Published by The Lawfare Institute
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I was (and remain) profoundly ambivalent about contributing to Lawfare’s tenth anniversary “mea culpa” project, not because I don’t have my share of things that I got wrong (more on that shortly), but because I wouldn’t even be in this position (and receive invitations like this one) were it not for the terrible events of ten years and one day ago. After all, I was but a lowly 1L, my head still spinning in the second day of Guido Calabresi’s torts class, when the planes hit the towers. And although I always thought I wanted to be an academic, I would never have guessed then that I’d spend the better part of the ensuing decade writing about (and at times working on) some of the most significant wartime cases that the Supreme Court has ever heard.
In retrospect, perhaps I shouldn’t be so surprised: I spent most of college thinking that I wanted to be a history professor. What changed my mind were several “history” classes that I took with Nasser Hussain on how legal systems (and societies more generally) respond to historical “trauma,” whether in the aftermath of natural disasters, authoritarian regimes, or war. Indeed, I ended up writing my senior thesis (under Nasser’s supervision) on the war crimes trials after the First World War: why they fell apart, how we came to forget about them, and what lessons they might have for the development of contemporary international criminal law. In that sense, my post-September 11 move toward working on the law behind the U.S. government’s counterterrorism policies seems obvious in hindsight. But it’s just as obvious to me that I would give it all back in a heartbeat (and be perfectly content writing about obscure aspects of early-twentieth century European history—or perhaps our federal court system) if we could return to the world of September 10.
Obviously, that’s a pipe dream, but I thought it worth starting there, because in some ways, that’s a far bigger source of trepidation and/or regret for me than anything I’ve gotten wrong in the interim. I’ve sometimes told friends that I’ve been lucky throughout my career to be in the right place, writing about the right issues, at the right time. More and more, I think I have that entirely backwards…
With regard to what I’ve gotten wrong along the way, it’s certainly a longer list than that to which I can do justice here. But I think my biggest and most systematic mistake has been placing too much faith in the courts. Yes, the Supreme Court has repeatedly asserted its authority to decide cases arising out of Guantánamo or the detention of U.S. citizens, and yes, its decisions in those cases, even when ducking the merits, have had (to my mind) a salutary impact on the shape of U.S. policy going forward. Where would we be today without Hamdi and Rasul, which signaled that the courts would at least have something to say about the war on terrorism? Or Hamdan, which held that Common Article 3 applies to the conflict with al Qaeda, and which strongly hinted that the President could not use the Commander-in-Chief Clause as the basis for ignoring statutes that purported to limit his authority?
But both in the abstract and in light of those decisions, I did expect—and would have expected—the courts to take a far more active role in other areas of controversial counterterrorism policies, including wiretapping, surveillance more generally, detainee abuse, rendition, and so on. After all, unlike the Guantánamo cases, these are cases that started somewhere in the United States—and that directly affect those who live here, even if not you or I. Thus, I was fairly confident, to take one example, that the Supreme Court would “have” to grant certiorari in Arar. About that…
In reality, and in eerie similarity to the Vietnam experience, the lower courts have found every possible way to duck the merits of suits challenging these policies, and the Supreme Court has refused to review virtually all of those decisions (except when the government itself was the party seeking certiorari, as in al-Kidd and Iqbal). Even in the Guantánamo cases, the Supreme Court has been content (at least thus far) to basically give the D.C. Circuit the last word after Boumediene, even as serious questions have been raised concerning some of the circuit’s judges’ fealty thereto.
To be clear, I deeply believe that the courts can and should play a more active role in these cases, even though I know that there are many (especially on this blog) who vehemently disagree with that sentiment. If anything, the past decade has only further entrenched my views in this regard, especially given how woefully ineffective Congress has proven in meaningfully checking Executive Branch counterterrorism policy. Yes, the Executive Branch can and should check itself, but if we’ve learned anything over the past ten years, it’s that we can’t always assume that those checks will be effective—especially in these kinds of cases.
But where I went wrong was in expecting courts to be more active. Perhaps I shouldn’t be surprised that they haven’t been; after all, there are alarmingly few examples of courts using damages suits as a means of supervising the political branches during national security crises. And in any event, the Supreme Court during the Burger and Rehnquist years—and long before 9/11—had already made it that much harder for private citizens to recover damages for official misconduct, especially at the federal level. So my mistake in this regard was two-fold: First, I assumed that the different nature of the conflict that Congress authorized in the September 18, 2001 Authorization for the Use of Military Force would by itself embolden the courts to take a more active role, especially in cases relating to domestic national security issues. Second, failing that, I assumed that the institutional failure of Congress to check the Executive Branch would eventually come to provide the necessary cover for the judiciary to intercede, and to at least articulate forward-looking legal principles to govern future cases even if the law wasn’t clearly established at the time of the conduct in question. (But see Pearson v. Callahan.)
In the end, though, I got the courts wrong. Maybe that’s what happens when I grow up as a lawyer in the middle of these cases; maybe it’s just naiveté (or wishful thinking) about the federal courts as an institution; maybe it’s a lack of faith in internal checks within the Executive Branch. I leave it to you to decide.
But as the 9/11 decade comes to a close, I can’t stop thinking about W.H. Auden, who had this to say about a very different—but no less disheartening decade—that also began on a brilliant September morning:
All I have is a voice
To undo the folded lie,
The romantic lie in the brain
Of the sensual man-in-the-street
And the lie of Authority
Whose buildings grope the sky:
There is no such thing as the State
And no one exists alone;
Hunger allows no choice
To the citizen or the police;
We must love one another or die.