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The Bush Presidency and Power:
The Guantanamo Cases, the Cheney Case, and the 9/11 Hearings

Thursday, Apr. 22, 2004

There was a time--now ancient history--when the Republican party swept into power on a platform of limited federal government. But that was before they gained control in the White House and the Congress.

Over the past few years, the Bush Administration has aggressively pushed the limits of its executive authority. But that is a statement of fact, not a conclusion about the constitutionality of those actions.

Now, the Administration's forceful tactics are being challenged and reviewed on several fronts -- a sign that the U.S. Constitution is alive and well. In two high-profile Supreme Court cases, the Supreme Court will decide whether or not actions taken have been constitutional, and the Administration will doubtless abide by its decision.

Meanwhile, Administration actions are also being assessed by a different type of review board--the 9/11 Commission. There, the Administration is having to defend its decisions immediately preceding and following 9/11 -- with probing questions raised about its views of Saddam Hussein, and the necessity of going to war with Iraq.

The Guantanamo Bay Cases: How Broad Are Presidential War Powers?

This Tuesday, April 20, in oral argument at the Supreme Court, the Administration argued that it had the power to detain thousands of non-U.S. citizens indefinitely at its Guantanamo Bay facilities -- without recourse to judicial review of their detention. Detainees' family members had brought a lawsuit challenging this power.

The Guantanamo Bay cases--Rasul v. Bush and Al Odah v. U.S. -- implicate constitutional separation of powers issues. The question they raise is this: Just how broad is the President's power to take an emergency action in the context of waging war -- in this case, the war on terror?

The detainees' families seek judicial review of the reasons for their detention. Some detainees claim they are innocent of participating in the war of terror against the United States, and should be able to prove as much in a judicial proceeding through a habeas corpus petition. None has been charged with a crime or designated as a prisoner of war, and therefore all occupy a sort of no-man's land in the war on terror.

The Administration says that is permissible -- for this is war. It urges that the war on terror is a particularly difficult war to wage, and therefore, it argues, it must have the power to hold detainees at Guantanamo, and off American soil, without permitting them recourse to the courts, or the releases that might follow such access. (There is no debate that if the detainees were on U.S. soil, habeas corpus relief would be available.)

A prior Supreme Court case, Johnson v. Eisentrager -- which involved 21 German citizens who were held outside the United States and denied habeas corpus relief -- provides some precedent for the Administration's argument. But the parties to the case dispute whether and how it is applicable.

Oral Argument Revealed the Court Views The Guantanamo Case as Difficult

Which side will prevail?

Generally, war is an arena where the Constitution grants Presidents broad power to conduct operations, and the courts are inclined to defer to those decisions. It is a matter of institutional competence--on these issues, an Administration typically knows considerably more about national security needs than the courts.

Indeed, a number of the Justices expressed concern about what, exactly, the judiciary would, or could, do if it were to hear the detainees' habeas corpus requests. There is no precedent for the courts to do what the detainees' families request -- to review the reasons for which they were detained, to assess whether those reasons are based in fact, and then presumably to free the ones the courts find innocent.

Thus, the courts would have to build from the ground up a habeas corpus doctrine for the detainees in the context of a war on terror. In habeas corpus, federal courts typically review proceedings in a trial in a U.S. federal or state court -- not facts surrounding a detention that occurred abroad in the context of armed conflict.

Yet, the Court's questions showed that it will not reflexively defer to the Administration simply because a war is on. Thus, the oral argument made it clear that the Court believes this is no easy case.

Various members of the Court -- including Justices Ginsburg, Souter, and Breyer -- expressed concern about the extreme nature of the Administration's position -- suggesting that the Court may be uneasy about simply giving its blessing to the Administration's actions. The Administration has drawn a bright line -- broad power; no judicial review -- but Justice Scalia was the only Justice who plainly and wholeheartedly embraced that view

It is impossible to predict the outcome here with any certainty. Each side asks the Justices to make broad precedent in a legal no-man's land. The Court's been offered a rather unappetizing choice between unprecedented executive power, and unprecedented judicial review. Unsurprisingly, the oral argument showed a Court split on the issue. The Court's choice between deference and intervention will not be an easy one.

The Cheney Energy Task Force Case

Second, there is the Cheney case -- more famous now for Justice Scalia's decision not to recuse himself, than for its own facts. There, the Administration asserts that it need not hand over notes of meetings held by Vice President Cheney with energy industry higher-ups.

The Cheney case presents another separation of powers question: Can the courts force the Vice President to reveal with whom he met during meetings of his Energy Task Force?

Unlike in the Guantanamo Bay cases, however, the exercise of executive power is not being justified on national security grounds, but rather executive privilege -- the doctrine that the executive branch may shield at least some of its decisionmaking from prying eyes in order to ensure that the executive has the latitude to get the advice it needs.

Cheney was widely criticized for including only energy industry higher-ups in the meetings and excluding environmentalists. As a result, the Sierra Club and Judicial Watch sued to force Cheney to release the names and positions of those who attended the task force meetings.

In the proceedings below, U.S. District Judge Emmet Sullivan ordered Cheney to produce the notes from the task force. The appeals court affirmed that decision. But Cheney was granted Supreme Court review, and thus has yet to turn over the notes.

Now, the Supreme Court must decide whether the Vice President has an executive privilege covering the papers. The Administration has argued that, if he does not, then in the future, meetings including the Vice President will doubtless occur in a more guarded environment -- with the quality of the advice given watered down substantially due to the knowledge of later disclosure.

That is a potent argument, but not a slam-dunk. In Clinton v. Jones, the Clinton Administration argued that the President should be allowed to assert executive privilege against being hailed into state court on sexual misconduct charges. The argument was that the President should not have to be bothered with such a distraction.

But the Supreme Court, rightly in my view, held that a President is just as subject to the laws of the United States and the states as any other citizen. That is what distinguishes a President from a monarch, after all.

Some have read the opinion to eviscerate executive privileges, some have read it as a disaster for the operation of the Presidency, but it remains an open question whether it will have any affect on this case at all.

The 9/11 Hearings: Systemic Reform Will Not Be Enough

Of course, even as these momentous cases are pending at the Court, the 9/11 hearings have been scrutinizing the decisions of the Bush Administration leading up to that horrific day.

Some have argued that we should not waste our time second-guessing past decisions when so many other pressing issues exist right now. But these critics miss the fundamental need for these hearings: The need to make accountable all those who failed to deter the terrorists.

The Framers were fundamentally convinced that the key to the republican form of government they concocted was a ready supply of "virtuous" men to hold positions of power. We might today call them "heroes." But the hearings are showing that we had a dearth of heroes when it comes to 9/11.

The hearings have demonstrated, sadly, how no one saw beyond his or her bureaucratic or government window to the larger threat before the terrorists could attack. Congress did not perceive the need to fund the CIA and the FBI in ways that would make them battle-ready for the war being launched against us. The agencies did not cooperate with each other because of turf-guarding, and entrenched institutional forms. The Presidents -- both Clinton and Bush -- failed to see through the morass of information with which they are presented, to the terror forming within our own borders.

The only answer for such failures is to assign blame, reform the system, and move on. The problem with the Commission to date, though, is that it appears more focused on reforming the system, surely a good thing to do, than it is on pointing fingers and finding humans responsible for their actions.

For our Executive Branch to be trusted -- and trustworthy -- it must hold individuals personally accountable for the way they handle power. Power without accountability is tyranny. Thus, to the extent that the Commission takes a pass on naming names, it will not only disserve the U.S.'s national interests, it will also disserve our fundamental freedoms.

If this Administration carries on with the same roster after these hearings, it makes the mistake of elevating loyalty above the need for great persons to fill terribly difficult jobs. There is a crying need for this Administration to acknowledge that people run this government, and some of them were inadequate in the face of the growing terrorist threat. If the United States were a corporation, every head would have rolled after 9/11. Would that the market's discipline could be translated into the accountability necessary to make the government better than it already is.

Our Constitution so carefully balances, separates, cabins, and limits government power. In this system, it is an insult to the American People to refuse to hold those in government accountable for the carefully delimited power that it is their duty to exercise.

In the end -- though the Commission's recommendations may disappoint -- the system is working. An aggressive President is exercising what power he has in difficult times, and he is being challenged for the exercise of that power in multiple fora. The Supreme Court will draw limits, and the President will doubtless abide by them -- and those limits will be rooted in our Constitution.

Just after 9/11, in a previous column I wrote an open letter to Osama bin Laden from the United States Constitution, saying that he would have to take it on, to win the war he started. I'm happy to report that he is losing.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University. Her email address is

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