No one doubts that the choice of instruments for detaining individuals suspected of terrorism presents hard choices for legislators, executive officials, and judges. (1) All concerned bring to the problem not only strong and divergent moral intuitions, but also quite distinct views about the constraints imposed by the Constitution and international law on the government's power to lock up its own citizens and noncitizens. Making the problem even more resilient to consensus, few participants in the debate have extensive empirical data about the downstream effects of detention policy choices. (2) Uncertainty about specific cases is compounded by the rapid changes in al Qaeda's modus operandi and organizational structure, changes that will only accelerate in the wake of Osama bin Ladin's death. (3) Facing seemingly intractable normative and empirical differences, jurists have responded by changing the analytic focus. Rather than asking what policies are justified on empirical and normative grounds, they instead ask which institution should take the lead in crafting counterterrorism policy. (4) Employing that institutional lens, they transform a debate about "first order" detention policy choices into a debate about "second order" choices of institutional design--a debate about "the legal institutions that are used to implement first order policy goals." (5)
Shifting the frame in this fashion has the important consequence of changing the tools available for answering hard questions of detention policy. Addressing matters of institutional choice, courts (6) and scholars (7) can leverage a rich vein of constitutional thinking about the separation of powers. (8) The separation of powers provides a lens for analyzing second-order questions of detention law because it highlights institutional characteristics of the executive and the legislature that are often thought to be relevant to detention policy, such as expertise, speed, deliberation, and attention to rights-related externalities. There are two ensuing positions. On the one hand, some argue that the executive should take the lead on security policies because of its comparative institutional advantages in acting with speed and on the basis of a broad array of information sources (both public and classified). Others, by contrast, argue that it is both legally necessary and normatively desirable to have policies formulated through congressional deliberation because of the risk that the executive acting alone will behave too precipitously at the expense of individual rights. Participants in the debate, that is, agree on how to characterize the executive and Congress, but they disagree as to which institutional characteristics are most at a premium in detention policy.
This brief Essay uses the trajectory of detention law and policy to cast doubt on the utility of such a separation-of-powers lens. I offer here two reasons for doubting the perspicacity of these types of "institutionalist" arguments. First, I suggest that the intellectual heritage of the separation of powers is plural and contested. It is not possible therefore simply to invoke constitutional structure as a resolving device in debates on security policy. The analyst needs some independent theory to decide how to interpret the separation of powers to resolve present policy debates. That exogenous theory, in my view, tends to do the analytic labor, with the 'separation of power' label merely supplying a conclusory label at the close of the argument. Second, the theory that often implicitly animates judges' and scholars' separation-of-powers claims is one of comparative institutional competence. But tracing the recent trajectory of detention policy in Congress, the executive, and the federal courts, I suggest that this history indicates that it has not been comparative institutional competence, but rather brute partisan politics, that has shaped policy's path. To determine the future trajectory of policy, it is therefore less helpful to ask "which institution" and more helpful to ask "which party." More specifically, it is useful to consider how calculations of electoral risk for legislators and occupants of the White House shift with partisan affiliation and circumstances in ways that conduce to certain policies.
Because I have written elsewhere skeptically about institutionalist arguments in the national security law context, it is incumbent on me to explain at the threshold how the arguments presented here are distinct from and supplement that other work. I have argued elsewhere that it is transubstantive dynamics cutting across doctrinal barriers, not any logic peculiar to national security or counterterrorism, that best explain the behavior of courts responding to post-9/11 policies. (9) In a forthcoming article, I also draw on empirical and theoretical evidence about the political economy of national security policy-making to suggest that principles of structural constitutionalism--abstract conceptions of the separation of powers--do not provide a reliable guide for judges of the efficacy or tailoring of national security policies. (10) Unlike those articles, this Essay is not focused on judicial behavior. Nor does this Essay rely on evidence from the political economy literature. This Essay instead focuses first on the legal theory of the separation of powers, and then provides a historical case study to show how that theory's predictions do not find support in the observed outcomes of detention policy. These are arguments, so far as I can tell, that have not been aired elsewhere in the literature.
Scholars and judges alike presume that the intellectual heritage of the separation of powers supplies a foundation on which to judge the merits of today's detention policies. (11) Rather than asking whether a policy is wise, they imply, we should ask whether it has been formulated by the right institution. (12) On the one hand are those who favor security and tend to believe that the executive should take the lead. On the other we find those with a more libertarian bent, who tend to believe that Congress should play a larger role. On both sides, there is a tendency to invoke the Constitution's separation of powers as if that principle could end the debate. (13)
Rather than canvassing the rather large field, I highlight here just one especially important example of this type of institutionalist logic. Justice Kennedy's opinion for the Court in Boumediene v. Bush explicitly and repeatedly invoked a separation-of-powers logic for its holding that the review of Guantanamo detention decisions be routed through the federal district courts. (14) To support this conclusion, Justice Kennedy argued that the Suspension Clause--or rather, the jurisdiction guaranteed against displacement by that Clause--"is designed to protect against cyclical abuses [during emergencies]" by ensuring that "except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the 'delicate balance of government.'" (15) Hence, "the protection of individual [liberties]" was to be achieved by vindicating the "separation-of-powers scheme." (16) The Court's logic here is echoed by many commentators, who follow Justice Kennedy's assumption that the constitutional tradition of the separation of powers directs a resolution of the currently divisive problematics of detention policy. (17)
A threshold problem with this leap from immanent constitutional logic to policy outcomes is that the separation of powers is not a simple concept. On its own, talismanic invocation of the separation of powers does little or no meaningful work because that tradition is diverse and fragmented. It is not constitutional tradition, but pragmatic and consequentialist notions of institutional competence that do the work in Justice Kennedy's argument and its ilk. The "separation of powers" is thus a legal label applied to the end result of an instrumental analysis.
Even at the time of the Founding, the phrase "separation of powers" had already accumulated "many meanings." (18) At a minimum, the English experience of "mixed" government and the sharper separation of governmental functions limned and endorsed by the French political thinker, Charles-Louis de Secondat, baron de La Bride et de Montesquieu, supplied two mutually inconsistent "paradigms" for thinking about the concept. (19) Historians have identified five subsequent and distinct streams in early American thinking about the separation of powers. (20) The Framers did not owe sole allegiance to any one single strand. (21) Those who met at Philadelphia in 1787 did not converge on a sole design goal that would have enabled them to select amongst separation of power conceptions. They divided, for example, on whether a "modern European war-making state" provided a plausible model for the new Republic. (22) And with the exception of the 1780 Massachusetts Constitution--which was not even followed as a template--the Framers had few examples of how to implement the separation of powers in the form of a legal text. (23) As a result, the Constitution's wording and enacting context can oxygenate starkly divergent views about the division of effectual power between Congress and the executive. Circumstantial evidence from the Founding era--such as the Federalist Papers and the Pacificus-Helvidius debate of 1793 (24)--perhaps unsurprisingly supplies further ample ammunition for both sides.
Moreover, there is continuing disagreement about the core purpose of the Constitution's separation of powers. In 1996, for example, Justice Kennedy could enumerate in one (quite long) breath a litany of diverse, divergent goals for the separation of powers: "[d]eterrence of arbitrary or tyrannical rule," a government "that is both effective and accountable," and "responsive and deliberative lawmaking." (25) Not all of these goals can be achieved simultaneously. Most obviously...