JULY 23, 2017
THE LATE HISTORIAN Arthur Schlesinger Jr. is remembered for warning of the expansion and abuse of executive power in his classic 1973 book The Imperial Presidency, published just a year before Richard Nixon resigned in disgrace. But Schlesinger also strongly believed the president’s “heroic leadership” was essential to American democracy, particularly in times of crisis.
Critics like Louis Fisher therefore consider Schlesinger part of the pantheon of post–World War II scholars that unduly promoted “the cult of the strong Presidency” (Schlesinger himself expressed some regret about contributing “to the rise of the presidential mystique”). But this criticism has done little to undercut Schlesinger’s influence. Half a century on, his particular twist on the Hamiltonian conception of the energetic executive lies at the center of much of the debate over hard US national security choices.
This is the tradition Ryan Alford sets himself against in Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law. It is from a position of deliberate disinterest in institutional personality, particularly presidential personality, that Alford builds his account of the lawlessness of US counterterrorism efforts since the 9/11 attacks and charts our country’s official passage across the “threshold between an imperial presidency and an elective dictatorship.”
Because of this disinterest, the executive branch is the subject of Alford’s book, and yet it remains a vague and blurry presence throughout. Alford does not attempt to describe the national security pressures or political forces that inform the president’s decision-making; he never delves into the life of the executive mind. Nor is he particularly interested in how the changing global threat landscape or the rise of the modern administrative state have contributed to the expansion of executive power. Alford details the executive’s drive for power as a desire for power for its own sake, nothing more.
It is as though Alford has attached a shadow roll to the noseband of his work, restricting his analysis and the reader’s field of vision to what the executive does without much of the why. This is an interesting and important choice that dictates the shape of the whole book — and it is a reminder that the schism between the global human rights movement and much of the US national security establishment begins with totally different starting premises about what is relevant in assessing the legality of executive action.
The book is best read as the US edition of an international human rights law manifesto, one that builds from two broad premises the conclusion set out in its title: that our executive branch is out of control, and that the American rule of law has degenerated beyond recognition. Drawing in part on the International Covenant on Civil and Political Rights, Alford declares that at the very core of the rule of law are a set of “fundamental human rights” that are “non-derogable” by the executive, even in crisis, and even if Congress has passed a statute authorizing the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” the 9/11 attacks. He then argues that these rights are violated, and the rule of law damaged, when the executive is permitted to claim the broad discretionary power to kill, to torture, or to indefinitely detain.
Alford’s account of the ebb and flow of executive power is not particularly unusual, except that, under Alford’s definitions, the executive power cycle doubles as a death-cycle for the rule of law. This shifting concept proved its resiliency from 1787 to 1940; was overtaken by an overreaching executive during the Cold War, 1941 to 1968; was painstakingly “re-implemented” by Congress and the courts from 1974 to 9/11; and was subjected to wholesale destruction after 9/11 — this last bit a disaster from which we cannot expect meaningful recovery “in the near future.”
But his “death-cycle” analysis suffers from selective bias. Did the rule of law really keep its shape from 1787 to 1940, as Alford asserts, or did we just know less or care less back then? How to square his assertion with, say, the systematic US torture of Filipino prisoners in clear contravention of the laws of war during the Philippine War (1899–1902)? How to understand the United States’s refusal to discipline torture mastermind Major Edwin F. Glenn, inventor of the now all-too-familiar “water cure,” beyond a fine of $50 and one-month suspension from his post?
The deeper criticism, though, is that by Alford’s lights, the vaunted “rule of law” doesn’t seem to do very much; it is a thing to which much is done. It is a measure of the health of our democratic republic (“the metric to judge the United States”), and not really the means by which our health is maintained or our strength can be recovered. He seems to see the rule of law as a rheostat — its wire tightly coiled around the core of our legal system for the explicit purpose of calibrating the current of executive power — but his conclusions suggest that this resistor is not a very good one.
As a consequence, there’s little room in Alford’s theory of US regression for what the liberal constitutional theorist David Dyzenhaus describes as the “virtuous cycle of legality,” a hopeful vision of law’s accretion over time wherein what is mere public policy today is converted into “public, legally applicable standards” and institutional reforms tomorrow. And Alford seems to reject outright the simpler idea of legal resurgence. In 2004, shortly after the United States invaded Iraq, Schlesinger lamented that “the Imperial Presidency redux is likely to continue messing things up,” but added this crucial bit: “Then democracy’s singular virtue — its capacity for self-correction — will one day swing into action.”
Alford’s gloom is not wholly unwarranted. The most compelling sections of his book detail those features of our post-9/11 world that militate against optimism. Justice is delayed or precluded even on issues everyone agrees on. It took over a decade to free all 22 of the Uighurs whom the US government conceded, as early as 2003, were wrongly locked up at Guantanamo. And despite the consensus that, in President Obama’s words, “We tortured some folks,” in clear violation of constitutional and international law, it has proven impossible to hold anyone accountable for abuses committed in the name of counterterrorism. This summer, the Supreme Court ruled that six undocumented immigrants held for months without bail in a Brooklyn prison as part of the FBI’s wide-ranging terrorism investigation in the aftermath of 9/11 and allegedly subjected to abuse by prison guards — including broken bones — could not sue federal officials after the fact for money damages. Those seeking to fit this latest installment into the larger pattern of major decisions insulating the executive branch’s counterterrorism policies from even ex post judicial scrutiny will find chapter four of Alford’s book depressingly useful.
Ultimately, though, because of its bright lines and broad-brush analysis, the book is best read as a helpful supplement to, rather than substitute for, other post-9/11 legal narratives. For example, what lies beneath Congress’s abdication of “all responsibility for overseeing and restraining the executive’s powers” on indefinite detention and aggressive executive war-making? The answer is “campaign financing by the military-industrial complex.”
As for the federal courts, Alford explains that they have used doctrines of deference to tie themselves to the mast because of a corroded judicial appointment process; recent presidents have systematically selected and elevated judges who actively resist constraining executive power. Alford’s almost exclusive focus on the mechanics of various forms of institutional corruption presents a striking contrast with more conventional, Schlesingerian accounts of the dynamics that tend to expand executive power in times of foreign crisis — such as Congress and the courts’ cowardice and lack of confidence in the face of a president asserting his superior security expertise.
In the end, Alford attributes our permanent state of emergency and rule of law failures to institutions that have changed too much, but in a world of evolving threats and evolving technologies, the opposite seems just as likely to be true: our institutions have changed, and moved, too little. After all, it is stagnation that has served as the most dramatic source of executive power expansion since the 9/11 attacks. Sixteen years into the US fight against terrorism, the executive branch presses on against a terrorist group that did not even exist at the time the statute authorizing force was enacted. Congress has still not moved to amend that statute, the longest-running authority of its kind in American history, and because the drone-dead do not file lawsuits like the Guantanamo-detained, the courts have not been forced to respond.
Against this backdrop, there is reason to hope that Alford is wrong at the end of his book when he describes Donald Trump’s election as the start of a traumatic new chapter in the “ever-increasing concentration of political power within the presidency.” If constitutional psychology matters at all, if our institutions have complex personalities of the kind Schlesinger so memorably described, perhaps this president’s inability to command the trust of Congress and the courts will itself force their courage. Perhaps Trump’s installment in the White House marks a new and unprecedented kind of emergency, one that need not strengthen the executive security monopoly Alford describes, but one that could finally break it.