Known and Unknown - Donald Rumsfeld [326]
The tension among the three branches of our federal government goes back to the founding days of the Republic, when Alexander Hamilton and James Madison argued out the merits of a “vigorous Executive” in the Federalist Papers.3 The debate has come up time and again—for example, during the Civil War and World War II as Presidents Lincoln and Roosevelt put the nation on war footings by exercising their powers as commander in chief expansively.
Cheney and I had witnessed the era of Vietnam and Watergate, during the fevered debate over the so-called imperial presidency. Late in the Vietnam War, Congress passed the 1973 War Powers Resolution, which declared that American presidents could no longer send U.S. forces into combat without express authorization by Congress, except in exigent circumstances. Cheney and I dealt with this congressional backlash in the Ford White House. In the early days of the Ford administration, Bryce Harlow, the savvy White House liaison to Congress, former Eisenhower aide, and a friend, told me—and I am paraphrasing from memory:
The steady pressure by Congress and the courts is to reduce executive authority. It is inexorable, inevitable, and historical. Resolve that when you leave the White House, leave it with the same authorities it had when you came. Do not contribute to the erosion of presidential power on your watch.
Harlow’s words left an impression on me, and, I suspect, on Cheney.
The executive branch lawyers’ view of presidential prerogatives in national security, with a proper concern about congressional and judicial infringement, may well be consistent with the Founding Fathers’ intentions. Nonetheless, the role of the federal judiciary has changed significantly over the past fifty years. Since World War II, federal courts have become involved in policy issues ranging from abortion and major league baseball to gun rights and campaign financing. In World War II, the United States detained four hundred thousand German and Italian prisoners of war in camps across the country without any judicial review. Out of the handful of habeas corpus petitions from those POWs, no court in the United States granted a single one. But as Jim Haynes pointed out in 2008, “Today, we have less than 300 unlawful combatants detained at Guantánamo Bay, Cuba, and 246 ongoing habeas cases to go with them.”4
If it weren’t obvious in 2001 that long-established legal precedents, even from the Supreme Court, were no longer reliable guideposts in times of legal activism, it should be sufficiently clear now. One of the finest legal minds in the nation, Solicitor General Ted Olson, advised White House lawyers in the early years of the George W. Bush administration that their view of executive power might not fare well with the twenty-first-century Supreme Court. Had the administration heeded that caution and worked with Congress early on to craft acceptable legislation governing twenty-first-century detainee policies, the courts might—and I stress might—have been somewhat less inclined to assume the role that they now have seized—and presidential powers in wartime might as a result be stronger than they are today.
While the legal justifications behind the decisions and policies we made on detainee affairs were sound and firmly rooted in precedent, there is little doubt that they grew increasingly out of sync with the mood of the country. The intense emotions of 9/11—insecurity and fear, offset by outrage and a resolve to confront the terrorists—eased. Increasingly distant memories of that day were overtaken by new, skewed images of detention—photographs from Abu Ghraib and an avalanche of largely unrebutted misinformation about Guantánamo Bay. Detainees came to be viewed by some in Congress, the news media, and the public less as dangerous terrorists caught on the battlefield and possible sources of lifesaving information about our enemies, but more as victims of abuse deprived of their legal rights.