Closing Time: Presidential Power and Emergencies

JURIST Guest Columnists Lawrence Friedman and Victor Hansen of New England School of Law say that Barack Obama's recent executive orders directing the closure of Guantanamo and the CIA prisons suggest that he has a different and more limited view of Presidential emergency power then his predecessor...



Among the first acts of President Barack Obama's administration was to order the closing of the detention camp at Guantanamo Bay, Cuba, and an end to the secret CIA prisons where terror suspects were held and interrogated prior to being transferred to Guantanamo Bay. This decision marks a critical turning point in post-September 11 American policy.

The decision also says something about Mr. Obama's view of Presidential emergency power. It has long been understood that the commander-in-chief has the authority to act quickly and decisively in the face of an attack on the United States. After September 11, President George W. Bush used this power to establish the Guantanamo facility and the network of secret prisons.

To be sure, a legitimate emergency situation existed on and after September 11, one that likely justified at least the detention, at remote locations, of individuals who threatened harm to American citizens. The problem with the exercise of the emergency power is determining when the threat has abated and the President, to achieve his policy ends, must once again resort to the traditional mode of lawmaking, as spelled out in the Constitution.

President Obama's decision to close Guantanamo suggests that, in this instance, the original emergency has at last ended, such that the terror suspects may now be held and tried safely in either our criminal or military justice systems. This decision will have precedential value in evaluating future claims of emergency power, as President Obama must have determined that any threat posed to our interests by entrusting the detainees to the criminal or military justice systems in the United States has passed.

Importantly, the President is not saying that the larger threat of terrorism is at an end — far from it. Rather, his order is a step toward dismantling the responses to September 11 that President Bush created using his emergency authority and returning the government back to its traditional mode of lawmaking. Experience shows that the products of this mode of lawmaking are superior to exclusively executive efforts, not least because the involvement of Congress creates multiple avenues for holding government leaders accountable for their actions and ensuring they are responsive to the needs of constituents.

Still, the question remains: how should the public evaluate any Presidential claim of emergency?

In addition to looking to the considered judgment of the person occupying the Oval Office, guidance may be found in the U.S. Supreme Court's Fourth Amendment jurisprudence. There is an exception to the Fourth Amendment's requirement of a search warrant when the benefits of obtaining a warrant are outweighed by the costs to law enforcement and to society at large of the delay in obtaining one, and a number of factors relevant to this Fourth Amendment analysis are also applicable in the national security context.

The most important factor is the potential harm if the President could not respond to an immediate threat absent Congressional approval. At some point, however, a threat is no longer immediate, and then the emergency has ended. Were this not the case, the President would enjoy essentially unchecked authority indefinitely.

Applying this guidance to the detention of terror suspects, it seems clear that, by the time the highest court in the land had an opportunity to review the claims of some of the detainees, and Congress began to legislate on matters relating to the detention and trial of the suspects, any immediate threat had surely passed.

Yet, during the course of his Presidency, George W. Bush never really wavered in his belief that he had the authority to detain and to try terror suspects. There is precedent here, too, and it is one with which we will have to reckon in the future. For when the next threat to the nation presents itself, we must hope that the situation does not become an excuse for the President to wield power unilaterally for as long as he likes, contrary to the sound and preferable processes for lawmaking that the framers established more than two hundred years ago.



Lawrence Friedman teaches constitutional law and state constitutional law and Victor Hansen teaches criminal law and criminal procedure at New England School of Law. Their book, The Case for Congress: Separation of Powers and the War on Terror, will be published in 2009.
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