The department cannot afford to lose credibility, with so much on the line.
The department cannot afford to lose credibility, with so much on the line.
R egular readers have no doubt detected that I am sympathetic to concerns that have been raised by Chief Judge James Boasberg, of the federal district court in Washington, D.C., regarding the process (or lack of same) by which more than 200 Venezuelan aliens were deported from the United States. There are two principal reasons for that.
Inviting Blowback Against National Security
First, I’ve been involved for more than 30 years, in one form or another, with American counterterrorism policy, and I worry that the Trump administration, by failing to heed the hard lessons of that history, is going to provoke a blowback that will make it more challenging to protect the United States. As John Yoo and Robert Delahunty observed in our pages this week, failing to think through a move such as the summary deportation of Venezuela’s Tren de Aragua (TdA) gangsters — effectively making an enemy of a vexatious, hostile state at a time when our defense resources are overstretched — could back us into a war, which isn’t what we want and wouldn’t be good for the Venezuelan democratic forces that we’d like to encourage.
More to the point, our system — and within it the judiciary’s role to interpret the Constitution authoritatively — resists the proposition that any one official has the power to designate people as enemies of the United States, to detain them and dispose of their cases unilaterally and absent judicial review. Our governing framework does not oppose a robust commander in chief who can marshal all government power to quell a true threat against our country and its interests. But when FDR took decisive actions against German saboteurs who infiltrated our country during World War II, it was not the president’s awesome war powers that convinced the judiciary to stay its hands. The courts stood aside because Congress had declared war and identified the enemy — empowering the president to invoke the laws of war to detain and execute the saboteurs, even though the courts were open and functioning, and even though at least one of the saboteurs was an American citizen. [See Ex Parte Quirin (1942).]
Moreover, as I discussed this week, the overarching message of the Supreme Court in the post-9/11 cases — even after Congress had statutorily authorized the use of military force, triggering the laws of war and very broadly identifying the terrorist enemy and its state sponsors — was that the president should not unilaterally set up a system for detention, trial, and extradition of alien enemy-combatant terrorists. The justices admonished the president to work with Congress so that drastic measures would be well founded in law. They wanted the Bush-43 administration to draw on what Justice Robert Jackson described in the Korean War–era Steel Seizure case as the apex of legitimate executive power: “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum.” (See Youngstown Sheet & Tube v. Sawyer, 343 U.S. at 635-37.) Contrary to the administration’s claims, its insistence that the president is acting with express congressional support depends here on the unlikely conclusion that Venezuela, through the vicious TdA criminal gang, has carried out an invasion of or predatory incursion in the United States, as those terms were understood at the 1798 enactment of the Alien Enemy Act (AEA), codified at Section 21 of Title 50, U.S. Code.
For our Constitution’s Framers, liberty’s main guarantor was not the Bill of Rights; it was the separation of powers. It was the principle that the accumulation of too much power in any one set of hands — particularly the power to make the laws and the power to enforce those laws without oversight –- was the road to tyranny. In this instance, the president is claiming breathtaking unilateral power. The administration says, for example, that president’s deportations rest on not only the AEA but also what he vaguely describes as his authority under Article II of the Constitution. It is not obvious what, if any, limits to that authority Trump concedes if some situation at least tangentially touches on foreign affairs. As the just-mentioned Steel Seizure case and the post-9/11 cases illustrate, the Supreme Court has rejected that expansive view of executive authority.
Courts want to be assured that presidents in a system of limited government act in patent awareness of the limits on their authority. Intimating, to the contrary, that there are no real limits is asking to be smacked down.
Honesty Is the Best Policy
Second, I was a federal prosecutor for nearly 20 years, and still proudly revere the Justice Department’s mission of energetic but fair and nonpartisan law enforcement. That is why I was an ardent critic of Russiagate and Biden Justice Department lawfare. Similarly, I believe deeply in DOJ’s modern counterterrorism mission (having been there at the founding).
Among the most critical elements of success in DOJ’s law enforcement and national security work is credibility.
Unlike other arms of government, the Justice Department’s missions are inextricably linked to the work of the federal courts. It is a complicated dance at times. The interplay takes place on the judiciary’s turf, where the judges are in charge of the proceedings. But that doesn’t make the Justice Department a subordinate. As a significant arm of the executive, DOJ officials are peers of judicial officers. Of course, the DOJ has an abiding interest in the just outcome of proceedings before the courts (which, when the government is doing its job right, will usually mean that criminals will be convicted and foreign intelligence will be gathered). Nevertheless, the executive branch’s law enforcement and national security duties clash not infrequently with the court’s obligation to protect the constitutional rights of the government’s targets.
How do we resolve that tension? In two ways.
To begin with, we must always be mindful of the type of proceeding in which the branches collide. In criminal prosecutions, the paramount American value is the presumption of innocence, which flows seamlessly from our tenets that Americans are free, that the government’s intrusion on freedom must be limited, and therefore that the prosecutor must satisfy a high burden of proof before liberty, property, or, on occasion, life itself can be taken away.
Hence, in a criminal case, the court has pride of place. That doesn’t mean judges can dictate to the Justice Department; after all, in a separation-of-powers system, no branch gets unilateral control. But it does mean that the court’s rulings take precedence over the government’s law enforcement interests because the judiciary is the safeguard of the citizen’s liberty against government action. The accused gets the close calls, it being our proud boast that we’d rather see the guilty go free than see an innocent person wrongfully convicted.
In national security matters, however, the Justice Department is owed more deference. The courts are not expected to abandon the judicial role because, again, that would be an abandonment of separation of powers. But the executive is politically accountable to the American people whose lives are at stake in matters of our defense and our relations with foreign powers, some of them hostile. If the executive appears to be acting reasonably, to be protecting the nation within the broad contours of its authority — both constitutional and statutory — then the judiciary should give it a wide berth, even if in an ordinary criminal prosecution the accused would get that benefit of the doubt. (I continue to believe it would be better if the courts, the nonpolitical branch, had no role in most national security matters, which are political in nature; there should instead be robust congressional oversight. Nevertheless, Congress has delegated that role to the courts in many contexts, and its oversight of the executive in this realm, as in many, has become ineffective.)
The other way of resolving tension involves honor — the attribute that towers over other considerations.
The executive and judicial branches are both dedicated to ordered liberty, but they serve different interests that cannot always be mutually accommodated. Necessarily, officials of each branch must know from the outset that, if both sides are doing their jobs properly, there are going to be good-faith disagreements — some of them grave. The existence of these controversies does not indicate that one side is trying to dominate the other. Each side has to appreciate that the other protects bedrock American values, even as they vigorously urge that, in the controversy at hand, the national interest calls for one side’s imperatives to prevail.
President Trump and his administration are trying to deal with the national security challenge of the Biden border collapse. It has left us with about 20 million aliens who should not be in this country, including members of criminal gangs and agents of hostile foreign powers. As usual, Congress has proved incoherent and dysfunctional: It has properly called for illegal aliens to be detained while legal proceedings over their status ensue, but provided a laughably scant amount of detention space for that purpose. (A U.S. official recently told Reuters that the administration was “maxed out” at 47,600 immigration detainees, well under 1 percent of the illegal-alien population.)
Therefore, to protect the country, the president is scrambling for detention space and also to prioritize the most dangerous criminal aliens for deportation. That is why the administration has attempted to exploit detention space at the Guantanamo Bay naval base — space previously used only for War on Terror detainees, which has proved legally problematic in immigration cases. It is also why Secretary of State Rubio struck a deal under which the State Department is paying El Salvador to imprison detainees believed to be especially dangerous — the arrangement under which the TdA suspects were sent there.
By contrast, Judge Boasberg is responsible for vindicating the rights of those alien suspects, many of whom claim that their presence in the U.S. was lawful and who also contest the government’s unproven claim that they are TdA members — or at least sufficiently TdA-adjacent that they should be treated as TdA members. Relatedly, Boasberg must remain mindful that, if he ruled in a manner too deferential to executive power in a time of crisis, it could invite a wider range of unilateral detentions and deportations.
These are weighty competing interests, and there is no obvious tradeoff that would leave both sides satisfied.
On occasion, that’s the way it goes. When it does, the Justice Department is in far better position if it is forthright with the court. Judges don’t like to be told that, because there are competing interests of greater concern to the nation, they lack authority to vindicate the interests the courts are there to protect. But prosecutors can keep their credibility by candidly and respectfully advising the court that this is the government’s position, and explaining why it is amply supported in statutory law and jurisprudence (assuming that it is). Those can be very tense exchanges, but they are less likely to become ruinous ones if the Justice Department plays it straight.
On the other hand, let’s say that the DOJ relies on a dubious theory, communicates lack of confidence in its position by operating in stealth, dodges the judge’s pointed questions, stonewalls when the judge demands basic information, and then demagogues the court in an attempt to divert attention away from its own mischief (an attempt that fools no one, especially the judge). In that posture, the Justice Department will lose the battle at hand.
Not just that. Once credibility is shattered, the DOJ starts losing the battles that it should win — and that the nation needs it to win.