It is true that very few detainees have been released from Guantánamo as a direct result of a court order. In fact, the Obama administration has had a 100 percent success rate in appeals of district court decisions granting habeas relief to detainees; one could therefore say that no one has actually been released by court order. But with or without release orders, it was litigation that brought about virtually every change for the better at Guantánamo. Before the Supreme Court agreed to take up the Guantánamo cases, the Bush administration position was that all the detainees were the “worst of the worst,” that none deserved any hearing of any kind, that their identities were a secret, that lawyers could not contact them, and that the detainees could be subjected to cruel and inhuman interrogation as a matter of “military necessity.”
Once the Supreme Court agreed to hear the first Guantánamo appeal, in November 2003, everything changed. Suddenly the administration began providing hearings for detainees, and identifying who was held there. Lawyers were eventually allowed to represent the detainees. And ultimately, the Bush and Obama administrations released over 600 of the 779 men once held there. None of that would have happened without litigation, which impelled the executive to clean up its act in order to appear more reasonable in court, and focused international attention on the legality of the camp practices. When lawyers were able to get to the clients and to tell their stories, public opinion changed dramatically. So while it is true that public opinion and international pressure, more than formal legal decisions, were crucial in prompting change at Guantánamo, litigation was the catalyst. Legal claims provided the rallying point for political demands, and together law and politics effectively checked the president. Posner and Vermeule’s formalist focus leads them to dismiss the litigation, the central act in this ongoing controversy, as a mere “sideshow.”
Posner and Vermeule’s most novel—and least persuasive—claim is that diminished legal control of executive power need not concern us because political constraints are enough. As they put it, “liberal legalism’s essential failing is that it overestimates the need for the separation of powers and even the rule of law.” They maintain that we don’t need the rule of law because we have what one might call the “rule of politics.” Presidents must always worry about the next election. And because effective leadership demands credibility, presidents will voluntarily limit themselves in order to buttress their legitimacy (by appointing Cabinet officers from the other party, establishing independent commissions, etc.). Thus, even if the modern president is free of legal limits, he is sufficiently constrained by politics.
But while Posner and Vermeule adopt a highly skeptical position toward legal constraints, they substitute blind faith for critical analysis when it comes to assessing political forces. There are many reasons to doubt the effectiveness of political limits on executive abuses—most of which Posner and Vermeule do not even mention. First, and most fundamentally, while the democratic process may be effective in protecting the majority’s rights and interests, it is not well suited to protect the rights of minorities even in ordinary times. In periods of crisis, moreover, the executive nearly always selectively sacrifices the rights of foreign nationals, often defending its actions by claiming that “they” don’t deserve the same rights that “we” do.4
Democracy did nothing to protect foreign nationals rounded up in the Palmer Raids of 1919–1920, Japanese nationals or Japanese-Americans interned in World War II, or Arabs and Muslims detained in the months following September 11. To say that the rule of law is superfluous because we have elections is to relegate foreign nationals, and minorities generally, to largely unchecked abuse.
Second, the ability of the political process to police the executive is hampered by secrecy. Much of what the executive does, especially in times of crisis, is secret, and even when aspects of executive action are public, the justifications often rest on grounds that are asserted to be secret. Courts and Congress have at least some ability to pierce that veil and to insist on accountability. The public does not.
Third, the political process is a blunt-edged sword. Presidential elections occur only once every four years, and necessarily encompass a broad range of issues. Elections are therefore unlikely to be effective at addressing specific abuses of power. Even on a single issue, voters’ general concerns about unilateral executive warmaking might conflict with their specific support of President Obama’s intervention to defend the Libyan opposition to Qaddafi. There is no guarantee that they will make clear distinctions in their minds about such matters, much less in their voting patterns.
Fourth, the political process is notoriously focused on the short term, while issues of executive power are generally long-term in nature. It was precisely because ordinary politics tends to be short-sighted that we adopted a constitutional democracy. The US Constitution identifies those values that society understands as important to preserve for the long term, but knows it will be tempted to sacrifice in the short term—such as the rights of the criminally accused, minorities, and dissenters. If ordinary politics were sufficient, we would not need a constitution in the first place.
Fifth, democracy in the United States is deeply corrupted by the concentration of wealth.5 As Louis Brandeis wrote, “We may have democracy, or we may have wealth concentrated in the hands of a few, but we cannot have both.” Posner and Vermeule celebrate economic well-being as a bulwark against dictatorship, noting that a well-to-do and educated citizenry is often correlated with democracy. But a political process that demands large-scale fund-raising and expenditures by its elected officials, and places few meaningful limits on money’s influence on our representatives, can hardly be relied upon to effectively check the abuse of power. Such a democracy might be quite sensitive to the rights of the privileged, but since when have the privileged been the target of executive abuse? If, as is more likely, the victims of executive overreaching are likely to be the less advantaged, the democratic process is an inadequate safeguard.
In short, Posner and Vermeule treat politics much like some classical economists treat the market—as a self-regulating mechanism that magically arrives at the right answers. But just as an unregulated market is vulnerable to all sorts of abuse, so is an executive constrained only by the “invisible hand” of politics. Posner and Vermeule reserve their strongest criticism for what they call liberalism’s “tyrannophobia.” They argue that concerns about the executive becoming a dictator are overblown, irrational, and counterproductive, because they lead the electorate to deny the executive the discretion it needs to be effective.
But this is a straw man. The liberal concern is not limited to dictatorship, but extends much more broadly to abuse of official power, the targeting of minorities and other vulnerable groups, and the violation of human rights. While the United States is far from the brink of dictatorship, it is not irrational to be concerned about abuses short of tyranny that are nonetheless grave. United States presidents have locked up over one hundred thousand people because of their race (FDR); dropped two nuclear bombs on Japanese cities, instantly killing between 80,000 and 140,000 innocent civilians (Truman); prosecuted activists merely for speaking out against a war (Wilson); carried out a witch hunt affecting millions based on overheated concerns about loyalty (Truman); illegally financed guerrilla warfare against another sovereign nation in the face of congressional prohibitions (Reagan); and authorized torture and cruel treatment as modes of interrogation (Bush). Such actions cannot be disregarded merely because the presidents were not dictators.
Despite its limitations, Posner and Vermeule’s book underscores a critically important point about modern constitutional democracy. The executive, if not “unbound” by law, does have an increasingly powerful hand. The separation of powers as originally envisioned is unrecognizable today. Moreover, while political checks are not sufficient to restrain presidential abuse, they are certainly necessary, and under certain conditions can be effective. As I have recently argued, it was civil society, more than the courts or Congress, that compelled President Bush to curb many of his assaults on fundamental principles of law and human rights following the terrorist attacks of September 11.6
But what was essential to the political pressure that forced President Bush’s hand was its substantive content—its demand that the Bush administration abide by the rule of law. Posner and Vermeule’s mistake is to assume that the “rule of politics” can replace the “rule of law.” Politics standing alone may facilitate abuse as much as check it. Consider the lynch mobs in the US, or the Nazi Party in Germany. What we need if we are to check abuses of executive power is not just any politics, but a politics that champions the rule of law. And as the record at Guantánamo illustrates, that type of politics will often coalesce around a distinctly legal challenge, objecting to departures from distinctly legal norms.
Congress’s own actions made it clear that had Guantánamo been left purely to politics, few if any of the legal protections accorded prisoners would have been allowed. The litigation on behalf of prisoners generated political pressure for a restoration of the values of legality, and that pressure in turn played a critical part in the outcome of litigation. At its best, then, there is a symbiotic relationship between politics and law, in which civil society’s appeal to law informs politics, and that politics reinforces the law’s appeal.
Posner and Vermeule understand the importance of politics as a checking force in the modern world, but fail to see the critical qualification that the politics must be organized around a commitment to fundamental principles of liberty, equality, due process, and the separation of powers—in short, the rule of law. Properly understood, the rule of politics is a critical supplement to, but not a sufficient substitute for, the rule of law. We cannot survive as a constitutional democracy true to our principles without both.
4 See David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New Press, 2003). ↩
5 See Lawrence Lessig, Republic Lost: How Money Corrupts Congress—and a Plan to Stop It (Twelve, 2011) and Ronald Dworkin, “ The Decision That Threatens Democracy,” The New York Review, May 13, 2010. ↩
See David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New Press, 2003). ↩