Getting to the Rule of Law: NOMOS L

5. Separation of Powers and the National Security State

107 5 SEPARATION OF POWERS AND THE NATIONAL SECURITY STATE BENJAMIN A. KLEINERMAN Although the constitutional struggles of the Bush administration now seem to be in our proverbial “rearview mirror,” the constitutional questions that these struggles brought to the surface will surely remain. The essence of these struggles concerned the tenuous relationship between the rule of law and the preservation of national security. For the Bush administration, the preeminent importance of maintaining national security continually trumped concerns about the rule of law. And, if we are to be fair, this attitude made some sense for an administration that presided in its first year over an attack that killed so many citizens on domestic soil. Jack Goldsmith writes in his important and thoughtful book on the Bush administration: “It is hard to overstate the impact that the incessant waves of threat reports have on the judgment of people inside the executive branch who are responsible for protecting American lives.”1 Although Goldsmith’s account, based in part on his own experience in the administration, ends up being critical, this criticism is mixed with a fair-minded awareness that the threat of another attack may have overwhelmed the administration’s better judgment. He claims that the reactions of the administration were “natural responses by an executive branch entirely responsible for protecting the safety of Americans but largely in the dark about where or how the next terrorist attack will occur.”2 108 Benjamin A. Kleinerman In determining how we can restore the rule of law in the post9 /11 world, it is useful to start with this very natural reaction to these threats because they reveal the universality of the administration ’s response. In other words, contrary to what some might think, the restoration of the rule of law in the post-9/11 world requires more than Bush’s departure. Goldsmith’s argument actually reveals the extent to which any presidential administration, almost uniquely held responsible for preserving national security, will push the envelope in aiming to fulfill its responsibility. In a certain sense, then, one might say that the ultimate blame for the aggressiveness of the Bush administration in pushing beyond the Constitution actually lies in its constitutional duty itself.3 Given that the Obama administration came into office under claims that it would be different from its predecessor, the number of questionable policies it has continued shows the extent to which the problem lies in the very nature of the office. Of course, Goldsmith also rightly notes that the aggressions of the Bush administration went further than those of other administrations, even those that were similarly singlemindedly concerned about security. Goldsmith claims that whereas other presidents—his preeminent example is FDR—concerned about national security remained sufficiently politically attuned that they were willing to work with the other branches, the Bush “administration’s conception of presidential power had a kind of theological significance that often trumped political consequences.”4 At the heart of this conception lay a far-reaching claim about the inherent constitutionality of all that the president thought necessary to conduct the “war on terror.” While nearly every presidential administration has claimed independent and extensive executive power,5 the Bush administration went further in its claim that it had a preclusive power that rendered unconstitutional any attempt by Congress to cabin executive discretion.6 On the question concerning the relationship between the rule of law and national security, this meant that, for the Bush administration, the maintenance of national security was indistinguishable from the rule of law. Or, the rule of law, as conventionally understood, had to be reinterpreted in terms of the requirements of national security. Insofar as this claim is the most far-reaching and dangerous but, Separation of Powers and the National Security State 109 at the same time, seemingly unique to the Bush administration, are we not back to the conclusion that all has been restored by his departure? I will suggest that we cannot rest satisfied with this conclusion for essentially two reasons, both of which derive from the twentieth-century turn toward the legalization of executive discretion and away from an understanding of this discretion as essentially extralegal—a decision that followed from and illustrated a new conception of governmental power as essentially unified, in which whatever any one branch decided must also be acceptable to the other two branches. First, the...