Most often, the pundits discuss a nominee’s gender, upbringing, legal background, political alignment and previous cases. One’s stance on national security issues doesn’t always get a lot of attention. But now that the United States is engaged in two wars, it is incredibly important, argues UC-Berkeley law professor John Yoo, to consider a nominee’s stance on national security. In a recent op-ed in the Wall Street Journal, Yoo—a controversial former Justice Department official—wrote that Justice Stevens had a tendency to undermine military authority in wartime, and was on a “crusade to overturn the executive branch’s terrorism policies.” Yoo said that in 1943, Stevens (then a Navy intelligence officer) raised “humanitarian concerns” when FDR commanded the Navy to shoot down a plane carrying Admiral Isoroku Yamamoto, the planner of the attack in Pearl Harbor. What then, Yoo asked, does Stevens think of the U.S. “raining missiles down” on Afghanistan, Pakistan and Yemen?
After 9/11, the Bush administration expanded presidential powers to reach into matters of national security. Critics of this expansion of power, ranging from academics to Supreme Court justices, thought Bush’s actions were unconstitutional and even illegal. Through an executive order, the Bush administration approved a “terrorist surveillance program,” which authorized the National Security Agency to monitor communication (phone calls, e-mails, Web browsing, text messaging) between parties believed to be beyond U.S. borders, without a warrants, as part of foreign intelligence collection. The issue of “indefinite detention” has been controversial, and some groups, like the American Civil Liberties Union, believe the Patriot Act allows for such detention, which has been utilized in the military detention facility at Guantanamo Bay, Cuba.
Yoo wrote that President Barack Obama “cannot keep his promise to the American people to fight al Qaeda with all of the tools at the presidency’s disposal if he appoints a justice who will continue to obstruct and second-guess the decisions of our military and intelligence officials.”
A National Public Radio piece broadcast right after Stevens’ retirement announcement said “the decisions Stevens is likely to be remembered for most are those he authored on national security and presidential power.” Two notable cases are the Hamdan 5-3 decision in 2006, which challenged Bush’s plan for military tribunals at Guantanamo, since they would break the Geneva Conventions, and the 2004 Rasul decision, which allowed detainees at Guantanamo to challenge their detainment in federal court. (Legal analyst Jeffrey Toobin said Rasul was the first time a president lost a major civil-liberties case in the Supreme Court during wartime.) These two Supreme Court decisions forced a redefinition of the Bush administration’s Guantanamo policy.
And both of these decisions also had “profound implications for the limits of presidential power,” according to NPR. Stephen Vladeck, a law professor at American University who served on the legal team that successfully challenged Bush’s policies in Hamdan, agreed. He said history will look back at these verdicts as some of Justice Stevens’ most important contributions to American law, in part because since he “reaffirm[ed] the role of the courts during crisis times” and directly impacted operations at Guantanamo and in the Bush administration’s war on terror.
Robert F. Turner, co-founder of the University of Virginia’s Center for National Security Law and a former chair of the American Bar Association’s Standing Committee on Law and National Security, acknowledged that Yoo “gets criticism from a lot of people about his views of presidential power,’’ including opinions he rendered while a policy lawyer in the administration of President George W. Bush that gave virtually unlimited authority to the president as commander in chief.
But he criticized Yoo as being “irresponsible,” for suggesting that judges are obstacles to our military operations. If anything, Vladeck said, the judges are mandated by the Constitution to serve as checks on the administrative and legislative branches of government.
“What John Yoo calls an obstacle, I call a separation of powers,” Vladeck said, describing the High Court’s checks on executive power as an “inescapable reality of our judicial system.”
It’s especially important for the justices to assert their opinions “on issues where public sentiment is against them,” said Vladeck, adding that national security may be one such issue, but it’s not a reason to cherry-pick a justice who will be friendly and “unobstructive” to Obama’s national security agenda.
As for whether one’s national security stance will—or even should—play an role in Obama’s nomination process, Vladeck said that it’s fair to question any judicial nominee (at any level) about his view of “the separation of powers in any case, including ones that implicate national security.” But, he said he would draw a clear distinction between that and asking what the nominee thinks America’s stance on national security should be.
Turner, however, said certain powers given to the president, specifically regarding foreign affairs “are to be unchecked” and, as Chief Justice John Marshall said, that the courts have no right to second-guess these decisions. He added that, though the Supreme Court likely would not approve of Yoo’s opinion, it is “a reasonable view” with a “strong case in both practice and in text.” Turner referred to the 1944 case in which the Court upheld Japanese detention camps, even though thousands of Japanese—many of whom were American citizens—were interned simply for being Japanese and for spreading fear and vulnerability among a paranoid American populace.
Vladeck said that Yoo’s “kind of sentiment is deeply troubling,” and that a Supreme Court justice ought to possess independent thought regarding myriad political issues—which is why they are appointed for life terms to dictate the law of the land.
Turner admits that if it were his call, “I would not appoint a justice who I thought would be soft on national security…and on the other hand, I wouldn’t want someone who thinks civil liberties don’t count.” He said that beyond a justice’s background, religion and gender, you want people who are “relatively moderate, intelligent, honorable, whom you can rely on to do the right thing.” He said that of the names that have been tossed around as potential nominees, “most of these names strike me as being in that category.” And that’s regardless of their opinions on national security.