College of Law

Fall 2008 Miller Lecture

The 43rd Distinguished Henry J. Miller Lecture

The Bush Administration's Legal Strategy in the War on Terror: A Retrospective
John O. McGinnis

Stanford Clinton Sr. Professor of Law
Northwestern University School of Law
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(Introduction by Dean Kaminshine not transcribed)

JOHN MCGINNIS: Well, thank you very much

for that extremely generous introduction.

And I'm really very honored to participate

in what I see as an amazingly distinguished list of speakers.

Today I may speak a little bit less abstractly

than some of your previous speakers,

who I - philosophers and theorists of law

because I'm going to actually look at some

of what's actually been happening on the ground of law,

the Bush Administration's legal strategy

of the War on Terror and evaluate that.

There - I think the legal performance

on the War on Terror is really much

like the Bush Administration's

performance in prosecuting the war in Iraq.

In both cases, in my view,

unlike some other critics, in implausible

objectives but employed mistaken,

often counterproductive

and occasionally foolish strategy.

It's just as important to review

the mistakes of the Iraqi war effort

to avoid similar errors in the future;

it's timely to review the

Bush Administration's legal strategy

so that future administrations

will not suffer similar defeats

in the courts of law and

in the course of public opinion.

As with the mistakes in the Iraq War,

the Bush Administration's mistakes

in its legal strategy had common roots.

One was, I think, an ideological focus on bolstering

executive power and a consequence lack of pragmatic

flexibility in choosing tactics that would maximize the

chances of gaining public and judicial acceptance of

its framework for detention, interrogation,

and trial of terrorists and surveillance

to protect the American homeland.

The Administration repeatedly failed

to recognize that a reliance on executive

authority alone entailed a high risk

of defeat at the hands of the Court.

In fact, some of its claims of executive authority,

particularly its arguments that the President could

decline to follow treaties in certain circumstances

I think made its case all the harder because they'd

seem so outlandish and extravagant.

Second, the Administration radically misunderstood

and you might say "misunderestimated" the magnitude

of these risks because it radically misunderstood the

changed legal environment for litigation concerning

terrorism in the 21st century.

Many lawyers would reflexively apply a law enforcement

rather than a war paradigm to this litigation and thus be

inclined to give very little deference to the Executive.

Second, since World War II and even the Vietnam War,

every aspect of American life has seen increasing legalization.

And this trend too would lead our legal culture to want to

curb the President's discretion through the prism of legalism

that applies to domestic criminal law, thus meaning that

the President really could not even rely on previous

precedents from a different age of less legalism.

Finally, foreign elites, particularly European elites,

would seek to influence our judiciary to tie down

the Executive so as to essentially tie down Gulliver,

which is how many people around the world see

the United States.

The third systematic error was a failure to recognize

that all administrations tend to lose power as they age,

and wars run a high risk of exacerbating the loss as that

conflict proves less popular than it did when it began.

Of course, the scandals at Abu Ghraib and the more

general lack of particular success in Iraq

couldn't have been predicted.

But an administration's legal high command must

be particularly mindful of the downside risk so as

to minimize the worst possible outcomes.

And any student of American history would tell

you that a president's power tends to weaken

as he grows older in office.

As a result, the Administration's mistake

was not to have taken every practical step

to bolster its legal position as early as possible,

particularly by securing Congressional framework

legislation for military tribunals, surveillances,

and even interrogation because citizens

are generally most supportive of an administration

at the beginning of a conflict. Indeed political

scientists have a name for this.

It's called “rally around the flag.”

The terms of trade of an administration early on

would be more favorable than they became later.

Moreover, the Administration was -

except for a brief period of time between 2000 and 2002 -

had faced a Republican Congress.

This fact alone makes the Administration's

decision not to strengthen its legal position

through legislation extremely imprudent.

The consequences of these mistakes,

in my view, have been grave.

Far from strengthening executive power,

the Administration's policies generate a series

of precedents that have weakened it.

And these losses have contributed to a public

perception that its policy for dealing with

captured terrorists is in disarray.

And still worse, the United States is entrenching

on liberties as never before.

When I think the reality is that the war in

Iraq and the War on Terror has entrenched

on liberties less than previous wars.

And even the detainees at Guantanamo

had greater protections at trial and in detention

than their counterparts in earlier wars.

The unnecessary reliance on executive power

has also permitted foreign critics to claim

that Bush is a lone ranger.

Whereas early endorsement by Congress on specific

policies would have shown what I believe is true,

many of his policies on these matters reflect

the consensus of the American people.

Finally, the legal setbacks have delayed

the trials of terror suspects by military tribunals

and thereby weakened the greatest strength,

I think, of military tribunals, that they strike shock

and awe into the enemy.

Now, this is a fairly critical picture of the

administration's legal strategy.

And before looking at it in a little greater detail,

at least at interrogation and

detention in particular in detail,

I want to say that I do think the Bush Administration

has gotten some things right.

And so I probably so far irritated

some supporters of the Bush Administration,

now I'll proceed to irritate some of its critics.

I think - first, what are the big things it gets right?

First, I think it is right that the Administration

is right to conceptualize the War on Terror as a war;

and second, that in this struggle,

we are obliged to follow only our own laws

rather than to international law.

And I think these kinds of issues will come up

in the next administration and are worth spending

a bit of time on was I think they go to the heart of

conceptualizing the legal matters that we're going

to discuss the details on in a moment.

The 9/11 attack on the Untied States seems

to me an act of war no less than Japan's

attack on Pearl Harbor.

Al-Qaeda was a military organization that

was attempting to harm and disrupt

the United States as a nation state

rather than simply harm individuals.

As such, the action cannot be understood

within a law enforcement paradigm because

that paradigm presupposes two things.

First, the actors are within the bounds of civil society.

Instead, al-Qaeda and other Islamic terrorist

organizations act in a world that predates civil

society though as they are strangers with

no common government responsible for law enforcement.

In a world like that, which Thomas Hobbs

I think accurately described, before government

was instituted to create order and sustain rights,

one doesn't understand al-Qaeda and its malefactions

as taking place within our civil society.

Secondly, law enforcement is really about individuals,

or at least individuals in relatively weak organizations in society,

attempting to take money from people rather than

actually trying to disrupt and overthrow a government.

And there again, that is the object of al-Qaeda.

So I think systematically, the Bush Administration is

correct to think of this as a war; and therefore,

to understand al-Qaeda and its participants

as enemy combatants to be held in detention

and to be prosecuted under war crimes tribunals

rather than through our system

- our court system of justice.

Secondly, it seems to me the Administration is

also wholly correct in making a sharp distinction

between our own domestic legal obligations

and those of unincorporated international law.

Any administration should scrupulously adhere to

all constitutional laws and statutes that

have been enacted through our carefully wrought

procedures of bicameralism and presentment.

International law of course also can combine

through treaties or by decisions of the legislature

to make that law binding.

But when critics of the Bush Administration

often denounce it for violating international law,

they don't confine themselves to complaints about

international rules that have become domestic obligations.

They complain, for instance, that Bush violated

an order of customary international law

in invading Iraq or violated - for instance,

without the permission of the U.N. or violated

an interpretation of the United States Charter

proclaimed by other nations or international bodies,

even if the United States has a different interpretation.

They argue the United States should follow interpretations

of treaties of international bodies and committees on

the treatments of detainees, like the

International Committee of the Red Cross.

Incidentally, I've only recently learned,

you might actually have thought that

the International Committee of the Red Cross was

an international committee.

That's what its name for instance sounds like.

But actually, it's a committee made up entirely

- it's a private organization made up

entirely of Swiss citizens.

And that in itself shows that it's obvious

- it's not to disparage the committee

but it shows it as a rather parochial

and narrow perspective that may not take

account of the United States' interest.

The Administration also has no obligation and first

- and the reason it does, the Supremacy Clause

of the United States Constitution makes supreme

the law of the land as treaties and statutes

not what I would call raw international law

and nor do the musings or even formal interpretations

that constrain international bodies apply to treaties

to which we are a party unless the United States is

agreed to be bound by them. More,

it's more also than a formal argument for the

United States to consider itself bound by

international law unprocessed by the political branches.

Such raw international law has a large democratic deficit.

It does not emerge, international law, from any

democratic process but instead being shaped

by unrepresented elites in the form of publicists.

You maybe know - looking - I first didn't really

understand what a publicist was.

You're looking at a publicist now.

It's an international law professor.

And as you probably have learned,

those of you who are students from your courses,

law professors have many virtues.

But being representative of their fellow man on

any dimension is not among them.


Moreover, the American people,

who are obviously far more familiar with

what is going on in Washington than

what's going on in Geneva,

are likely to have more influence on the content

of the norms emerging from

our legislation than global institutions.

Democracy has its defects.

But elections and open debate give

the assurance that norms that

our political branches choose are

likely superior to those that emerge

from the uncertain process of international law.

Indeed, I'd make a somewhat stronger claim

that American law is not only better than

raw international law for Americans,

which I do see as the touchstone of what's

- of what's required for

an American statesman to consider;

but also, it's better for foreigners,

more likely to aid foreigners than international law.

Because of the position of the United States

as the dominant economic and military power

of the international system, it is strong incentives

to provide international public goods such as

the appropriate use of force

including appropriate detentions

of terrorists and prosecution of terrorists

that benefit foreigners as well as Americans.

Thus is seems to me that when the Administration

says we're going to follow our

own law and not international law,

it's not only doing justice to Americans;

but it's doing a favor to people around the world.

And so in that - and so for these two

very important conceptual matters about the position

of our law versus international law and the idea

that this is a war rather than

some criminal law enforcement action,

I am wholly stand with the Bush Administration.

Indeed, what pains me is that after getting

these conceptual matters correct,

I think it's made some very substantial mistakes in carrying

- in carrying out the details of these concepts and getting -

and obtaining public support from Congress for them.

And let me now go through a few of these matters.

First of all, I'll begin with detention and talk

a little about war crimes as well.

And then I'll go on to interrogation and finally

try to draw some general lessons really for

any administration, which I think that's the purpose of this.

And let me just make one other point

before I begin on this point.

In looking at the Bush Administration's failures,

I'm quite - understand that I may not have

done a better job if I were in the Administration.

The attacks on 9/11 were a tremendous trauma

not only on the psyche of Americans

but a tremendous problem for the Government

just to understand how to reorient its policies

and its laws to address.

And the fact that I think the Bush Administration

made some serious mistakes in this way

does not mean I think they acted unethically

or with anything other than

the greatest attempts at patriotism.

But let me now focus on the question of detention

to show in detail how some of the more general mistakes

that I've described manifested themselves.

First, the United States faces three issues

in adapting the war paradigm of hold

- to hold prisoners of war are captured in

the War on Terror.

So that's three issues that I think

are harder that require some consideration.

Because of course, war - prisoners of war

have been held from time immemorial.

First, unlike conventional wars,

prisoners taken on the war against

al-Qaeda and other organizations are

generally not in uniform and sometimes

do not in fact proclaim their

allegiance to the organizations.

Their uncertain and often opaque identity

creates a far greater risk than individuals

would be captured and held in error.

Second, the war against al-Qaeda does

not have as clear a stopping point

as conventional wars,

whereas conventional wars generally can be ended

by capturing all the enemy's territory.

In particularly because they are part of

an irregular army and cannot be forced by

their own domestic law to persist in fighting,

that length of detention may extend long after

their allegiance to the cause has dissipated.

The third difference affecting detention between

the conventional war and the War on Terror

is more general.

The Bush Administration should have realized it

would have faced a much more concerted

legal effort to release prisoners than

administrations of conventional

- of previous conventional wars have faced.

Partly, this was simply the predictable result of

applying a war paradigm to a new kind of war.

But partly it was the result of the

increasing legalization of American life

in the globalization of law.

The precedents limiting the Administration

- limiting challenges to its policy that the

Administration relied upon were generally

from the World War II era.

Yet since that time, Federal courts have

constrained Government discretion in ways

that they did not at the time of World War II

in every thing from running schools and prisons -

- they just decided, eight years ago, a presidential

election - is a short stop to bringing more

judicial regulation to war from these other actions,

particularly when that war is not conventional

and may appear more closely related to law enforcement.

Moreover, since that time, the world has become smaller.

Other elites have become more intensely interested

and influential in law that touches international matters.

The elites were likely to clamber for judicial regulation

both because it was in keeping with the paradigm

of their own nations and because it would tie down

what was perceived as the arbitrary power

of what a French foreign minister famously

called the “hyper power,” i.e., the United States.

So in light of these potential problems,

the Bush Administration, it seems to me,

should have immediately acknowledged

the differences that unconventional wars

made to legal frameworks for holding detainees,

and tempered the anomalies through generous use

of legal process with military tribunals perhaps

providing the initial process because the novelty

of the legal issues and the possibility that its war effort

would become unpopular and more liable

there for practically the legal attack, it should have,

as soon as practical, saw Congress endorsement

of these new legal structures through framework

legislation that would have supplemented

the military process with review by

Article III Courts under a deferential standard.

Unfortunately, however, the Bush Administration

took a much more grudging approach to the granting

of process and resorted to unilateral strategies that

could be easily portrayed as lawyers' tricks.

For instance, at first the Administration argued

that it had no obligation to give any substantial process

to determine whether those caught in the battlefield

were in fact enemy combatants, even if those enemy

combatants were also U.S. citizens.

This was a mistake even as a matter of theory,

not to mention prudence.

The key question in determining whether

the war or law enforcement paradigm should be applied

is whether the individual's actions should be judged

inside or outside our social compact as I've discussed.

A citizen is within our social compact and only

should be treated within the war paradigm

if he has chosen to be an enemy combatant,

in other words, to ally with some foreign power.

He thus certainly deserves substantial process

to challenge his status before being treated as

literally outside the pale, which of course is a phrase

that comes from being treated as without

the protections of the British Empire.

The Supreme Court did not find the question

in fact of whether a citizen should receive some

impartial process on his status a difficult one.

In Hamdi vs. Rumsfeld, which considered

the position of Yaser Hamdi,

an American citizen who was picked up

on the battlefield in Afghanistan,

the Court held that Hamdi had a right to challenge

his designation as an enemy combatant.

Only a single Justice would have automatically deferred

to the determination on Hamdi's combatant status.

I think that shows how mistaken the Bush Administration

was that they had an 8-1 defeat.

Well, the Court only directly resolved the question

of a United States citizen's due process rights;

the Bush Administration should have extended this right

to non-citizens as well. By showing it was scrupulous

in taking care not to have incorrectly detained non-combatants,

the Administration could have forestalled criticism and

show that the regime was not lawless

but more carefully considered.

Even more importantly, the more internal process it gave

on such issues, the less likely the Supreme Court

would have been to hold that the

- that these people have the full rights of habeas corpus.

Some swing justices like Stephen Briar care about

preventing errors and are not much concerned

about the legal rubric under which this process occurs.

It's true that this process provided by the

Administration would not have been costless,

but these costs would have been much less

than the benefits of legitimacy I think it would have brought.

For similar reasons, the Administration should have been

from the outset publically provided process for determining when

individuals were no longer substantial threats or could provide

substantial information.

Because members of al-Qaeda are not our regular combatants,

not common criminals, the United States I think is quite right

to say it can't be put to the choice of either trying them

or letting them go out and go to the battlefield again.

And indeed, some of the people they released from Guantanamo

went back and were killed in Afghanistan fighting again.

Nevertheless, a process for reviewing their dangerousness

and information value, a public process might have given

detainees incentives to consider, rethink their commitment to Jihad;

and even if it didn't, would have again bolstered the legitimacy

of detention in the eyes of Americans and in the eyes of the world.

Whatever the Administration did, however,

lawyers in the United States were going to file lawsuits

on behalf of prisoners seeking more and more better process

and rights indistinguishable.

That's what, of course, they would try to do for American citizens.

The basic response of the Administration for this prospect was

to keep detainees at Guantanamo. Because Guantanamo is

not part of the United States and yet controlled by it,

these legal strategists believed it was the perfect place

to hold the prisoners more easily because they would be within

our control and yet immune from the reach of the United States law.

Of course, that is really depending on a kind of legal fiction.

To split metaphysical sovereignty from control was extremely

clever and indeed it had some basis in the case law,

in a case called Estranger,

which is decided again a World War II case.

But once again, the Administration failed to realize that

this case would have little strength in the new world that's

been created of legal process in our age.

Moreover, the decision to use Guantanamo as

this legal device had much larger repercussions.

It suggested to the outside world that the United States

was playing legal games rather than following any principles of law.

And because the administration was making these

decisions without legislative input,

it would be portrayed as an eccentric

and malevolent rather than as a faithful agent

of the American people.

It's is the Bush Administration's legal strategy,

I think, that in large measure has made Guantanamo

a symbol of lawlessness throughout the world.

Instead of resorting to this kind of lawyer's cleverness,

I think the Administration should have gone

to Congress to bolster its base.

If Congress had from the beginning endorsed

the framework for holding detainees outlined above,

the Court I think would have been unlikely

to disturb the settlement.

The reasons for such deference are both

doctrinal and practical.

As a doctrinal matter, the Court is obligated

to give substantial deference to Congress'

weighing of the costs and benefits.

And moreover, just more importantly than the doctrinally,

from a strategic perspective, whatever degree

of deference the Court should give to the Executive

as a matter of normative principle,

as a matter of real politique,

the Court is much more reluctant to disturb

the judgment of Congress than a

decision by the Executive.

Such action would fly much more clearly

in the face of popular will,

and a Court is much less likely to do that.

Now, the Court actually has struck

down something that Congress

- about the war crimes tribunals;

and I want to get to that in a moment.

I'll show how that does not, I think,

undermine this thesis.

This Administration strategy of getting

Congressional approval would have had

a lot of advantages.

It would have had advantages in the sense of,

I think, entrenching a war paradigm.

Could have actually - that could have

- Congress could have ratified that.

And I think there's no doubt there

would have been overwhelming vote for its policies.

These policies were actually

not unpopular in Congress,

particularly early on when I think

the Administration should have sought these policies.

War with such a framework statute would have also

permitted the United States to hold these prisoners

as they did German prisoners and other previous

captives in the United States.

The Administration could have dispensed

with the need for Guantanamo and thus

avoided at least some of the negative symbolism

from holding captives in a place easily portrayed

as a kind of netherworld.

It may have been argued that the Administration

- so I think those are substantial advantages.

As I see my - I want to get to

the policies on interrogation.

And the policies for prosecuting people

for war crimes were much the same.

The Bush Administration should have gone

very early on for a framework statute

of prosecuting these people for war crimes.

Indeed right after 9/11, I think it would have easily

- even if the Senate were Democrat,

gotten essentially what it wanted

in the aftermath of 9/11.

And while it is true that recently,

the Supreme Court in a case called

Boumediene has held that there are

habeas rights; and therefore,

Congress could not set up a structure

of due process outside the context of habeas

- I think the Court - I think the Administration

would have been much more likely to win

that case five years ago.

The case came up only in

- of course in 2008 when Bush is

the lamest of lame duck presidents.

Right? And president

- and they're going

- courts as a strategic matter,

political scientists will tell us

- of curbing the wings of a lame duck president

rather than the eagle that Bush would have been

if this case would have come up in 2003 or 2004.

With strong, still Republican majorities in Congress,

I think that would have made a lot of difference

to the swing Justice, Justice Kennedy,

who has been known to take into account

such extra legal considerations on occasion.

So I don't think that at all undermines

the point that the Bush Administration

could have been much more successful

by going earlier on to Congress,

not only with detention but in a framework

for prosecuting people for war crimes.

Now let me go on to interrogation,

which has been perhaps the most

controversial aspect of the Bush policy.

Once again, the Administration had

serious issues to address.

I think people that think this is

an easy matter are just fooling themselves.

On the one hand, any administration

would have wanted to be able to

use interrogation methods that would

elicit information to stop attacks

on the order of 9/11.

On the other hand, any administration

should have been eager to show

that the United States acted humanely

with respect to even the egregious wrongdoers

it held and particularly follow

the strictures of the Torture Convention.

Restraint and adherence to our own laws

underscores the attractiveness of

our civilization in the global battle

of ideas against radical Islam.

This American tradition goes back

to the Revolutionary War where

George Washington insisted that

our armies take prisoners,

even after the Hessians slaughtered

his soldiers without quarter at Fort Washington.

That balance may have best again

been struck I think by going to Congress

and seeking framework legislation.

Congress would - and I think would have

authorized the Administration to use some

harsher interrogation methods short of torture

in circumstances where such methods were

necessary to get information to forestall attacks.

A cab - a system requiring personal

and recorded authorization by a Cabinet official

in specific cases would have provided

substantial safeguards that these methods

would be used only selectively and where necessary.

To be sure, this authorization would have been

a messy process and would have publicized

the Administration's methods when secrecy

could itself have value by making it harder

for the enemy to prepare for them.

But nothing on a matter as controversial

as this is kept secret for long in Washington.

And when Congress did seek limits,

the Administration's interrogation process

was completely predictable.

In 2006, it was also a messy process.

So it was a choice of a messy process

earlier or one that was later.

The liberation and consensus that Congress

could have provided earlier on would

have educated the world to the reasons

that such interrogations were needed

in the interest of the safety not only

of the United States but of other nations

in an era of weapons of mass destruction

and terrorism.

But whether or not the Administration

chose to go to Congress to assure

the legality of its interrogations methods,

it could hardly have chosen

a worse strategy than it pursued.

In a memo written to Alberto Gonzales

on August 1st, 2002,

the Office of Legal Counsel provided

a general interpretation of

the Torture Convention by

limiting the concept of torture

to the infliction of physical pain

“equivalent in intensity to pain

accompanying serious physical injury

such as organ failure or the impairment

of bodily function.”

According to the memo, the only psychological

harm that amounted to harm would be

psychological harm leading to significant

duration lasting months or even years.

Finally, the memo concludes that the

President has the constitutional authority

to set even those strictures aside if

they impaired his ability to order interrogations

pursuant to his power as Commander-in-Chief.

It's actually not my purpose here to

dispute these conclusions as a legal matter

but to show that whatever their correctness,

the memo was utterly counterproductive

and should have been as such at the time.

Indeed, my strongest reaction as a former

official at the Office of Legal Counsel where

the memo was written was not that of other observers.

Some other observers attacked

the legal analysis as shoddy.

Others attacked the morality

of the lawyers or their ethics.

Instead I saw in some sense from an

old bureaucratic perspective, it was worse.

It was a bureaucratic blunder committed

not so much by the attorneys at the OLC

but at the White House Councils and others

who asked for this kind of obviously

counterproductive analysis,

refers to anyone who worked in the

collaborative process of the Executive Branch.

It was clear that this memo would be leaked

and leaked at the most inconvenient

time to the Administration.

One rule I had at the Office of Legal Counsel

was to consider how the phrasing and framing

of a memo I wrote would look on the first page

of the Washington Post. {laughter}

And it didn't take much to see that that memo

wouldn't look too good. {laughter}

And it would allow people to proclaim

in fact that the Bush Administration's view of the

War on Terror really was radical and unbounded.

And in turn, that would have had a

very bad affect on the Administration's efforts

in courts because courts would take account and say,

“Well, why would we give discretion to

this kind of administration?”

Particularly when a statutory analysis

was conveying with the claim

that the President has authority to

disregard limitations of the Torture Convention

whenever he thought this was necessary,

anyone would have predicted a political firestorm,

that it would undermine support for

harsh interrogation methods even

in the limited circumstances when

they may prove to be necessary.

Assuming that the Administration chose not

to obtain framework authorization from Congress,

which I think would have been a far better strategy,

there was still many more sensible ways of proceeding.

A far better way would have been to catalog

the kind of interrogation methods the Administration

actually wanted to use and to explain in some detail

why these methods wouldn't amount to torture.

This memo would have been a far more limited

and less controversial opinion, although some

surely would have disagreed with its analysis.

Of course, also, you wouldn't have needed to

talk about the President in that

kind of circumstance

- the President's ability to disregard the

strictures of the Torture Convention,

which was I think the part of the analysis

which was most criticized.

And in fact, this is shown.

A subsequent memo from

the Office of Legal Counsel after the fire

- the predictable firestorm revoked the

2002 memo in expressly stating that

it was unnecessary to reach the issue

of the President's constitutional authority.

In my experience, the institutional inclination

of the Office of Legal Counsel would

have been to avoid such abstract questions,

particularly in this kind of controversial case,

and limit legal analysis to the actual practices

the Administration was considering.

Thus it seems to me the more sweeping claims,

particularly about the President's

Commander-in-Chief power,

seemed to me to have been motivated

by one of the real errors in the

Bush Administration's strategy

- its ideological interest in restoring

general Executive Branch authority.

I think that is a mistake.

As a lawyer to the President,

you want to achieve his policy objectives,

not some abstract ideological claims

about executive authority,

even if you think those are correct.

But moreover, it seems to me fanciful

to believe that the unilateral declaration

of the Office of Legal Counsel,

known as the foremost defender of executive power,

can accomplish the goal of pushing the

President's executive authority in court.

And by putting that expansion, it seems to me,

in the context of what seemed to be a

limitless power to torture detainees,

the memo set back badly

the cause which it was trying to promote.

I think that's the story. I could go on,

but I don't have the time for your questions.

On surveillance, I think the story is much the same.

It was an opportunity to get framework

statute I think early on.

But let me end by drawing some conclusions

because I do think the purpose of this

is really as a kind of letter to the next administration.

I know it's a practice of the President himself.

Every president leaves a letter for his

- the next administration.

Mine is much less important than that.

But it's trying to leave

- at least from an outside observer though

who has worked within the Administration

- some notes for what a future

administration should think about.

Because all administrations, particularly today,

are going to be confronted by some

very hard questions in the area of national security.

So the Administration's legal strategy

on detainees in the War on Terror

has been deeply flawed.

Because of its interest in establishing powerful

precedent in favor of executive powers,

it took bold positions that carried

substantial risk of judicial repudiation

and failed to achieve

- obtain legislative endorsement at crucial times.

As a result, the Supreme Court has said

on three occasions the President was acting illegally,

confirming an impression the President

was a rogue operator operating

outside the established channels.

The lessons for future administrations

it seems to me are clear.

First, recognize that we live in a time

of much more activist courts,

even if we think that's a mistake.

And we - and this is true;

and it's going to spill over even in the

area of foreign affairs,

particularly when the matters of foreign affairs

also seem to resemble things that courts generally

have focused on like punishing people.

The fact may be bemoaned, but it can't be ignored.

And the reality of their possible interventions must be

factored into any strategy from the outside.

Second, rely more on Congress than on courts,

particularly when the President enjoys support

in the initial stages of conflict.

It is the executive power to persuade

from a position of strength rather than

the formal legal powers of the President

that seem to me the President's greatest asset.

But generally, it is a wasting asset;

and thus the President should translate it into

more lasting legislative tools before

the dissipation of that great bully pulpit power.

The President may have lost the war in Iraq.

Still we still don't know about that because

he did not call in enough troops

after the fall of Baghdad.

But he's - he I think had a similar reason

for losing substantial losses in his legal wars

because he didn't call on citizens

through their representatives to rally around

the new carefully considered paradigm

that I think the United States needs for

detention, interrogation, and trial on enemy combatants.

So the real, I think, failure here is to realize

that executive power, which is very robust,

to be effective in a long-lasting way must

be translated through the democratic process

into education and therefore a

more enduring basis of support from the American people.

Thank you very much. {applause}

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