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Abstract:
Since Alexander Hamilton first wrote of the functional virtues of the presidency in matters of foreign affairs, his claim that a unitary executive is specially blessed with advantages of "[d]ecision, activity, secrecy, and dispatch" has been invoked regularly to argue for a limited role for Congress in national security decision-making, and even more rigorous deference to executive preferences by the courts. The Hamiltonian virtues have proven particularly compelling to a modern set of functionalist scholars from Bruce Ackerman to John Yoo, who rely on the same metrics of institutional competence to defend executive-heavy security detention programs (and other initiatives) against separation-of-powers arguments that the Constitution requires greater multi-branch engagement. While embracing the relevance of functional considerations in separation-of-powers disputes, this Article rejects the notion that unitary executive power is the structural arrangement most functionally advantageous for combating terrorism and associated threats. Although some terrorist-related events are "emergencies" that may implicate the Hamiltonian virtues, the new functionalist tendency to view counterterrorism only through the lens of emergency power exaggerates the importance of high-speed rights-security trade-offs, and obscures the range of trade-offs any security policy decision-making structure must confront - including regular trade-offs between strategy and tactics. Moreover, as organization theory helps demonstrate, while flexibility, unity, and speed can have advantages in the management of high-consequence risk, they also carry significant disadvantages that traditional separation-of-powers interpretation ignores, and that bear directly on the efficacy of executive-only decision structures. In the end, the alternative approach to evaluating comparative institutional competence proposed here leads to a far more favorable view of the functional desirability of multi-branch participation in programs geared to addressing the terrorist threat.

Abstract:
In addition to traditional arguments for expansive executive power based on the Constitution's text and history, legal scholars from John Yoo to Bruce Ackerman have based their case for broader wartime executive power on a set of fact-intensive policy arguments about the nature of the security threats today's world presents. According to this view, terrorism and associated threats in the post-Cold War world are qualitatively different from past security threats against the United States; in this changed world, a more flexible kind of executive power is required, one that requires a readjustment of the standard scheme of multi-branch deliberation. This Article contends that neither the nature of structural constitutional interpretation, nor the security policy premises on which these claims are based, support the case for the kind of expanded executive power their proponents have in mind. The Article first considers interpretive issues arising with heavy functionalist approaches to the structural provisions of the Constitution. It then notes several problems with the historical argument that the post-Cold War world presents security threats categorically different from those the nation has ever before confronted. Centrally, the Article suggest that even if one agreed that the security threats facing the United States are qualitatively different from any the United States has previously faced, one would as likely be led to the opposite conclusion regarding the virtues of unfettered executive power as a functionally effective means to meet them.

Abstract:
U.S. practices of coercive interrogation and torture since 2002 have called into question the efficacy of traditional structural constraints on executive power. Few dispute that the most egregious abuse of detainees in U.S. custody was unlawful, yet neither congressional oversight nor law-making functioned to check such treatment. This Article first considers why and how torture and abuse became such a pervasive problem post-9/11 despite affirmative laws prohibiting them. It then argues that the tools that were at all effective in checking executive power emerged from less classically "democratic" sources: a highly professionalized military and intelligence community; the media and organizations of non-governmental civil society; and actively engaged courts. While it is true that core democratic structures (particularly congressional oversight) failed to constrain executive operations in prisoner detention and treatment, these other levers of power saw at least modest success in changing the course of executive policy.

Abstract:
While a range of U.S. and international law scholars have criticized the United States' current approach to counterterrorism detention operations, some of the same voices are now recommending the development of a more formally sanctioned 'preventive' regime for detaining terrorist suspects. With a view both to resolving current dilemmas like the status of detainees held at the U.S. Naval Base at Guantanamo Bay, and to meeting the anticipated ongoing security interests of the United States, scholars like Jack Goldsmith, Robert Chesney, and others have emphasized the legitimate national interest in the "preventive incapacitation of uniformless terrorists who have the capacity to inflict mass casualties and enormous economic harms and who thus must be stopped before they act." And indeed, neither U.S. nor international law imposes a categorical prohibition against states' depriving individuals of their liberty for reasons other than their having committing a criminal offense. Yet even if it were possible to construct a preventive detention regime for terrorist suspects that satisfies U.S. and international procedural requirements, this essay suggests that it is not at all clear such a scheme would advance the security interests its proponents identify. Ultimately, as this essay explores, legal scholarship's current attraction to 'preventive' detention hinges as much or more on questions of national security policy than on questions of law.

Abstract:
Broad international counterterrorism efforts aimed in part at the detention of terrorist suspects have prompted renewed debate about the adequacy of the Geneva Convention regime and associated international law for addressing the current needs of international security. Criticisms that current law leaves unacceptable gaps in the regulation of terrorist detention, or is otherwise unclear, have led to a growing number of calls for new or revised international law governing state counterterrorism operations. This essay explores the primary arguments in favor of pursuing new international law in this realm, and ultimately rejects the new-law approach. While recognizing that existing international law is unclear in some respects, the essay identifies two basic reasons why pursuing new international law in this arena is not a useful next step, particularly for the United States. First, many of the "gaps" new-law advocates see in international laws regulating terrorism were left with the understanding that they would be filled in by other existing bodies of national and international law, including domestic criminal law. The existence of multiple, potentially relevant bodies of law governing different aspects of state action against terrorism is not of itself a problem; indeed, different governing laws usefully afford states a meaningful array of different policy options in responding to different degrees of terrorist threat. Second, to the extent international law is unclear on key questions surrounding detention, a U.S.-driven effort to negotiate a new formal (or informal) international understanding of these topics is unlikely to satisfy the interests of many U.S. proponents of a revised international framework, and otherwise unlikely to succeed anytime soon. Indeed, a different U.S. administration may well conclude the particular "clarifications" current proponents have in mind are not helpful to the security interests of the United States. Any engagement with international partners on these matters should be preceded by a strategic reassessment of the role of detention in U.S. counterterrorism policies. It may be that the outcome of this project will render moot the enormous task of international re-negotiation of core ideas in the international law of war.