47:5 The Price of Purity: Weakening the Executive Model of the United States’ Counter-Terror Legal System



On September 11, 2001, men with box cutters and a dark vendetta against the United States left Americans’ sense of national safety and security irreparably shattered. In the wake of the attacks, the United States and other western democracies naturally sought to adapt their legal systems so they would be better equipped to combat and prevent terrorism. In practice and design, the schemes of anti-terrorism law that have developed since 2001 have largely followed two models: the legislative model and the executive model.

The legislative model describes those counter-terror legal systems that derive authority from “special legislation establishing concrete rules and specific powers” that articulate and authorize counter-terror policies and procedures. The executive model describes those legal schemes “based not only on powers expressly recognized by legislation, but also on the powers of the executive branch, as defined by the Constitution or by very broad legislative authorizations.”

The executive model can be further deconstructed into its “pure” and “weak” forms. The “pure” form of the executive model considers unilateral executive action authorized by those powers constitutionally allocated to the executive branch. The “weak” form requires a transfer of power from the legislative branch to the executive through sweeping legislative authorizations of executive action while “leaving normative choices to the executive.”

The legislative and executive models of counter-terror legal schemes are not mutually exclusive. They frequently overlap or change depending on the overarching political systems within which they function and the specific situations to which they are applied. The distinction between the two models, however nebulous it may be, helps illustrate the choices political leaders have when deciding what anti-terrorism measures should be taken and how they should be implemented.

The United States’ legal response to national security emergencies has traditionally been consistent with a pure/weak hybrid form of the executive model as evidenced by the nation’s history and constitutional design. The Bush Administration’s assertions of executive power in the wake of the September 11th attacks, however, shifted U.S. national security policy decisively toward the pure form of the executive model. The creation, enforcement, and survival of detention policy during and after the Bush years well illustrate how the Administration harnessed independent executive powers to effectively cut the Court and Congress out of the War on Terror.

This Comment examines the Bush Administration’s active expansion of presidential power through the lens of detention policy between 2000 and 2008, explains how these policies rendered the U.S. counter-terror legal system consistent with the pure form of the executive model, proposes the redirection of counter-terror policy toward a system that more closely resembles the weak form of the executive model, and analyzes the changes the Obama Administration has made to detention policy in light of this proposed transition. Part II outlines the evolution of conflict between the courts and the President regarding the extent of executive emergency power. Part III examines the Supreme Court’s struggle to preserve checks and balances after the September 11th attacks through litigation surrounding the treatment of War on Terror detainees, while the Bush Administration and a compliant Congress siphoned tremendous power to the executive branch in the name of national security. Part IV analyzes the risks associated with operating the counter-terror legal scheme within the pure form of the executive model and considers ways to scale back executive power while retaining the flexibility the President needs to effectively address post-9/11 national crises. Part V examines detention policy under the Obama Administration in terms of this proposed transition, and concludes the new President intends to continue his predecessor’s practice of using independent executive powers to commandeer a counter-terror legal system increasingly based on the pure form of the executive model.