On Monday, Benjamin Wittes and Jack Goldsmith had an op-ed in the Washington Post arguing that the Obama Administration should not replicate the Bush Administration's executive unilateralism in national security policy.
Obama, to put it bluntly, seems poised for a nearly wholesale adoption of the Bush administration's unilateral approach to detention. The attraction is simple, seductive and familiar. The legal arguments for unilateralism are strong in theory; past presidents in shorter, traditional wars did not seek specific congressional input on detention. Securing such input for our current war, it turns out, is still hard. The unilateral approach, by contrast, lets the president define the rules in ways that are convenient for him and then dares the courts to say no.I think this is correct. Had the Bush Administration sought Congressional approval of their policies earlier, Congress would have given the Administration most everything it asked for, and the Supreme Court would have been less likely to repudiate their policies.
This seductive logic, however, failed disastrously for Bush — and it will not serve Obama any better. Bush's approach avoided congressional meddling but paradoxically sloughed off counterterrorism policy on the courts. Over time, the judiciary grew impatient with ad hoc detention procedures that lacked clear and specific legislative authorization, and judges began imposing novel and increasingly demanding rules on the commander in chief's traditionally broad powers to detain enemy soldiers during war.
The result has been nearly eight years of unstable policy with no safe harbor for executive conduct and no settled rules for detainees. Ironically, one of the biggest casualties of this misadventure was the executive authority the Bush administration held so dear. At least in detention policy, Bush left a weaker presidency than he inherited, one encumbered by unprecedented restrictions imposed by judges.
One area where the Administration appears likely to take the unilateral route is with regard to detention. The Post and others reported last weekend that the Administration was considering a new Executive Order justifying indefinite detention. If the Administration believes such detention is necessary, it should seek legislation from Congress. Along these lines, Wittes and Colleen Peppard have proposed model legislation on preventative detention. Their aim: not "to argue for a preventative detention regime but, rather, to design one—to pose one set of answers to these questions with sufficient precision to produce actual legislative language." Whether or not this specific legislative proposal strikes the proper balance between liberty and security, the overall undertaking — seeking legislative approval of controversial counter-terror measures — is the proper course.