“The Law and the President: In an emergency, who you gonna call?”

by Harvey Mansfield, first published in the Weekly Standard

<http://www.weeklystandard.com/Content/Public/Articles/000/000/006/563mevpm.asp>

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The power of the executive to cast a man into prison, without formulating any charge known to the law, and to deny him the judgment of his peers, is in the highest degree odious and the foundation of all totalitarian government whether Nazi or communist.

Winston Churchill, 1943

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THE LAW AND THE PRESIDENT

By: Marc McLaren-Caux, February 2006

The new uncomfortable tension that has arisen in the legality debate is a product of the blurring of the domestic and foreign power boundaries, and a coming together of traditional criminality and warfare at the hands of “terrorism”. Though Mansfield’s assessment of the possibility of executive accountability is implausible, he casts the debate in a light that alerts us to the very real problem of war and criminality. His theory of democratic accountability moreover commits us to the destruction of the Bill of Rights, or at least for those who the public can assign the characterization of “enemy”.

The conduct of foreign affairs has been only moderately constrained by the rule of law. Take, for instance, the two hottest topics in the terrorism and legality debate- illegal wiretapping and detention. In the conduct of wars, we see both intelligence activities and detainment practices which offend to a great deal the standards applied to the criminal and domestic realms. Militaries spy and presumably wiretap enemies in the heat of conflict and are only moderately, if at all, constrained by legality. Detainment of enemies in combat situations likewise offends against legality in the domestic “normal conditions” sense, though some constraints are put on militaries by international conventions and norms. The detention of enemies, according to the ‘Geneva Convention relative to the Treatment of Prisoners of War’, while regulated in terms of living conditions, torture, and so on, is allowed to continue until the end of the “war”.11 Each enemy detainee does not undergo a trial in the regular criminal way.

I am neither trying to advance nor rescind the current practice of foreign affairs, or warfare more generally. I do, however, wish to point out that Mansfield’s article forces us to confront the grim reality that a dichotomy of norms exist, and that they have collided violently together. Few can question the heightened necessity of “the rule of men” in times of war, though we may challenge the legitimacy of particular wars. If this is the case, we must ask ourselves what is different about classical inter-state war and the current war on terror. After all, the organization, tenacity, mission, and capabilities of the current terrorist threats match and perhaps exceed the capabilities of some small states. In many areas, terrorists are a more capable enemy than some states. And yet there seems to be little relevance other than sheer level of threat which separates the “legality”of the conduct of these two worlds; that is, where criminal activity is seen to be manageable within the “rule of law”, foreign affairs is perhaps less constrained due to the overwhelming difficulty of the threat.

Perhaps the idea that the level of threat is the sole characteristic that defines how we perceive the legitimate exercise of power in these two worlds is overly simplistic. But surely it is the guiding characteristic. So we jurisprudes are vulnerable to the characterization of the current war on terror as indeed a war. Unfortunately, in terms of magnitude of threat, the question is probably better left to political scientists who employ metrics and understanding beyond my own abilities. I can say, however, that there is the potential for paradox in the treatment of war and criminality, particularly with respect to the phenomenon of terrorism, and that the rule of law is left somewhere in the balance.

All of this, however, does not mean that Mansfield’s article is without serious problems- and it is. There are two in particular I wish to address, and they both, though in different ways, concern accountability. The first is the link Mansfield contemplates between executive authority and electoral accountability and in particular the supposed compatibility of secrecy and public opinion. The second issue I wish to address is the nature of the accountability Mansfield seeks, and how this undermines the ideal of the rights-based Constitution. This second criticism is more of a “taking of stock”, to borrow an expression from the article, of where the kind of electoral accountability advocated leaves the individual and the fate of the American Constitution.

The view Mansfield develops regarding secrecy and accountability is that: “secrecy and accountability are compatible because... when the people want to hold the government responsible, they end up holding the President responsible”.2 We quickly encounter a difficulty when we wish, however, to have secrecy on the one hand, and accountability on the other- i.e. how can the President be held accountable for secret operations? It is a contradiction in terms- that is, in the very idea of secrecy is non-publicity. But surely if executive power is to be checked by electoral accountability, as Mansfield suggests, it must be coupled with publicity. If we take seriously that the President is above the law in the war on terror though, and entitled to secrecy among other things, it would be to no avail what kinds of restrictions we wish to apply (before or after) to the exercise of arbitrary power (i.e. regarding publicity). This is because the very idea that the President is above the law trumps the idea that we may place restrictions of publicity on his actions. Remember, the point of the long-winded setup I offered to begin with was to point out that legality does not constrain war-engaged activities. And if we cannot guarantee that at the very least the President’s discretionary actions will be publicized, then we cannot guarantee in any serious way that accountability at election time even has a chance, especially with the intricacies of their operations. The people cannot decide on issues for which they have no information, nor access thereto. Secrecy then, and the power to keep secret- vis the extra-legal nature of the “war on terror”- jeopardizes even the possibility of effective electoral control on the executive.

Secrecy and the power to keep secret burden Mansfield’s desire to have effective electoral accountability, particularly regarding details3. I would like to change focus however, and examine the second issue- that is, the nature of the accountability he advocates. While electoral control over the executive is under-privileged by the fact of secrecy, it is likely that the public would have a general sense of what “war” the executive was fighting. Currently in the US the public is aware that the war is on terrorism, though they have little or no understanding of the workings or dealings of the executive. Electoral accountability controls the executive insofar as it makes the ultimate judgment about the war it is fighting.4 This is a more modest and ultimately more accurate understanding of how electoral accountability works- surely the Americans can decide whether or not they want to fight the war on terror, generally. By Mansfield’s logic, since the Americans are aware of the camp at Guantanamo Bay, the re-election of the President affirmed their commitment to keep these enemy detainees. Notwithstanding the fact that elections are contested on innumerably more grounds than what the President did to some Arab for instance, three years ago, are we to have the masses decide whether or not the detention of individuals without a trial is appropriate? If we could isolate the case (illegal detention), should we even care what the majority thinks of the President’s treatment of certain groups? If we allow an election- even a plebiscite- to decide the fate of individuals or groups of individuals in this manner, are we not throwing away the most fundamental underpinnings of the Bill of Rights?

As I said, this problem was more of a taking of stock. We could, perhaps to Mansfield’s advantage, re-phrase the issue in this way: should the majority decide when we are in a war? The reason I spent so long detailing what I found to be the most fundamentally difficult issues in determining which of the two powers (i.e. war/foreign affairs type, or criminal/domestic type) should have domain over the terrorism issue was precisely because if we accept the dichotomy we are forced into this uncomfortable position. The latter possibility, having the public decide when we are in war, seems to be a more defendable way of phrasing the problem. And yet it amounts to basically the same issue as whether or not the public can essentially “veto” the rights or certain individuals or groups through majority vote. We can formulate the problem as this- that Mansfield is advocating for system where the general population can decide which “spheres” the constitution applies to; or more accurately, which spheres the public will passively allow the executive to cast out of protection. What is next? The war on drugs, the war on organized crime, or simply the war on crime itself? We must take stock of what this position amounts to- the re-ordering of power within the US, from constitutional government to God knows what.

In a topic so complex I offer no easy answers. Though Mansfield’s argument for the possibility of executive accountability is suspect, the root of the problem remains. If the different norms governing wars are built upon the assumption of level of threat, there is little reason to believe that such norms are not equally applicable to terrorism, even though this phenomenon shatters the domestic and foreign, enemy and criminal, and war and crime distinctions. If we seek a system of electoral accountability that enables the labeling of certain threats exempt from constitutional protection, we endanger the very basis of the Bill of Rights- the bulwark of the rule of law- to any whimsical attempt to define the next “war”.