Executive Power in Wartime

Michael Mukasey served as the Attorney General of the United States from 2007-2009, as a U.S. district judge for the Southern District of New York from 1988-2006, and as an assistant U.S. attorney for that same district from 1972-1976. In 1995, he presided over the trial of Sheik Omar Abdel Rahman and others for a plot to blow up New York area landmarks. He received his B.A. from Columbia University and his LL.B. from Yale Law School.

The following is adapted from a speech delivered in Washington, D.C., on September 15, 2011, at the Second Annual Constitution Day Celebration sponsored by Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship.

President Obama campaigned for office largely on the claim that his predecessor had shredded the Constitution. By the Constitution, he could not have meant the document signed on September 17, 1787. Article II of that document begins with a simple declaration: “The executive Power shall be vested in a President of the United States of America.” Not “some” or “most” or even “all but a teeny-weeny bit” of the executive power. The President is vested with all of it. This is particularly noteworthy when compared with the enumerated legislative powers vested in Congress: “All legislative Powers herein granted.” The Founders understood, based in part on their unfortunate experience under the Articles of Confederation, that the branch of government most likely to be in need of the ability to act quickly and decisively is the executive. The branch most likely to overreach is the legislature.

Perhaps, then, candidate Obama was thinking of the Bill of Rights in claiming that President Bush shredded the Constitution. But leaving that question aside for now, let us consider how President Obama has fared in undoing the Bush policies he opposed. He began dramatically in January 2009 by issuing a series of executive orders. According to one, Guantanamo was to be closed within a year. Even though the principal planner of September 11, Khalid Sheikh Mohammed, or KSM, had announced that he would plead guilty before a military tribunal at Guantanamo, the Justice Department announced in November 2009 that the military commission was cancelled. Instead, KSM would be brought to the mainland United States to stand trial. In response, Congress passed a statute, relying on its constitutionally-enumerated power of the purse, directing that no federal funds be used to bring any detainee from Guantanamo to the U.S. As a result, the Guantanamo military commission trial for KSM and other detainees charged in connection with September 11 is back on.

Another executive order in January 2009 suspended the CIA interrogation program. Instead of these allegedly disgraceful and unconstitutional interrogation techniques, it was announced that anyone acting on behalf of the U.S. government, even a highly trained CIA operative seeking sensitive security-related information, is limited by the Army Field Manual. This manual—because it was drafted for general use—is pitched to the capabilities of the most junior recruit in the field interrogating someone he has just captured. In fact, it has been available on the Internet for years and has been used by terrorists as a training manual for resisting interrogation.

The abandoned CIA program involved—in what is probably the most disastrous marketing term since New Coke—“enhanced interrogation” techniques which were, in fact, completely lawful. When detainees were subjected to those techniques—detainees who self-selected as both knowledgeable of Al Qaeda and resistant to lesser techniques—we learned a great deal. Three of these detainees—Abu Zubaydah, Khalid Sheikh Mohammed, and Abdel Rahim al Nashiri—gave up a huge trove of valuable information. Not only did KSM disclose general information on how Al Qaeda moved money and people, but also specific information that helped disrupt other plots. One such plot involved airplanes attacking the Library Tower in Los Angeles. It was to be carried out by a South Asian group headed by a man named Hambali. Other information resulted in the capture of people involved in a plan to develop a biological weapons capability in the U.S. The list goes on.

Not only has this interrogation program been abandoned, but when people today are apprehended in connection with terrorist plots directed at this country—and there have been more than 20 since September 11—most are turned over immediately to law enforcement authorities, informed of their Miranda rights, and treated as routine criminal suspects.

What do we lose in this process? With the would-be Christmas Day bomber Umar Farouk Abdulmutallab, we lost the chance at information about who had built his bomb. From bombs that have shown up in packages originating in Yemen, it appears that the same bomb maker is still in business, and he is believed to be responsible for a bomb that injured Prince Mohammed Bin Nayef, the man largely responsible for Saudi Arabia’s counter-terrorism efforts.