"War Model" of Dealing with Terrorism Remains Strong Under Obama

By Brian McNeill

In the decade since the September 11 terrorist attacks, the U.S. government has adopted a “war model” in its legal approach to dealing with terrorism that remains strong today, a panel of professors said in a Law School discussion, “9/11 and the Law—10 Years Later.”

The group included Curtis Bradley of Duke Law School and Virginia Law professors David Martin, John Harrison, Tom Nachbar, and Paul Stephan ’77.

This development is backed in large measure by both political parties and all three branches of government, said Bradley, a former counselor on international law in the State Department’s Office of the Legal Adviser, as well as a former Virginia Law professor. He believes there has been a fairly high and surprising degree of continuity between the approaches of the administrations of George W. Bush and Barack Obama.

Much like the Bush administration, he said, the Obama administration has repeatedly supported the power of the military to indefinitely detain those associated with al-Qaida, the Taliban, and affiliated groups, regardless of whether the detainees were captured on a traditional battlefield. Both administrations backed the legality of military commission trials for suspected terrorists. And the Obama administration, similar to its predecessor, has resisted the extension of habeas corpus rights to military prisoners in Afghanistan.

“It would be an overstatement to say there are no differences between the administrations,” Bradley said. “I think some of them are largely cosmetic. For example, the Obama administration very early said they were going to change the name of these detainees to ‘unprivileged enemy belligerents’ rather than ‘enemy combatants,’ but apparently with no change to the outcome for any of them.”

In fact, he noted, the Obama administration has been more aggressive in some ways than the Bush administration, notably ramping up targeted killings of suspected terrorists.

One key difference between the administrations, he pointed out, is that Obama has more clearly repudiated torture. Another notable potential difference would be the closing of the Guantanamo Bay detention facility, which Obama has promised to do. “Obama’s lawyers have maintained that it is lawful,” he said. “And in addition they have many more detainees in the comparable facility in Afghanistan and they certainly maintain the legality of that.”

Congress, Bradley said, has not specifically regulated military detention, but did adopt a broad use-of-force statute in the aftermath of 9/11 that the U.S. Supreme Court interpreted as a detention statute, and lawmakers have not resisted that interpretation. Congress also has passed two statutes regulating and allowing military trials for alleged terrorists, he said.

To a certain extent, even the courts have supported the war model, Bradley said.

“The Supreme Court is quite aware of what’s been happening in terms of detention and military trials over the last 10 years,” he said. “So its very lack of decision-making in this area, and its denial of review, in effect has allowed—as it well knows—for an indefinite military detention system to be in place. So its inaction is in fact an action.”

Martin, who served as deputy general counsel of the U.S. Department of Homeland Security throughout 2009 and 2010, reflected on human rights and civil liberties violations in the nation’s response to 9/11.

The Patriot Act, he said, was helpful in many respects, as it modernized wiretap and phone surveillance laws, while keeping surveillance of U.S. citizens under judicial supervision. It also enhanced tools available to deal with “lone wolf” terrorists and tightened border screening.

At the same time, he said, the law raised concerns over its surveillances provisions, as well as its authorization of “national security letters” that permitted law enforcement agencies to obtain certain documents without judicial scrutiny.

Martin added that the Patriot Act was proposed openly and marked up by Congress, which added a number of protections to its provisions.

“Even in those days, Congress was not a rubber stamp,” he said.

The greatest civil liberties concerns came after the Patriot Act, Martin said. These notably include the military commission order signed by Bush on Nov. 13, 2001, which set up a process for establishing military commissions to try individuals deemed enemy combatants. The process, he said, appeared to bar all judicial review, seemed to limit hearing rights and allowed convictions by two-thirds of the jury, even in capital cases.

“What was wrong was not going to the war model, but the particular kind of war model that the administration adopted,” Martin said. “A state of war does bring into play a different set of rules … It’s not the absence of rules altogether.”

Harrison, a former deputy assistant attorney general in the Department of Justice’s Office of Legal Counsel, addressed the issue of “inherent executive authority.”

The executive branch operates within a legal environment “that both empowers and constrains the executive branch and is not made by it, but rather is made through various mechanisms of lawmaking—constitutional and statutory,” he said.

In the wake of 9/11, he said, the Bush administration invoked its executive authority in its decision to take steps that conflicted with the law, such as bans on torture. Under the argument, he said, a commander in chief is authorized to make tactical decisions during a time of war, including such measures as enhanced interrogation.

“If a president has a certain amount of tactical authority, suppose he decides that some interrogation technique has to be used in order to achieve a military goal,” Harrison said. “It’s a very specific decision that under these circumstances, on these particular set of facts, it is necessary in order to win the war to take some step that is contrary to statute.”

Harrison, however, said he believes that argument is incorrect, based on the separation of powers.

“It doesn’t reflect the kind of tactical judgment that perhaps only the president can make,” he said. “Rather it is general, it is perspective, and it reflects wide-ranging considerations—the kinds of considerations that are appropriate exercises of the legislative, and not the executive, power.”

Nachbar, a judge advocate in the U.S. Army Reserve and a civilian senior adviser for the U.S. Department of Defense’s Office of Rule of Law and Detainee Policy, discussed the role of the courts in the war on terror.

Intellectual clarity between law and war is critical, he said, but has been “steadily undermined by virtually every actor in this arena, and courts are especially liable.” We must be wary about undermining the rules that govern war, he said.

“The basis for claiming a right to engage in a war is a mixture of complicated, substantive, and institutional ones, none of which match well to the notions of due process that are likely to be at the heart of any Article III court decision about whether or not the executive can continue to detain someone at Guantanamo Bay,” Nachbar said. “Having courts insert themselves into determinations will necessarily muddle the justifications, potentially displacing one set of justifications underlying the law of war with a set of justifications that courts are already comfortable with, namely those surrounding concepts of due process.”