ended, the Court issued a landmark ruling in Hamdan v. Rumsfeld (2) which has--one might hope--finally begun the much-needed process of turning the legal world right-side up again. This Essay examines how the world of law turned upside down, how some scholarly efforts--exemplified by two academic proposals found elsewhere in this Issue--lend support to that misbegotten exercise, and how Hamdan offers principles that can set the legal world aright again.

1. FLIP-FLOP

   If the Age of Globalization began in November 1989 with the collapse of one structure, the Berlin Wall, the texture of that age changed dramatically on September 11, 2001, with the collapse of a second, the Twin Towers. (3) The collapse of the towers--and America's response to it--moved us almost literally out of the light and into the shadows of the Age of Globalization.

   During the first phase of the Global Era, from 1989 to 2001, the world marveled at the possibilities of global travel, global communications, and global markets. We could communicate with anyone, anywhere in the world, by e-mail or cell phone, withdraw currency from foreign bank machines, travel anywhere at a moment's notice. But in the wake of September 11, we realized with horror that those same tools of globalization could be turned against us: Mail could be used to send anthrax, global commercial transactions could be used to finance terrorist operations, and the very planes that could fly us around the world could be used to kill thousands and destroy our most iconic buildings.

   How did this recognition affect America's vision of foreign policy and law? In the late twentieth century, U.S. foreign policy had been characterized by four features. First, our policy emphasized the importance of using diplomacy backed by force only as a last resort. (4) Second, we followed a human rights policy based on universal application of the principles of Franklin Delano Roosevelt's 1941 "Four Freedoms" speech (freedom of speech, freedom of religion, freedom from want, and freedom from fear). (5) Third, U.S. democracy-promotion policy focused on building democracy from the bottom up. (6) Finally, we followed a diplomatic approach best described as "strategic multilateralism and tactical unilateralism." (7)

   Remarkably, in just five years, the Bush Administration has responded to September 11 by turning each of those four ideas on its head. Instead of diplomacy backed by force, the adventures in Afghanistan and Iraq exemplify a policy of force first, where ad hoc "coalitions of the willing" preserve homeland security through discretionary warmaking on real and potential state sponsors of terror--justified by an international law theory of preemptive self-defense and fear of access to weapons of mass destruction. (8) The main constraint on this strategy is not so much international law as the limits imposed by our finite military and economic resources. Second, recent human rights policy has rejected universalism and international criminal adjudication in favor of a Cold War-style double standard. We now downplay torture and violations of the Geneva Conventions committed by ourselves or our allies as necessary elements of the war on terror, claiming that freedom from fear is now the overriding human rights value. (9) Third, we have shifted from bottom-up democracy promotion to top-down, militarily imposed democracy promotion in Afghanistan and Iraq, coupled with soft faith in "domino democratization" throughout the Middle East and reduced democracy promotion in Central and Eastern Europe (Ukraine), Africa (Cote d'Ivoire), Latin America (Venezuela), and South Asia (Pakistan). Fourth and finally, America's new diplomatic strategy emphasizes strategic unilateralism and tactical multilateralism, characterized by a broad antipathy toward international law and global regime-building through treaty negotiation. And so we disregard our signature to the Rome Statute of the International Criminal Court, flout the Kyoto Protocol on Climate Change, and withdraw from the Optional Protocol of the Vienna Convention on Consular Relations.

   What does this flip-flop mean for what I called some years ago "The National Security Constitution"? (10) Not surprisingly, this revamped foreign policy vision-of unfettered executive power in the war on terror, human rights double standards, militarily imposed democracy, and strategic unilateralism--cannot operate unless the constitutional vision within which foreign policy functions is also recast.

   In 2001, as a matter of constitutional law, national security policy was conducted within four widely accepted premises. First, that executive power operates within a constitutional framework of checks and balances, resting on the vision of shared institutional powers set forth in Justice Jackson's canonical concurrence in Youngstown Skeet & Tube Co. v. Sawyer. (11) That vision of shared powers rests on the simple notion that constitutional checks and balances do not stop at the water's edge. To thrive in a global world, we need an energetic executive, to be sure, but checked by an energetic Congress and overseen by a searching judicial branch. Second, that there are no law-free zones, practices, courts, or persons. (12) Third, that we accept no infringement on our civil liberties without a clear statement by our elected representatives. (13) Fourth and finally, that--except for a few political rights, such as the right to vote or serve on a jury--aliens and citizens are treated largely the same, particularly with respect to economic, social, and cultural rights. (14)

   Yet only five years later, this constitutional vision has become similarly inverted. First, the Bush Administration now asserts a constitutional theory of unfettered executive power, based on extraordinarily broad interpretations of the Article II Commander in Chief Clause and the Supreme Court's decision in United States v. Curtiss-Wright Export Corp., which famously called the President the "sole organ of the federal government in the field of international relations." (15) According to this vision, the President's Article II powers are paramount, Congress exercises minimal oversight over executive activity, government secrecy prevails, and the Solicitor General regularly urges the courts to give extreme deference to the President, citing the judiciary's "passive virtues." Second, the Bush Administration rejects human rights universalism in favor of executive efforts to create law-free zones: extralegal spaces (Guantanamo), extralegal courts (military commissions), extralegal persons (enemy combatants), and extralegal practices (extraordinary rendition), all of which it claims are exempt from judicial review. Understandably, the administration opposes judicial efforts to incorporate international and foreign law into domestic legal review so as to insulate the U.S. government from charges that it is violating universal human rights norms in favor of double standards. Third, we increasingly hear claims that the executive can infringe on civil liberties without clear legislative statements, relying on broadly worded laws such as the Authorization for Use of Military Force of September 2001 (16) to justify secret National Security Agency surveillance, indefinite detentions, and torture of foreign detainees. (17) And fourth, the war on terror has exacerbated already sharp distinctions between citizens and aliens within American society with respect to political, civil, social, and economic rights. These distinctions have contributed to pronounced scapegoating of Muslim aliens in American life and mass public protests over pending immigration legislation.

2. A LAW UNTO ITSELF

   The latest twist, which has emerged during the past year, has been the startling notion that executive action constitutes a law unto itself. The policy rationale for executive action, the President's defenders now argue, has somehow created the legal justification for executive unilateralism.

   Take, for example, the surprising revelation that the President had ordered the National Security Agency (NSA) to engage in nearly four years of secret, warrantless domestic surveillance of uncounted American citizens and residents, notwithstanding the statutory directive that domestic intelligence wiretapping be conducted exclusively within the terms of the 1978 Foreign Intelligence Surveillance Act (FISA). (18) The Bush Administration first vociferously claimed the necessity of wiretapping telephone calls involving al Qaeda, then ended up asserting that the presidential determination that the executive action was necessary had not only overridden FISA but also rendered application of that statute unconstitutional. (19) In January 2005, before the NSA program came to light, when Alberto Gonzales was being confirmed as Attorney General, Senator Russ Feingold asked him whether he believed the President could violate existing criminal laws and spy on U.S. citizens without a warrant. Mr. Gonzales answered that it was impossible to answer questions concerning a hypothethical...