The United States, we have been told by the President and supporters of current American foreign policy, is an exceptional nation. It seeks no hegemony or empire, and has no history of so doing. Its institutions are self-correcting; the publication of scandal should be a cause of self-congratulation, for in other, unspecified, nations, such information would be repressed. Unprecedented government policies are defended as responses to unprecedented challenges, graver than any that our nation, or by inference any other, has ever faced.
Likewise, only sentimentalists will be concerned with international treaties or conventions, or the complaints of agencies like the International Red Cross or Amnesty Internationaleven though the Geneva Conventions received more than lip service in a number of conflicts far more sanguinary than that we now face. The competence of a judiciary without expert knowledge of foreign threats and conditions is derided, even by some of its own members. A statute that limits the detention of citizens without trial is held irrelevant, being directed at past civilian abuses and not justified in light of todays compelling military needs. This is so even though we and our allies are not threatened with invasion or occupation, as we have been in the past, by the enormous armies of a modern state, nor by internal terror like that twice visited on the City of London and on a myriad of German industrialists and Italian politicians by the IRA, the Red Army Faction, and the Baader-Meinhof gang.
The exceptionalism that is celebrated, however, rests in no small measure on the institutional restraints created by men who entertained no illusions about human nature, including the nature of homo americanus. Mr. Jefferson, who in his view of political behavior was one of the more optimistic among the Founders, once expressed the hope that the "books . . . used for teaching children to read shall be such as will at the same time make them acquainted with Grecian, Roman, English and American history. History . . . will enable them to know ambition under whatever guise it may assume, and, knowing it, to defeat its views."
The exceptional structure of government created by the U.S. Constitution, as Justice Brandeis memorably said, was designed "not to avoid friction, but by reason of the inevitable friction incident to the distribution of the governmental powers . . . to save the people from autocracy."
These strictures traditionally have been held to have relevance even during the exigencies of war. Mr. Justice Jackson, who thought more deeply about wartime problems than any other modern justice, nonetheless declared in the Youngstown case, involving a steel strike in the midst of the Korean emergency, that "when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb . . . men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations." As for the courts, Jackson observed in two other opinions that "emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive that exercises them." "[P]rocedural due process. . . .must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the government, as they should on matters of policy."
The late Philip Kurland, one of the more careful students of the modern Constitution, noted that in his time, respect for federalism and the separation of powers had been swept aside in America. In his view, all that was left of the original safeguards was the rule of law, the notion that "government not act except according to preestablished rule, that it apply the rule according to preestablished procedure, and that the same rule be applicable to all."
Under this analysis, the administrations failing, two years after September 11, is not merely found in disregard of the non-detention statute relating to citizens that was inspired by the Japanese relocation cases, nor in failure to extend to long-term detainees, in the British manner, some procedural protections. The failure to provide for defined administrative review of any kind for those detained far from battlefields is a serious transgression; defined procedures were not to be expected in the days following the shock of 9/11, but two years on, excuses have run out.
The worst offense is found in the impugning of treaty rules and the subsequent failure to provide any publicly declared rules of conduct at all, for the victors or the vanquished. It is not the absence of constitutional law, but the absence of even administrative law, that has given rise to this transgression. When one inspects the administrations Supreme Court briefs in the Hamdi and Padilla cases and in the Guantanamo case, one finds references to no published guidelines, treaties, and regulations. Instead, we are told only of internal military reviews, conducted by unidentified and unspecified officials, and described only in snatches of speeches and press releases.
Small wonder it is that uneducated troops in the field consider that they are governed by no rules save those deriving from force and generated by vengeance and fear. From them, we have learned of what Justice Frankfurter called "the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority." As Justice Holmes said in a different context, "When the ignorant are taught to doubt, they know not what they may safely believe." There will be much caterwauling about and myriad investigations designed to identify the particular military intelligence or military police general who will be made to sacrifice his or her career in atonement for what has occurred. As a lawyer, I find myself not much interested in the fate of these persons. Those who should walk the plank are the Attorney General of the United States and the General Counsel of the Department of Defense.
Opinions expressed do not necessarily reflect those of the Hudson Institute.