The President and the detainees.

Author:Huq, Aziz Z.
 
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Entering the White House in 2009, President Barack Obama committed to closing the military detention facility at Guantanamo Bay in Cuba. Eight years later, the facility remains open. This Article uses the puzzle of why Obama's goal proved so recalcitrant as a case study of separation-of-powers constraints upon presidential power. Deploying a combination of empirical, doctrinal, and positive political science tools, it isolates the salient actors and dynamics that impeded Obama's goal. Its core descriptive finding is that a bureaucratic-legislative alliance was pivotal in blocking the White House's agenda. This alliance leveraged its asymmetrical access to information to generate constraints on the President. The most significant of these constraints operated through political channels; statutory prohibitions with the force of law were of distinctly secondary importance. The analysis, furthermore, sheds light on why individualized judicial review, secured through the mechanism of habeas petitions under the Constitutions Suspension Clause, had scant effect. Contrary to standard approaches to the Constitutions separation of powers, the case study developed here points to the value of granular, retail analysis that accounts for internally heterogeneous incentives and agendas instead of abstract theory that reifies branches as unitary and ahistorical entities.

INTRODUCTION I. ANATOMIZING A BLACK HOLE: THE TRAJECTORY OF THE GUANTANAMO PRISON A. The Phases of Detention Policy 1. Exclusive Executive Branch Control 2. The Emergence of Judicial Supervision 3. Guantanamo as a Three-Branch Problem B. Detention Policy on the Ground C. The Implications of Detention Policy's Trajectory II. DETENTION POLICY WITHIN AND BETWEEN THE BRANCHES A. The Executive and the Rate of Detainee Transfers 1. Determinants of Executive Release Decisions 2. Bureaucratic Incentives in Times of Partisan Change 3. The Causes of Bureaucratic Resistance 4. Conclusion B. The Causes and Consequences of Legislative Intervention 1. The Roots of Legislative Intervention 2. The Substance of Legislative Intervention C. The Role of Judicial Supervision 1. The Impact of Discrete Adjudication 2. The Impact of the Courts' Law-Declaration Function 3. Understanding the (Non-)Effect of Judicial Review D. Conclusion III. WHAT CONSTRAINS PRESIDENTIAL POWER? THE SEPARATION OF POWERS REVISITED A. Beyond Branches: The Role of the Thick Political Surround B. The Interaction of Law and Politics in the Separation of Powers C. The Motivational Foundations of Interbranch Relations D. The Microfoundations of the Separation of Powers: Normative Triplications E. The Road to Guantanamo's Closure Reconsidered CONCLUSION APPENDIX: THE WIKILEAKS FILES AND OTHER DATA ON GUANTANAMO A. Wikileaks B. Westlaw C. PACER INTRODUCTION

On January 20, 2009, Barack Obama was sworn into office as the 44th President of the United States. His campaign platform included a pledge to shutter the detention facility at Guantanamo Bay. A century-old U.S. military facility on the southeastern littoral of Cuba's Oriente Province, (1) Guantanamo had been used to house individuals seized in extraterritorial counterterrorism operations since January 2002. (2) As early as August 2007, then-candidate Obama committed himself to dispersing those individuals and winding up detention operations at the Cuban base. (3) In the wake of his November 2008 victory, his campaign team reiterated that goal, signaling the President's ambition of making a "sharp break" with the George W. Bush Administration. (4) Yet on his departure from office, forty-one individuals remained in custody at Guantanamo. (5) Far from achieving its ambition, by 2016 the Obama Administration had downgraded its aspirations to a goal it had already achieved: a detainee population in the double digits. (6) A policy once perceived as a signature legacy of the George W. Bush Administration had become a keystone of the Obama legacy. (7)

The persistence of the Guantanamo detentions ought by rights to be a puzzle for constitutional law. A common theme in recent public-law scholarship is the increasing, even "unbounded]," power of the executive branch, (8) in contrast to a polarized and "gridlocked" Congress. (9) As a matter of constitutional structure, Presidents' unified and hierarchical control over the executive branch ought by rights to enable efficient and rational policymaking of a kind that can easily elude the multitudinous and disputative Congress. (10) In the Guantanamo case, it is also a result of the substantive law at issue. Discretionary executive legal and policy authority is customarily thought to be at its zenith in the national security domain. (11) Correspondingly, the case for judicial and congressional deference to the Executive is commonly thought stronger on security matters than on ordinary regulatory issues. (12) And even apart from the presidency's structural and legal advantages, the White House has a demonstrated capacity to shape the policy environment though informal "rhetorical" strategies that '"go over the heads' of Congress to the people at large." (13) Whether assessed in terms of institutional structure, law, or politics, the White House would seem at a distinct advantage to other political actors.

The Guantanamo detentions themselves illustrate each of these advantages. To begin with, the executive branch under President Bush undertook a series of swift and unilateral policy decisions about how to process and detain individuals captured in the Afghanistan-Pakistan theater with little input from Congress or the courts. Those policy decisions were reached in a context uncluttered by perceived legal constraints. (14) And just as the White House was shaping facts on the ground and contouring the legal landscape, it was also molding the public narrative about detainees on the basis of its lopsided access to information about what was happening at the Cuban base. (15)

But if one President could unilaterally create a prison at Guantanamo, why couldn't a subsequent Chief Executive end it? This question cuts to the heart of the idea of the separation of powers. Whereas the establishment of the Guantanamo detentions was characterized by swift and unilateral executive action, the subsequent phase of Guantanamo's operation was characterized by increasing levels of interbranch involvement. First courts, and then Congress, intervened. Between 2004 and 2008, the Supreme Court issued several opinions regulating military detention in ways that increasingly pinched on executive branch discretion. (16) These rulings culminated in 2008 in Boumediene v. Bush, which extended the Suspension Clause of Article I, Section 9 (17) to Guantanamo. (18) As a result of Boumediene, federal judges in the District of Columbia began adjudicating individual challenges to detention. In doing so, they exercised retail superintendence of a policy that until then had been under near-exclusive executive branch suzerainty. Further, they started to fill gaps and ambiguities in what until then had been a skeletal statutory definition of lawful detention authority. (19) In 2009, Congress too entered the fray by enacting restrictions on detainees' transfers (20) and by refining the lawful bounds of detention authority. (21)

Until now, neither the causes nor the consequences that these judicial and legislative interventions have had for presidential discretion have been carefully studied. A body of existing scholarship, to be sure, focuses on the early role played by private and public-interest lawyers who challenged detentions. In a 2010 article, for example, I presented data on changes in the overall detention population, and argued that habeas suits from 2004 onwards operated as "shots across the bow," pushing the executive to adopt policies characterized by "professionalism and reliability" rather than ad hoc and unreliable decisionmaking. (22) Subsequently, commentators from divergent political and policy perspectives have argued that legal challenges from civil society can motivate changes to security policy. In 2012, for example, Jack Goldsmith characterized civil litigation as an element of a larger ecosystem of transparency that constrains the presidency. (23) From the other side of the political spectrum, David Cole in 2016 enthusiastically celebrated "[t]he Power of Citizen Activists to Make Constitutional Law." (24) These encomiums to civil society as an effectual and needful friction on governmental power, however accurately they may depict Guantanamo's early years, do not explain-and, indeed, do not purport to explain-the persistence of Guantanamo's prison in the context of an active separation of powers. It is necessary to look beyond the invisible hand of Toquevillian civil society to explain why the detentions persisted as long as they did.

My aim in this Article is to cast light on that puzzle with a close empirical study of the effects of interbranch dynamics upon Guantanamo policy. First, the Guantanamo prison is, for better or worse, a synecdoche for a much larger constellation of controversial counterterrorism policies associated with President George W. Bush. Celebrating the mobilizations that sought to apply constitutional limits to those operations-and thus to end practices that many believe to be immoral and unwarranted-is surely worthwhile, especially given the seeming risk today that many of those policies will be revived. But it is also important to understand how and why this particular cluster of controversial policies persisted long after being roundly rejected as inconsistent with shared legal and normative commitments. Why Guantanamo persisted, in short, is an intensely specific question-but one that should matter to us not only as scholars, but also as citizens. Second, the case study of the Guantanamo detentions casts light on how our separation of powers works in practice. Although I do not develop here a new theory of the...

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