Special Section: New Dynamics in Constitutional Law

Battlegrounds

On war, anti-terrorism and executive power, constitutional scholars have a lot to say. Lawmakers are listening—and so are the courts.

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Illustrations by Gary Sawyer

In one week last January, two constitutional scholars from Harvard Law School testified in separate congressional hearings on the growing clash between Congress and the executive branch over war powers and other critical issues.

While it’s not unusual for law professors to testify on Capitol Hill, the twin appearances by HLS faculty members that week neatly symbolized the urgency and importance of constitutional expertise and scholarship in wartime—and the prominent contributions that HLS professors have been making lately in some critical national debates.

“I don’t think you can find any other faculty that’s got this many people, with this many perspectives, addressing and doing new scholarly work on the issues ranging from the basic questions of how to respond to the terrorist threat all the way through the constitutional dimensions of congressional attempts to limit the continued use of troops in Iraq,” says David Barron ’94, one of the HLS professors who testified that week.

The academy has clearly been galvanized by the wars in Iraq and against terror, which have generated plenty of tough constitutional questions along with new tensions between the executive and legislative branches.

War powers and anti-terrorism

In January, Barron appeared at a Senate Judiciary Committee hearing on Congress’ power to end wars, telling the members: “Congress possesses substantial constitutional authority to regulate ongoing military operations and even to bring them to an end.” He was also among a group of legal scholars who signed a letter to Congress earlier that month about the constitutionality of congressional efforts to limit troop increases in Iraq. No stranger to Capitol Hill, he has worked recently with New York Sen. Charles Schumer ’74 on changes to a federal surveillance statute.

“Though congressional war powers are not plenary,” Barron told the Senate Judiciary Committee, “neither do they limit the legislature solely to reliance upon a complete termination of funding in regulating the scope, duration or size of a military operation. To the contrary, our constitutional tradition shows that measures such as those now being considered concerning military operations in Iraq—whether they place caps on troop levels, restrictions on the introduction of new troops or establish a date certain by which troops must be redeployed—are clearly constitutional exercises of well-established congressional war powers.”

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“Congress possesses substantial constitutional authority to regulate ongoing military operations,” says David Barron, “and even to bring them to an end.”

Barron has developed his views in greater depth in a two-part article, written with Martin S. Lederman, a visiting professor at the Georgetown University Law Center, that is scheduled for publication in upcoming editions of the Harvard Law Review. In that piece, the authors upend what they describe as the well-entrenched assumption that, as a matter of original constitutional intent and long-standing constitutional practice, operational or tactical matters are “for the president alone.” Constitutional history shows, they argue, that there is really only one “core prerogative” of the commander-in-chief—namely, a prerogative of superintendence when it comes to the military chain of command itself.

“It is that core power, rather than the one concerning tactics,” according to Barron and Lederman, “that … cannot be taken away by statute.” They write: “The historical practice instead reflects an implicit assumption that the President, even in times of war, is bound by statutes and treaties directing the conduct of war (so long as they do not impede his superintendence of the armed forces).”

One conclusion of Barron and Lederman’s article: “[T]he Administration’s recent assertion of illimitable executive power appears to be an even more radical attempt to remake the constitutional law of war powers than is often recognized.”

But others—such as Noah Feldman, the newest constitutional scholar on the HLS faculty—warn against reading too many congressional war powers into the Constitution. Feldman has taken issue, for example, with legislation offered by Illinois Sen. Barack Obama ’91 that contained a timetable mandating the withdrawal of troops from Iraq. In a Slate magazine piece posted March 5, Feldman and NYU Law Professor Samuel Issacharoff write: “[O]nce Congress has authorized the president to fight, it has neither the competence nor the authority to tell him which troops should be placed where on the battlefield. Nor can it order him to withdraw particular troops—or particular numbers of troops—by a specified date, as Obama’s proposal, among others, would do.” Finally, they argue, Congress cannot limit the number of troops that may fight, because the tactical essence of war is the decision to place some number of soldiers in a particular place at a particular time.

“To give this power to Congress,” write Feldman and Issacharoff, would “leave the president without true command authority over his forces and the flexibility needed to respond to military exigencies.”

A separate but related question is what, precisely, Congress permitted the president to do when, a week after the Sept. 11 attacks, it passed the Authorization for Use of Military Force (to this day the central statutory enactment related to the war on terrorism). HLS Professor Jack Goldsmith has said that although the statute confers broad authority on the president comparable to that conferred by Congress in declared wars, it also leaves many questions unanswered. In a widely cited 2005 Harvard Law Review article written with Curtis A. Bradley ’88, Goldsmith suggests how courts should read the authorization’s broad language to decide what kinds of executive action the statute does or does not authorize.

The piece was hailed by scholars of various ideological leanings as an important contribution on the authorization. Some, like Professor Mark Tushnet (also writing in the Harvard Law Review), replied that the Goldsmith-Bradley framework, though reasonable, reflects an overly optimistic view of the ability of Congress and the courts to guard against executive branch actions that pose a threat to the basic liberties of American citizens.

Professor Adrian Vermeule ’93, who credits Goldsmith with sparking his own interest in terrorism scholarship, argues against overly hampering executive action during emergencies in a new book, “Terror in the Balance: Security, Liberty, and the Courts” (Oxford University Press, 2007), written with Eric Posner ’91. In times of crisis, the executive’s distinct advantages—such as expertise, decisiveness and secrecy—are valuable, Vermeule argues, whereas the advantages of the legislative branch and the courts, such as deliberation, are less useful. “During emergencies, courts and Congress should defer heavily to the executive and historically have done so,” he told an audience at the American Enterprise Institute recently.

Vermeule’s book adds to the growing terror-related literature by HLS faculty members. In 2002, Alan Dershowitz published “Why Terrorism Works: Understanding the Threat, Responding to the Challenge” (Yale University Press), followed a year later by Philip Heymann ’60, with “Terrorism, Freedom, and Security” (MIT Press). More recently, Heymann has written “Protecting Liberty in an Age of Terror” (MIT Press, 2005) with Juliette Kayyem ’95, who is now the undersecretary of homeland security in Massachusetts (see related story).

Warrantless electronic surveillance

Last year, Rep. John Conyers Jr., the House Judiciary Committee’s ranking Democrat and now its chairman, asked Professor Laurence Tribe ’66 to offer his opinion on the National Security Agency’s warrantless surveillance program, which was carried out without following the procedures established by Congress in the Foreign Intelligence Surveillance Act of 1978. “The presidential program of surveillance at issue here is a violation of the separation of powers—as grave an abuse of executive authority as I can recall ever having studied,” Tribe wrote in a letter to Conyers and the committee. The government’s interception of electronic communications, he wrote, is subject to the control of Congress through a statutory scheme that is “the exclusive means by which electronic surveillance … and the interception of domestic wire, oral and electronic communications may be conducted.”

Tribe’s analysis, Conyers later said, “confirms my suspicions that this is an utterly lawless and unconstitutional [program].”

Another HLS professor, Charles Fried, acknowledged that the surveillance might be legally problematic but added, “I am convinced of the urgent necessity of such a surveillance program.” In a December 2005 Boston Globe op-ed, he surmised that such surveillance involves “a constant computerized scan of all international electronic communications,” and then wrote that if such impersonal surveillance does violate some constitutional norm, “we are faced with a genuine dilemma.”

“If the situation is as I hypothesize and leads to important information that saves lives and property,” Fried asked, “would any reasonable citizen want it stopped? But if it violates the Constitution, can we accept the proposition that such violations must be tolerated?”

Writing on the writ

In a just-published article in the Harvard Law Review, Professors Richard H. Fallon Jr. and Daniel J. Meltzer ’75 offer a sweeping survey of the law of habeas corpus as it relates to detainees seized at home and abroad in the war on terror. To date, no one has produced a more comprehensive primer on the complicated permutations of jurisdictional issues and legal rights that depend on whether prisoners are seized in the U.S. or on foreign soil, whether they are citizens or aliens, whether they are held inside the U.S. or at U.S. facilities abroad, and whether or not the government deems them enemy combatants. Fallon says he hopes the article will be as helpful to practitioners and scholars as the seminal 2002 Yale Law Journal article on military tribunals by Tribe and Georgetown Law Professor Neal K. Katyal, “Waging War, Deciding Guilt: Trying the Military Tribunals.”

Much of the Fallon-Meltzer article, titled “Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror,” focuses on the combined effects of the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. The first eliminated the availability of habeas corpus review—and virtually any other form of judicial redress—for aliens held in military custody at Guantánamo Bay. The second went even further, eliminating habeas and other forms of review for any alien, wherever seized or held, who has been determined by the U.S. government to have been properly detained as an enemy combatant or is awaiting such determination.

In addition to an exhaustive examination of the new legal landscape under the two acts, Fallon and Meltzer offer some assessments of their constitutionality: “We believe that [the] total preclusion of judicial review of challenges to conditions of confinement is unconstitutional,” they write, “because it contravenes a broader postulate of the constitutional structure of which the Suspension Clause forms a part: that some court must always be open to hear an individual’s claim to possess a constitutional right to judicial redress of a constitutional violation.”

Professor Gerald Neuman ’80 and other legal scholars took a similar position recently in an amicus brief filed in the U.S. Court of Appeals for the 4th Circuit in the case of Ali Saleh Kahlah al-Marri, a Qatari student arrested and detained in the U.S. on terror-related charges. The Military Commissions Act’s prohibition of habeas corpus jurisdiction for certain persons “is not limited to a particular span of years or the duration of a particular emergency,” they wrote. “Instead, it decrees a permanent alteration of the federal habeas corpus statute”—which is barred by Article 1, Section 9 of the Constitution, the Suspension Clause.

In June, in a stinging rebuke to the government, a three-judge panel of the 4th Circuit ruled that the act did not bar al-Marri from pursuing habeas relief because he was lawfully in the U.S. at the time of his arrest. The panel decided the case on grounds of statutory interpretation and therefore did not reach the constitutional issue raised in the amicus brief. But the judges noted the persuasiveness of the argument that the act was not a valid exercise of congressional powers under the Suspension Clause.

Last year, while the act was still pending, Professor Martha Minow led an effort to draft and circulate a letter urging Congress not to pass it. The letter was signed by more than 500 law professors nationwide. In it, Minow and her colleagues wrote: “The bill would rob individuals detained by the United States of the hallmark of American freedom, the right of anyone detained by the government to demand to know why and to challenge the conditions of confinement before a federal court.” They also assailed the act for “abandon[ing] our long-standing constitutional protections against punishing people on the basis of coerced testimony and against denying individuals the opportunity to defend themselves through access to exculpatory evidence known to the government,” writing, “These provisions reward and encourage torture, and undermine the fairness of the resulting trials.”

Sen. Patrick Leahy, a Vermont Democrat and an opponent of the bill, cited the letter in a Senate floor debate.

“It obviously didn’t change the outcome,” says Minow, who has written an array of recent scholarly pieces covering coercive interrogation, warrantless electronic surveillance, data mining, the Patriot Act, targeted assassinations, racial and ethnic profiling, and holding soldiers accountable for abusive conduct. “But it did help lay the groundwork for substantive arguments and help create a network of people involved in court challenges to the act.”

Presidential signing statements

The same January week that David Barron testified in the Senate, Professor Charles Ogletree Jr. ’78 testified in front of the House Judiciary Committee, on presidential signing statements. Presidents have issued such statements when signing bills they don’t like but can’t successfully veto, sometimes indicating that they will construe ambiguities in the statutes in ways that may run counter to what Congress intended. Ogletree and other critics have assailed the growing use of these statements as a kind of executive lawmaking in defiance of congressional power. “First, it makes the idea of a veto, the normal legislative process, null and void, when a president does not really bring to Congress’ attention specific substantial objections to laws that are approved by Congress,” Ogletree told the committee. “Number two: Right now, no member of this Congress has any idea where, when and to what extent the president modifies a law that you’ve passed.”

At the time of Ogletree’s testimony, legislators were mulling the possibility of a court challenge to signing statements. But Tribe suggested that a lawsuit would miss the mark. “It’s not the statements that are the true source of constitutional difficulty,” he wrote in The Boston Globe. A legal challenge is not a plausible way of contesting a president’s “manifestly unreviewable decision to sign rather than veto any particular law, however cynical that decision might be and however unconvincing his explanations are,” he wrote.

Far more fruitful, Tribe suggested, would be for Congress to use its constitutional power under the Necessary and Proper Clause of Article I to monitor officials and to make sure they are implementing statutes the way Congress intended.

Judiciary Committee members quizzed Ogletree about why he thought presidential signing statements were objectionable as a matter of law whereas Tribe didn’t. “Professor Tribe … has drawn a distinction between what he saw going on with prior presidents and his concern about the exercise of authority by President Bush,” Ogletree replied, drawing a distinction of his own. “[He] thinks that these are serious transgressions, even though the idea of signing statements, as a matter of law, he does not find objectionable.”


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