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Yale Law Dean Koh Urges Checks and Balances in National Security Policy

December 08, 2008

During the Owen J. Roberts Lecture in September, Yale Law School Dean Harold Hongju Koh urged a return to the pre-9/11 constitutional system of checks and balances after a presidency that he said expanded executive power to protect national security.

Unchecked executive power is self-defeating and leads to presidential political isolation and lack of popular support, Koh argued. [Watch the lecture here.]

Prior to Sept. 11, 2001, "No person or group could act outside the law," he said. "We didn't infringe on civil liberties without legislation. Citizen and aliens were seen as equal with respect to social and economic rights."

After the attacks, he said, President Bush claimed to exercise unfettered power to create "law-free" zones where enemy combatants were deprived of judicial oversight and perceived "enemy aliens" were stripped of rights. Koh made these comments at the National Constitution Center nearly two decades after his book, the National Security Constitution, was hailed by the American Political Science Association as the best scholarly book on the presidency in 1990.

Drawing on the book, Koh said through much of its history, the United States has operated under a "National Security Constitution" in which the president, Congress and the courts shared responsibility for the administration of foreign affairs.

From time to time, one or more parties have gained the upper hand. In 1936, the Supreme Court held in U.S. v. Curtiss-Wright Export Corp. that the president is empowered to conduct foreign affairs as "the sole organ of the nation" in foreign affairs. By contrast, the Supreme Court limited presidential authority by addressing whether and when the President had authority to act without Congressional authorization in Youngstown Sheet and Tube v. Sawyer (1952).

Koh argued against presidential unilateralism and in favor of balanced institutional participation, in which courts and Congress, and the American people - including civil society, the bar, and the media - have oversight. Koh added that even before the election in November, presidential power was receding in the face of a revitalized "national security constitution."

He pointed to four Supreme Court decisions as signs that the U.S. court system is exercising its role as a check on executive authority. In these decisions the Court upheld the rights of detainees at Guantanamo Bay. In particular, he hailed the decision in Hamdan v. Rumsfeld, which he said supported the rule of law during wartime and restored the vision of shared powers.

Koh called on the next president to close Guantanamo and guarantee that reintegrated detainees under U.S. control will not be tortured. He also suggested the new president issue executive orders to end torture and clarify the scope of military authority; to revise national security legislation enacted since 9/11, and to show renewed respect for international law and institutions.