One of the most common criticisms of President Trump’s administration is that it’s somehow “unprecedented”. This pearl-clutching designation hasn’t only been used to describe specific policies and positions, but the Commander in Chief’s attitude and general demeanor as well. As such, it’s become a catch-all term used more to signal existential exasperation than to critically analyze. And as with most catch-all terms, it’s also a bit flattening, making annoying tweets and the balance of power between the branches of government appear equally crucial. The loss of perspective is dizzying, and among the most significant truths that we lose when we succumb to it are all the ways in which the robustness of the contemporary executive represents a real continuity with the recent past. The most terrifying aspect of the Trump administration is that it isn’t unprecedented at all.
This continuity is particularly evident when it comes to America’s Global War on Terror, or what is now being referred to as the Long War. In Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law, Lakehead University law professor Ryan Alford, sketches out a short history of the recent decline in formal legal constraints on executive power going back at least half a century. In the preface to his book, Alford calls what exists in America today, the “replacing [of] constitutional supremacy with unreviewable executive power, whenever the president invokes national security,” an “elective dictatorship” with a level of unaccountability which “Nixon only dreamed of.” In Alford’s depiction of events, 9/11 was the watershed moment and the American response which followed represented a dramatic deviation from constitutional norms and international standards regarding both domestic security and war. Aided by a Congress compromised by special interest money and pliant courts, the Executive was able to engage in such dubious activities as targeted killing, torture, and indefinite detention.
It’s a convincing diagnosis, coherent and succinct. But the proposed treatment, a wooly blend of internationally imposed constraints and reliance on domestic public opinion to sway institutions, is a little more dubious. Alford has written an important book which lucidly articulates for a general readership some of the legal concerns of an unchecked executive. But in widening its scope for accessibility it occasionally misses the mark. By not quite being broad enough to include associated concerns such as how constitutional law relates to the concept of the Deep State or changes in war fighting technology, and yet remaining too broad to be considered a rigorous legal text, the book occasionally suffers from staking too weak a claim on its own identity.
Breach from the Past
Alford begins building his case by laying out a definition of the minimum requirements of the rules of law, relying mostly on a history of British resistance to supreme monarchy and Dicey’s definition of the rule of law as in definition forbidding “the exercise of arbitrary power, subjects officials to the law, and bars the executive from setting up special courts when citizens bring claims against the executive.” Alford writes that “Dicey’s definition of the rule of law was more than merely influential; it was foundational.” In sketching out a prehistory of modern constitutional law, Alford draws a connecting line between the bedrock concepts in the Magna Carta and contemporary international standards of the United Nations and International Commission of Jurists as all agreeing to the basic precept of law being absent arbitrary power and equally applied to all parties.
The difficulty with Alford’s case is that, despite avoiding the “unprecedented Trump” mantra, it also rests on there being an historical rift. “Until the twentieth century,” Alford writes, “the rule of law was protected adequately by the separation of powers defined by the [United States] Constitution. In the nation’s first 150 years, Congress and the courts checked presidential powers as the Framers intended. Although ambitious presidents attempted to expand their powers during crises, they were repeatedly rebuffed, from the earliest days of the American republic.”
Alford argues that checks on executive power deteriorated completely after the Second World War. To put it simply, we maintained a national state of emergency into the Cold War and instead of scaling down wartime political and legal apparatuses, they simply became entrenched as an appendage to Eisenhower’s infamous “military-industrial complex.” Regardless, there was still, to some extent, pushback from courts and Congress. Alford sees this tug of war play out with particular clarity in Nixon’s fascination with the limits and privileges of the executive set against congressional road blocks such as the War Powers Resolution, reinvigorated oversight of the intelligence agencies, the Privacy Act of 1974, Freedom of Information Act, and the International Emergency Economic Powers Act of 1977. For their part, courts ruled against Nixon’s withholding of tapes and against warrantless wiretapping. Ultimately, Alford sees Nixon’s resignation as a restoration of the rule of law.
Post 9/11 Failures
As important as 20th century history is for Alford, the Bush administration’s response to the 9/11 terrorist attacks represents the meat of his argument. It’s important to keep in mind that many of the high-level officials within the Bush administration had experienced the demise of Nixon firsthand and were both supportive of an unchecked executive and critical of post-Nixon reforms. With the national shock of 9/11 still reverberating, key officials in the Bush Administration saw an opportunity to implement their preferences on a grand scale. The first and arguably most profound result of their strategy was the 2001 Authorization for Use of Military Force, a brief document of only 60 words which in letter gives the executive branch the authority to engage in military action against the parties directly involved with the 9/11 attacks has in fact been used as legal cover for any number of campaigns against a panoply of enemies around the globe. What makes the AUMF such a potent document is that it’s been interpreted as granting the executive the right to take up arms, not against a specific group, but against anyone who thinks a certain way. Alford writes, “On this basis, the war on terror, itself an expansion of delegated powers that offended the rule of law, was thereby expanded into a war against an ideology, which can be defined ever more broadly by the executive.”
The AUMF acts as a kind of synecdoche for the post-9/11 ideology of the unmoored executive. We entered a period of permanent war, a sort of enduring state of emergency, which justified not only an expanded freedom of the president, but simultaneously eroded the checks and prerogatives of Congress and the judiciary. From this deterioration emanated an array of dubious activities: drone strikes on civilians and even American citizens, arbitrary detention, torture, and expanded surveillance of electronic communication. One of the especially interesting things about this sweeping power grab by the executive was how each of these potential violations of the rule of law fed into demands for further violation. For instance, Alford points out that ignoring norms and laws concerning torture was done “with the goal of obtaining false confessions that would make the case for further military campaigns, thereby prolonging the state of emergency and allowing for additional consolidation of power within the executive branch.” And so one of the results of this “elective dictatorship” is the creation of a paranoid loop, cut off from not only legal checks but epistemological ones as well. The Executive has become a sort of ouroborus, feeding on itself.
Of course, this executive power grab didn’t happen in a vacuum. It took Congress and the courts abdicating their own duties to enable the executive. Alford points to a number of specific disappointments from Congress, such as The Military Commissions Act of 2006 denying detainees the right to rely on the Geneva Conventions, the 2005 Detainee Treatment Act granting immunity to torturers, the 2003 invasion of Iraq, and subsequent failures to stand up to the executive in attacks on Libya and Syria. But the burning question is ‘why?’ Why would Congress relinquish so much power to the executive branch? Alford, quite cynically, chalks it up to a combination of political cowardice (there’s simply no political benefit to standing up to the executive) and the financial pressure of private military contractors on politicians. It isn’t a good-faith argument and strikes me as only half true. Many, if not most, members of congress think they’re acting in the interests of their country and aren’t nearly so nihilistic as Alford makes them. And perhaps special leniency should be shown in the immediate aftermath of 9/11, when security experts leveraged a citizenry frightened by the first attack on American soil since Pearl Harbor for the power they insisted was necessary to prevent another atrocity. Congress might have been wrong to relent, but not necessarily cynical.
When it comes to the courts, Alford argues that there has been a consistent evasion of constitutional fealty, especially as it pertains to indefinite detention. “In the end,” Alford writes, “the court contented itself with merely creating a pressure valve in the form of tightly restricted opportunities for the detainees to prove their innocence, without even requiring release in that event.” This deference to the executive extends beyond complicity in the de facto eradication of habeas corpus to include a failure to enforce the War Powers Resolution, demand a coherent justification for targeted killings, and a reckoning with expanded surveillance.
Alford’s reasoning on the court’s pliancy is similar to his characterization of Congress and can be summed up simply as ideological cronyism. Or, as Alford writes, “It is as yet unclear why the federal appellate courts would develop doctrines that prevent the judiciary from policing the boundaries of the rule of law. The key to this explanation will be the close connections between these two branches of government, as illustrated by the appointment process, which allows the executive to choose those who will sit in judgement over its attempts to subvert the laws.” It’s a bit pat and not entirely charitable, and therefore not entirely convincing.
Permanent State of Emergency is a fascinating book perfectly suitable for the general audience reader, but if the legal arguments are broad, the overall vision of the book is a bit hemmed in. Being as general as it is, the book’s analysis could have engaged more with things other than simply politics. For instance, it could have mentioned the court’s attempts to keep pace with changing war technology, or the theory of the Deep State, both of which also play a large role in the expanding power of the executive. This is a serious book, successful in many of the arguments that it makes, but it only gestures at something vast beyond its periphery. If the Long Wars have resisted political and legal solutions, even going so far as to appropriate our institutions to its own ends in some instances, then we’re forced to consider the possibility that the breach with the past was more profound than Alford suggests. Although our legal system enabled our current state of permanent war, political reform might not necessarily end it. Once the barn door has been opened, a more expansive and creative understanding of the scope of the current problem might be required. Alford’s book should really be read in conjunction with works such as Garry Wills’ Bomb Power and Grégoire Chamayou’s Drone Theory in order to gain any significant understanding of how complex an issue our Long War actually is. These books give a sense of what a mind-bending world contemporary war is. It’s a subject so vast that it can’t help but spill across disciplinary borders, requiring novel combinations of thought from various fields for a study to be relevant. Permanent State of Emergency is general enough for an educated public, but still too narrow in scope to convey important truths about modern war. It’s a fine puzzle piece, but we’re left wondering about the bigger picture.