The system of detention and military trial authorized by President George W. Bush on November 13, 2001, and additional claimed authority to hold terrorist suspects indefinitely without process, have been litigated in several judicial circuits, moving from district courts to the Supreme Court and back down again. In 2006, these authorities returned to the Court for further exploration in Hamdan v. Rumsfeld. Regrettably, until very recently the separation of powers issues raised by the President’s initiatives received little attention from Congress, which, under the Constitution, has primary responsibility over military courts, tribunals “inferior to the supreme Court,” “Offenses against the Law of Nations,” the war power, and “Rules concerning Captures on Land and Water.” Because of congressional passivity, the principal checks on presidential power have been supplied instead by litigants and courts. The constitutional issues that emerge from this concentration of power in the presidency form the central theme of this article.
Several years ago, I began work on a project that I fancied to be both hypothetical and academic. In the aftermath of September 11, a number of commentators, including one prominent member of the legal academy, advanced the proposition that interrogation by torture in pursuit of terrorists should be viewed as permissible under the United States Constitution when undertaken with procedural safeguards. In an article published in 2003, I argued that these commentators were legally sloppy and morally obtuse: no matter what procedures accompany it, interrogation by torture is both at odds with settled constitutional law as it is and profoundly inconsistent with the legal system as it should be.
The issues provoked by the topic of torture are the subject of ongoing debate, not least because new disclosures, sometimes with accompanying leaked government documents, seem to be published almost every day. The year 2004 almost literally ended with the December 30, 2004, publication by the Justice Department’s Office of Legal Counsel (OLC) of a brand new memorandum on the subject, designed to supplant the now notorious August 1, 2002, mem-orandum to White House Counsel Alberto Gonzales. The New Year began, not altogether coincidentally, with the consideration by the Senate Judiciary Committee of President Bush’s nomination of Gonzales to succeed John Ashcroft as the Attorney General of the United States. Not surprisingly, the issue of torture dominated the testimony.