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The Great Legal Paradox of Our Time: How Civil Libertarians Strengthened the National Security State

When Michael Ratner argued in a February 2002 lawsuit that British citizen Shafiq Rasul had a legal right to challenge his detention at Guantanamo Bay, there was little reason to believe he and his colleagues at the Center for Constitutional Rights (CCR) would play any role in shaping America’s national security landscape. The country was still seething with anger over the attacks of 9/11, and longing for revenge. The few legal precedents that existed were not very encouraging. (“Never in American history had the [Supreme] Court tried in any way to interfere with a war in progress,” noted Arthur Schlesinger Jr. in The Imperial Presidency.) And the Ratner-led CCR was a far-left legal advocacy organization—the group had previously represented the Attica rioters, the Chicago Eight, Nicaraguan contras, and assorted other “violent radicals, Communist front-groups, cop-killers, and sworn enemies of the United States,” in the words of conservative critic Marc Thiessen—that had few friends in the Washington, D.C. establishment.

And yet, a decade later, it’s now clear that Ratner and progressive activists like him have had an outsized impact on national security policy—though not exactly the one they would have wished. CCR would win landmark Supreme Court cases that challenged executive authority. But those achievements came at an unexpected price: They ultimately helped cement the political and legal consensus in support of the counterterrorism policies that emerged at the end of the George W. Bush administration, and they enabled Barack Obama to continue those policies. By successfully challenging the government’s authority, Ratner and his friends mostly ended up strengthening it. In that irony lies the most important constitutional lesson of the last decade.

BY JUNE, 2004, Ratner’s hail-mary lawsuit had produced a famous Supreme Court victory. That month the Court set off on a new course in American history by holding that Rasul and every other detainee at GTMO could challenge in court “the legality of the Executive’s potentially indefinite detention.” The Rasul litigation led the Bush administration to tighten its detention standards and contributed to the discharge of 308 detainees from GTMO. More broadly, as Justice Antonin Scalia predicted in his dissent, the decision precipitated the projection of “the cumbersome machinery of our domestic courts into military affairs.”

It was a high-profile win, and the antiestablishment activists at CCR were soon bombarded by pro bono offers from hundreds of attorneys, including many from America’s most elite law firms. These lawyers—who came to be known as “the GTMO Bar”—quickly flooded federal courts with habeas corpus petitions from detainees seeking release. That initiated a series of convoluted legal and political battles that ultimately seemed to affirm their efforts. Congress enacted laws in 2005 and 2006 that extinguished habeas corpus rights and replaced them with a system of military and judicial review. But the Supreme Court, in the summer of 2008 in a case called Boumediene, declared that habeas corpus must apply to GTMO as a matter of constitutional law. It was the first time that the Court had invalidated a wartime measure that had the support of Congress and the President.

In the heady days after Boumediene, Ratner and his colleagues, the momentum on their side, assumed that the GTMO detentions would not survive judicial review. They grew more confident when former constitutional law professor Barack Obama—who as a candidate had campaigned against George W. Bush’s counterterrorism policies, and who had received an endorsement from 70 members of the GTMO Bar—was elected president. Some at CCR predicted that the Guantanamo Bay facility would be closed within the year. “Rule of law, baby!” they shouted on Obama’s inauguration night.

We now know that things would not turn out as the GTMO Bar hoped. Ratner and his colleagues overestimated the civil libertarian commitments of Barack Obama and misunderstood how the burdens of the presidency would affect his judgment. They also underestimated the breadth and depth of the legal consensus in favor of executive authority.

Two months after Barack Obama’s inauguration, his administration filed its first brief in a constitutional habeas corpus case from GTMO. To Ratner’s astonishment, the brief argued for a broad power of indefinite military detention over GTMO detainees. “We really thought that Obama wouldn’t fight us in court on the rights of the detainees, that he would get the detainees either to another country or he would charge and try them,” Ratner later said.

But Obama did fight them. An administration task force determined that—as the Bush administration had long argued—few of the GTMO detainees (fewer than forty) could be brought to trial and that many of the rest remained dangerous. And Obama’s responsibilities as Commander in Chief caused him to see the dangers in a new light. Faced with these twin realities, and newly appreciative of congressional and judicial authorities established after 9/11, the administration decided it must defend military detention without trial at GTMO before the lower courts.

The subsequent court cases subverted the civil libertarians’ once-high hopes. The most important principle to emerge from them is that the President can, as the Bush and Obama administrations have claimed, detain without trial Al Qaeda and Taliban members, including those captured outside Afghanistan, “until hostilities cease.”

TO BE SURE, in affirming this authority, the judiciary placed procedural and evidentiary requirements on it, and in the process established what Judge Stephen Williams described as “an entirely new role [for the federal judiciary] in the nation’s military operations.” These new judicial requirements are certainly not trivial, and some are burdensome. And they have had an impact on the behavior of the government. Though courts approved most government detentions between 2009 and 2011, they did grant habeas relief to detainees in fourteen cases that the government did not subsequently challenge, a number that amounts to almost a quarter of the habeas cases then brought by GTMO detainees. The government also released others because it believed that in those cases they could not meet the detention standards announced by the courts.

The courts’ influence extends beyond GTMO to the battlefield. By ruling on who could and could not be detained, the courts have effectively defined the scope of the global conflict with Al Qaeda under the 2001 congressional authorization of force. When Obama administration lawyers determine how far they can go in targeting terrorist threats—especially threats outside the traditional battlefield in places like Yemen and Somalia—they are guided in part by the analysis and basic restrictions in these cases. They are also guided by these sources in their detention operations in Afghanistan.

In these and other ways, the judicial review established by Ratner and CCR have had a constraining impact on the President, his senior national security advisers, and soldiers in the field. So why are civil libertarians disappointed in these results? It’s not just because the courts’ decisions have been less than absolutist. It’s also because the constraints that the courts have imposed have actually served to empower the government. “Our opinion does not undermine the Executive’s powers as Commander in Chief,” asserted Justice Kennedy in his opinion for the Supreme Court in Boumediene. “On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch.”

The burdens imposed by the Boumediene decision and the other landmark Supreme Court decisions in the last decade have been accompanied by judicial and legislative approval for some extraordinary presidential powers in the long war against terrorists. It is a remarkable fact that in the eleventh year of the “war on terrorism,” the administration of Barack Obama is detaining 170 or so terrorists at Guantanamo Bay without charge or trial, is prosecuting some of these detainees in a military commission, and is detaining almost 2,000 more in Afghanistan.

These practices remain controversial in some quarters, and are not what the Obama administration set out to do. But there is no doubt that they are now lawful and legitimate practices within the American constitutional system. This is partly a result of the lawsuits. And it is partly because Congress often sided with the president (albeit with restrictions) when it was forced to exercise its national security responsibilities. The presidency was empowered to exercise its military prerogatives because the other branches of government considered the matter and, with caveats, told the President he could. Crucially, and in part as a result of deliberations in Congress and the courts, the executive branch’s prosecution of the war on terror today enjoys the widespread support of the American people.

THESE ARE PAINFUL FACTS for Ratner and his activist colleagues to acknowledge. Their lawsuits and campaigns achieved much in the decade after 9/11, much more than they expected. They built up a global social movement of activists, lawyers, foreign governments, and the media, to bring habeas corpus rights to GTMO and to pressure the government to release all but the most dangerous prisoners there. “Obviously, getting six or seven hundred people out of Guantanamo out of the nine hundred was a huge accomplishment,” notes Ratner. He and his colleagues, he says, “have also taken on what I consider the most egregious aspects of what I call the national security state since 9/11, and made them public debating issues.” By making the issues matters of public debate, they ensured that the courts and Congress and the American people had to engage in the issues, and to address them.

But the bitter reality for Ratner and his colleagues is that because the courts, Congress, and the American people do not share their outlook, the United States has arrived at a place in 2012 where the activists desperately did not want it to be. The GTMO Bar won landmark Supreme Court decisions on due process for detainees, on habeas corpus, and on the limits of presidential power over military commissions. And yet stepping back from these battles, Ratner believes that he and his colleagues lost the war. “We lost on the enemy combatant issue, and the definition. We lost on the preventive detention issue, more or less. We lost on the military commission issue, more or less.”

They lost on these issues because while the courts and Congress imposed constraints on these traditional practices by the Commander in Chief, they also affirmed the general legitimacy of the practices. The efforts of the other branches of the government placed these practices on a much firmer foundation than they were during the early unilateralist era of George W. Bush. The foundation became firmer yet because it was embraced, albeit grudgingly, by the administration of Barack Obama. “My problem is that when you have a Democrat doing it as well as a Republican … both the good and the bad becomes embedded in the rule of law,” says Ratner.

Ratner thinks that military detention, military commissions, and many other wartime prerogatives of the Commander in Chief are unnecessary, immoral, or illegal. But for those who disagree with Ratner on these points—for those who believe that the terrorist threat remains real and scary, and that the nation needs a Commander in Chief empowered to meet the threat in unusual ways—embedding these presidential prerogatives in the rule of law is an enormous blessing. It is a blessing, ironically, for which the nation has Michael Ratner and his colleagues to thank.

THE EXPERIENCE OF Michael Ratner and CCR is typical of the way that checks and balances have operated in the first decade of the indefinite war against Islamist terrorists. Many institutions have risen to check the power of the presidency. Some of these institutions—Congress, courts, and the press—are ones the framers expected to push back. Others—like globally networked human rights organizations and watchdogs inside the executive branch—the framers could not have imagined.

Nearly every national security institution, and every critic and watcher of these institutions, believes it is on the losing end of the stick in trying to influence U.S. counterterrorism policies and their associated accountability mechanisms. The Bush and Obama White Houses did not get the different things they wanted on GTMO and civilian trials, just as Michael Ratner and CCR did not get what they wanted on GTMO and civilian trials. Conservatives believe Ratner and the CCR achieved illegitimate victories in the Supreme Court that hamstrung the President. Ratner thinks he won some battles but lost the war. Congress pushed back on the presidency in novel ways, but it tried to go further, against both Bush and Obama, and failed. The press uncovered an astonishing array of classified national security secrets in the last decade, but it thinks the executive branch hoards too many secrets and unduly harasses journalists. The executive branch thinks leaks harm national security, and that it should crack down more on journalists and their sources. National security lawyers think they are besieged bastions of independence holding the executive branch in check; activist and media critics believe the lawyers are apologists for executive power. Lower court judges are unhappy that the Supreme Court dumped on them the duty to make terrorist detention policy from whole cloth in habeas corpus cases, and are frustrated that Congress has not stepped in more to fill the void. Some critics charge that these judges have released too many GTMO detainees; others charge that they have released too few. And so on, and so on.

This is how the country has moved, in fits and starts, toward a consensus legal infrastructure for national security policy. And in broad outline, and adjusting for modern circumstances, the process is one that James Madison would recognize. Madison believed that a properly designed government “would check interest with interest, class with class, faction with faction, and one branch of government with another in a harmonious system of mutual frustration,” as Columbia historian Richard Hofstadter put it in his classic 1948 book, The American Political Tradition. This is the system we have groped toward in the last decade, a system that preserves the framers’ idea that the executive branch should be legally and politically accountable to law and to the American people. Civil libertarians played a big role in getting us to this place, even if they did not get all they wanted.

Jack Goldsmith teaches at Harvard Law School and is a member of the Hoover Institution Task Force on National Security and Law. This article is adapted from his new book, Power and Constraint: The Accountable Presidency After 9/11.