Vol. 27 No. 8 (October 2017) pp. 126-130PERMANENT STATE OF EMERGENCY: UNCHECKED EXECUTIVE POWER AND THE DEMISE OF THE RULE OF LAW, by Ryan Alford. Montreal: McGill-Queen’s University Press, 2017. 333pp. Cloth $34.95. CAD. ISBN: 978-0-77-354919-7.
Reviewed by Daniel N. Hoffman, Professor Emeritus, Johnson C. Smith University. Email: guayiya@bellsouth.net.
This book, by Canadian law professor Ryan Alford, adds to a growing body of literature about the weakening of traditional legal and institutional checks that once hemmed in the U.S. executive branch. The study is especially distinctive in its focus on a conception of the rule of law drawn from international materials.
The preface states, with disapproval, that “there is now a bipartisan consensus on the desirability of an elective dictatorship over foreign affairs and national security” (p. xiii). It concludes, “a country that has exited from constitutional governance is no longer self-correcting. If the rule of law is to be restored in the United States, this will likely require significant efforts by the international community …” (p. xiv).
The introductory chapter begins with assessments by UN Special Rapporteur Philip Alston, Amnesty International and Human Rights Watch of US responses to the 9/11 attack: they agree that measures such as drone killings, torture, and indefinite detention violate international humanitarian law. Alford argues that neither the Obama administration, the courts, or Congress provided effective legal remedies. Instead, the courts and Congress implicitly accepted increasingly bold claims of plenary executive power. The rule of law principles effective prior to 9/11 have been abandoned, and the other branches can no longer effectively oversee executive action.
Chapter 1 explores the minimum requirements of the rule of law, a concept that is traced back to British history and the struggle against absolute monarchy. Alford relies on Dicey’s definition of the rule of law, which is defined as the absence of prerogative and arbitrary power, equality before the law, and duty of officials to obey the laws. The UN has endorsed this concept, with the added proviso that accountability must be “consistent with international human rights norms and standards” (p. 17). Despite intense jurisprudential debate over which substantive rights are protected, the core principle of legality—rules of general application and neutral adjudication—is not controversial. The International Commission of Jurists has emphasized the importance of careful legislative delineation of executive powers and oversight of their exercise, as well as review and remediation by an independent judiciary. The author notes that, “This jurisdiction must extend to every possible claim of infringement of non-derogable human rights (Non-derogable rights are rights recognized under international law that a nation cannot violate under any circumstances (p. 17).) by the executive, and includes the power to determine whether evidence sought from the government by the plaintiff can be properly withheld in the interest of state security.” (p. 26). The recent growth of executive powers rejects the core principles of the rule of law and subverts the US Constitution. [*127]
Chapter 2 attests to the resiliency of the rule of law before 1940, protected by the separation of powers. The abandonment of isolationism led to FDR and his successors to successfully claim extensive new powers, at the expense of civil liberties. Between 1950 and 1968, the state of emergency initially created by Pearl Harbor continued into the Cold War. With the creation of the national security state, temporary infractions of the rule of law threatened to yield its permanent demise. Limited inter-branch checks on executive power survived. However, the checks were strengthened after the crises of Vietnam and Watergate. The author points out, “It was under President Nixon that the American executive began to elaborate and act upon theories of its inherent powers …” (p. 44). Ultimately, Congress responded with the War Powers Resolution, measures against impoundment, the pocket veto, and enhanced oversight of the intelligence agencies. Additionally, loopholes were closed in numerous broad grants of discretionary power from the Cold War era such as the Privacy Act of 1974, amendments to the Freedom of Information Act, the Non-Detention Act of 1971, the National Emergencies Act of 1974, the International Emergency Economic Powers Act of 1977, and the Foreign Intelligence Surveillance Act of 1978. Meanwhile, the courts resisted executive overreach and ruled against warrantless wiretapping and Nixon’s withholding of incriminating tapes from the Special Prosecutor, eventually leading Nixon to resign.
Chapter 3 recounts the post-9/11 drive of the Bush administration for expanded executive authority, led by Dick Cheney, Donald Rumsfeld, and others who had long deplored the post-Watergate reforms. The first fruit of their campaign was the 2001 Authorization for Use of Military Force. Although ostensibly limited to actions against “those” directly involved in the 9/11 attacks, it left the executive branch free to determine who those were. Signing statements and confidential Office of Legal Counsel (OLC) memoranda were invoked to interpret the AUMF far more broadly than Congress had intended to cover the threat of terrorism from any quarter. President Obama subsequently embraced most of these interpretations. Alford argues, “On this basis, the war on terror, itself an expansion of delegated powers that offended the rule of law, was thereby expanded into a war against an ideology, which can be defined ever more broadly by the executive” (p. 83). These measures not only expanded the state of emergency, but denied judicial remedy for numerous violations of legal rights such as drone strikes (even against US citizens), sweeping warrantless surveillance of phone and electronic communications, arbitrary detention, and torture. For example, the regime established at Guantanamo Bay ignored the most basic legal safeguards. Moreover, as Alford points out, this was done “with the goal of obtaining false confessions that would make the case for further military campaigns, thereby prolonging the state of emergency and allowing for additional consolidation of power within the executive branch” (p. 88). In particular, Cheney, Rumsfeld and Paul Wolfowitz had demanded more intense interrogation efforts to prove links between al Qaida and Iraq. OLC memoranda repeatedly invoked both implicit congressional authorization and inherent presidential powers. These claims of executive power, unlimited in scope and duration, are inconsistent with the rule of law.
Chapter 4 reviews the judicial response to the steps reported above: in short, Alford argues there is a consistent evasion of the courts’ constitutional responsibilities. [*128] Despite some chastisement of executive abuses, no effective restraints were imposed on indefinite detention. Therefore, habeas corpus is available in theory but not in practice. “In the end, the court contented itself with merely creating a pressure valve in the form of tightly restricted opportunities for the detainees to prove their innocence, without even requiring release in that event” (p. 118). The DC Circuit Court overturned every judicial grant of habeas, deferring completely to secret intelligence findings, including those obtained by torture, and the Supreme Court never intervened.
Lawsuits by torture victims were likewise dismissed on grounds of official immunity and other avoidance doctrines. Another lawsuit challenging the targeted killing program was dismissed for lack of standing to sue and as presenting a non-justiciable political question. Moreover, when the executive branch has failed to comply with the War Powers Resolution, the courts have consistently failed to enforce it. Courts have also declared themselves powerless to compel publication of legal memoranda that justified targeted killings, as well as warrantless surveillance of antiwar activists, academics, attorneys and journalists. Nor have they challenged the hindering of litigation by retroactive classification of documents sought by plaintiffs. Alford shows that the “Courts have been amenable to arguments about the need for secrecy that make judicial review of violations of non-derogable rights impossible” (p. 149). In sum, because of avoidance and deference, “the federal courts cannot exercise any oversight or restrain the executive’s most serious violations of non-derogable rights.” (p.157). Alford’s assessment of judicial weakness is very close to those of Rudenstine (2016) and Fisher (2017).
Chapter 5 expands on judicial deference to the executive branch. Alford traces a recent strategy of court appointments that systematically favors candidates with past experience in the executive branch with the Senate largely, in Alford’s view, abandoning its earlier resistance to nominees seen as presidential cronies. Alford pays special attention to the backgrounds and judicial conduct of William Rehnquist and Antonin Scalia during this time. The author notes the rejection of Robert Bork was an exception, precisely because his pro executive record and his conservative judicial philosophy were so public. The pattern continued in the Obama Administration with the appointment of Elena Kagan and the nomination of Merrick Garland. Alford also notes that the courts of appeals deferred even more to executive branch prerogatives. For example, there is evidence that “the DC Circuit’s decisions to affirm broad executive powers are part of a concerted attempt to take pressure off the Supreme Court …” (p. 195). Alford argues that the Supreme Court’s 2004 decision (BUSH V. GHEREBI, 542 U.S. 952) to channel most terrorist detainee habeas cases to the DC Circuit establishes a concerted strategy. A “breakdown of the mechanism of judicial selection” has led to a “comprehensive failure of the rule of law in the United States” (p. 198).
Chapter 6 explores the failures of congressional oversight. The Military Commissions Act of 2006 denied procedural protections to detainees and prevented them from relying on the Geneva Conventions. Amendments in 2009 overrode the protections announced by the Supreme Court; both statutes had bipartisan support. The 2005 Detainee Treatment Act granted immunity to torturers, enabled continued use by military commissions of evidence obtained by torture, permitted the executive to reauthorize “enhanced interrogation” simply by amending the Army field Manual, [*129] and directed appeals from findings of enemy combatant status to the strongly pro-executive DC Circuit. In marked contrast to its resistance to President Carter’s peacemaking efforts, Congress quickly authorized the 2003 invasion of Iraq, rejecting proposed limiting amendments, and failed to act against the 2011 attack on Libya or the proposed 2013 attack on Syria. In these cases, efforts at the Committee oversight level were obstructed by false or misleading information. Alford argues that more vigorous resistance is not profitable for members of Congress because it does not enhance their prospects for re-election, but does harm their prospects for support and promotion by leaders of both parties, which exemplifies the power of the military-industrial complex. Alford points out, support for war is highly conducive to success in American politics. “The military-industrial and intelligence complex is able to exert considerable influence over legislators by means of campaign spending that has also expanded exponentially over the past decade” (p. 234). Even after Snowden’s revelations, Congress was far more concerned with the purported illegality of making the executive’s illegal conduct public than with the wrongdoing he revealed. Alford shows, without whistleblowers, legal norms and personal rights can be violated with impunity.
The Conclusion acknowledges that Americans continue to enjoy broad political and social rights, but maintains that a state that is free to violate those at will cannot be considered a functioning rule of law state. “[T]he problem is the creation of constitutional theory that allows the executive to violate non-derogable rights with impunity ….” (p. 247). An Afterword opines that the advent of President Trump, with his even more inflated view of presidential powers, marks a further drastic step toward elective dictatorship.
Alford does an excellent job of documenting post-9/11 challenges to the rule of law. His explanation of these events, however, is far more controversial. First, the rule of law is clearly an ideal, never perfectly realized in the practices of those who make, enforce, and interpret the rules. Arguably, its status in a given state at a given time, can only be a matter of degree, not an either-or proposition. Second, the thinness of Alford’s coverage of pre-9/11 history undermines the persuasiveness of his claim that recent developments are qualitatively new. As he acknowledges, advocates have been able to cite numerous earlier episodes as authority for their claims, even if the status of those episodes as legal “precedent” is highly controversial (see work by Hoffman (1981) and Fisher (2017)). Third, many readers inclined to presume that high officials generally act in good faith, will reject as “conspiracy theory,” Alford’s attributions of base motivation to those who insisted that threats to national security were genuine and accusations/confessions of terrorist action were truthful. Indeed, given the fallibility of human judgment and our facility in persuading ourselves that whatever we want to do is right, it is unclear how much these attributed motives actually strengthen the case on threats to the rule of law. Clearly, presidents have consistently sought to protect the powers of their office by keeping open all of their ever-growing doctrinal options. A sincerely launched war is still a war, and a sincerely seized dictatorship is still a dictatorship. Moreover, while wrongful motives might be pertinent to litigation against current or former high officials, Alford shows that such litigation is anyway unlikely to occur and even less likely to succeed. Conceivably, widespread acceptance of Alford’s charges could change [*130] the climate of public opinion in relevant ways, but Alford is realistically pessimistic about that prospect.
Fourth, Alford, like many others concerned with executive power, tends to conflate the power of the president with that of the “deep state” officials who are formally his subordinates. This obscures the extent, detailed by Glennon (2015), to which those officials shape the presidents’ access to information, formulate their policy alternatives, and can block or obstruct initiatives of which they disapprove. The course of the Trump Administration shows that open conflict is a real possibility. This, however, does not reinforce the rule of law, as Alford understands it, unless legal considerations are publicly debated and supply the basis for policy outcomes. As Charlie Savage (2007, 2015)) has shown, that was seldom or never the case in the G. W. Bush and Obama administrations. Fifth, while violations of international law are significant in principle, Alford fails to demonstrate their concrete legal or political consequences, either at home or abroad. Finally, while the rule of law is said to be a core principle of our Constitution, its actual text and the checks and balances it enumerates can be seen as largely inoperative. Congress’s powers to declare war, suspend habeas corpus, and impeach are, in practical terms, as obsolete as letters of marque and reprisal. Not only is constitutional reform extremely difficult to obtain, but also given our role in the world and our political culture, it is unlikely that it could have much impact on actual power of the executive branch.
REFERENCES:
Glennon, Michael. 2015. NATIONAL SECURITY AND DOUBLE GOVERNMENT. New York: Oxford University Press.
Fisher, Louis. 2017. SUPREME COURT EXPANSION OF PRESIDENTIAL POWER: UNCONSTITUTIONAL LEANINGS. Lawrence: University Press of Kansas.
Hoffman, Daniel N. 1981. GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS: A STUDY IN CONSTITUTIONAL CONTROLS. Westport: Greenwood Press.
Rudenstine, David. 2016. THE AGE OF DEFERENCE: THE SUPREME COURT, NATIONAL SECURITY, AND THE CONSTITUTIONAL ORDER. New York: Oxford University Press.
Savage, Charlie. 2007. TAKEOEVER: THE RETURN OF THE IMPERIAL PRESIDENCY AND THE SUBVERSION OF AMERICAN DEMOCRACY. New York: Little, Brown and Co.
Savage, Charlie. 2015. POWER WARS: INSIDE OBAMA’S POST-9/11 PRESIDENCY. New York: Little, Brown and Co.
CASES:
BUSH V. GHEREBI, 542 U.S. 952 (2004).
Copyright 2017 by the author Daniel N. Hoffman
