Make no mistake: The United States will hunt down and punish those responsible for these cowardly acts. […] We have been in touch with the leaders of Congress and with world leaders to assure them that we will do whatever is necessary to protect America and Americans. We will show the world that we will pass this test”, declared President Bush on September 11, 2001. On that date, four coordinated suicide attacks led by the Islamist group Al-Qaeda upset the whole American nation, causing the death of 2,996 people. 9/11 was not only a national drama, it also led to the redefinition of American foreign policy. Whereas the United States had built a strong hegemony in the ruling of the world, this attack on its soil was seen as a direct threat, not only to its diplomatic leadership but also to the American national security and values. The U.S. promptly responded to the 9/11 attacks by introducing anti-terrorist measures (the Patriot Act being one of the most famous measures) and by invading Afghanistan in order to depose the Taliban regime which had protected and nurtured the Al-Qaeda network. Therefore, a “war on terror” was declared by President Bush on September 20, 2001: “Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated. Since then, terrorism has been considered as the number one enemy to the American Nation”.
Of course, military actions are no foreigner in US history, but the “war on terrorism” seems to mark a turning point in the running of foreign policy. Many of the traditional bearings of war were upset, notably as terrorism quickly appeared as a singular enemy, thereby forcing the U.S. President and Congress to adopt new strategies, both being committed to the leading of any war. On that point, we can actually compare the “War on terrorism” to the Cold War. Since the Cold War also appeared as a new war – unconventional war, proxy wars, soft power, …-, the War on terrorism essentially poses a similar dilemma: how to share war powers between President and Congress so as to safeguard the American nation? In the above quote, President Bush declared to be “in touch with the leaders of Congress” in order to protect the American people from terrorism. This is precisely this political relation between Presidents Bush then Obama- with the U.S. Congress that needs questioning and further study, in order to understand how the “war on terrorism” has redefined the equilibrium of war powers between both branches. In particular, the Guantanamo Bay Detention Camp, where detainees captured in the “War on Terrorism” are jailed, can be seen as an archetype of the tensions, the contradictions and the evolutions remodeling the power balance between President and Congress.
1. The “War on terrorism” and the American Constitution: the “alien war”
Fighting a war is a political and diplomatic prerogative which the U.S. Constitution traditionally assigns to both Congress and the President. In 1787, when the U.S. Constitution was written, the Founding Fathers had a classic representation of war in mind, often referred to as “conventional warfare”. It is a form of warfare that is led by launching open attacks, using conventional weapons and strategies against one or more hostile states. In a “conventional warfare”, enemies on each side are clearly identified and armies are raised to fight, right after the war is declared in the respect of Jus Ad Bellum rules. Thereby, the Founding Fathers wrote the Constitution with in mind a war power-sharing able to deal with such a type of war. In particular, willing to establish checks and balances, the President and Congress are granted different and competing responsibilities over military action. According to Article II of the Constitution, the President is empowered to wage war as Commander-in-Chief, to order U.S. troops to fight against imminent attack for 60 days without consent of Congress and can use his veto power to exercise control on Congress war decisions. As the body that represents the people’s will, Congress is also given war powers in Article I, Section 8 of the Constitution: it is able to declare war and to “raise and support army”, in allocating funds for war. Thus, war powers have been shared between the President and Congress so as to avoid unilateral actions in this unique domain that can stake the life of each American citizen: war. Therefore, this check-and-balance mechanism, embodied by the separation of war powers, aimed at conciliating the necessity to think through a decision as important as going to war (Congress) and the possibility to act quickly in case of imminent attacks (President). The third pillar of the checks and balances, the Supreme Court, is empowered to oversee the separation of war powers between President and Congress and has to check that citizens’ rights are not violated, even in times of war. Institutionally, this is how the war powers were distributed by the Founding Fathers.
In practice, however, an ambiguity may exist in the leading of “conventional warfare”, respective powers of Congress and the President often overlapping. Indeed, how can the President lead troops as a Commander-in-Chief if Congress refuses to vote any military budget? How can Congress refuse to support a 60-day mission led by the President if the troops are in danger? How can Congress declare war if the President is not willing to act as Commander-In-Chief? Thus, strong interferences and grey-zones exist between the President and Congress about war leadership. These constitutional ambiguities are the seeds of the war power-sharing disequilibrium that has shaken American institutions since the beginning of the “War on Terrorism”.
The “War on Terrorism” is not “conventional warfare”: according to political scientist René Eric Dagorn, terrorists are particular enemies. Hardly identifiable, launching material or immaterial attacks and acting outside any Jus ad bellum rules, they have been challenging the traditional war schemes. In this way, the ambiguous relations already existing between the President and Congress about war have reached an all time high with the emergence of the terrorist threat. In particular, the 9/11 terrorist attacks were seen as an imminent threat against the American Nation, therefore leading Bush to declare “war on terrorism” as an emergency measure. According to political scientist Bruce Ackerman, this led to the growing legitimation of presidential unilateral action against terrorism, at the expense of Congress. In particular, the American People progressively accepted the growing war power of the President over terrorism, feeling tremendously threatened by this unclearly identified group that “could attack them whenever and wherever”. This growing fear of terrorism among American citizens has helped redefine the power-sharing, since it has pushed for emergency measures on behalf of the Executive branch and a quasi-unlimited war resources in order to win over terrorism. In this context, since 9/11, traditional war power boundaries have been redefined, with the presidential power rising at the expense of the legislative power. President Bush really established presidential hegemony with the war on terrorism according to Ackerman. In particular, the 2001 PATRIOT Act which was signed into law by President Bush in order to fight against terrorism, strongly eroded checks and balances on presidential power. For example, section 103 and 104 permit wiretapping of Americans for 15 days if the Executive Branch decides that there is an emergency situation, without a declaration of war by Congress. This is one of the various manifestations of presidential unilateralism against terrorism, along with other presidential anti-terrorist measures like the 2003 Operation Iraqi Freedom led by Bush or the November 2001 Military order on “detention, treatment, and trial of certain non-citizens in the war against terrorism” passed by President Bush, in particular for detainees in the Guantanamo Bay.
Thus, classic war power-sharing between President and Congress has been challenged by the current “war on terrorism”. This “alien” war has been a priori redefining the institutional equilibrium thought by the Founding Fathers into an “imperial presidency” (Schlesinger, 1973 and Bruce Ackerman, 2013). President Bush in particular and President Obama – more restrainedly- have been war presidents, thereby echoing what Louis Fisher, specialist in constitutional law at the Library of Congress, argued: “The president has been commander in chief since 1789, but this notion that they can go to war whenever they want, and [ignore] Congress, that’s a current attitude”. In this context, the Guantanamo Bay Detention Camp seems to be the archetype of the redefinition of war powers that was sparked by the “war on terrorism”.
2. Guantanamo: the apex of presidential pre-eminence?
Since 2000, either under the Bush or the Obama administration, a certain presidential unilateralism can be seen, in particular through the example of the Guantanamo Bay Detention Camp. Indeed, because of 9/11, drastic measures were taken with any person suspected of terrorism. As we have seen, the American president seized the power to decide alone because of the emergency to act. All terrorists or suspects were sent to Guantanamo, without any exception.
Military guards took the first twenty detainees to Guantanamo on January, 11, 2002. At the time of its establishment in January 2002, Secretary of Defense Donald H. Rumsfeld said the prison camp was established to detain extraordinarily dangerous persons, to interrogate detainees in an optimal setting, and to prosecute detainees for war crimes. These detainees were captured in the frame of the War on Terror. For the most part, they came from Afghanistan, and a much smaller number later came from Iraq, the Horn of Africa and South Asia.
In this new war, Bush and Obama adopted the same unilateralism of their presidential power, nevertheless, they resorted to differing strategies in order to combat terrorism:
A) The Bush presidency and Guantanamo Bay : a case of “presidential extremism”
Bush forgot all congressional rules and demonstrated a form of “presidential extremism” by creating a no-right zone, as B. Ackerman affirms.
This meant a zone not subjected to the protection of the American Constitution. Consequently, the detainees’ fate was beyond Congress’s legislative reach. But the Geneva Convention – protecting the rights of the war prisoners – was a problem for Bush as the War Crimes Act stipulated that any violation of this convention could be sentenced to life imprisonment or to death.
In spite of this Act, Bush succeeded to bypass the Geneva Convention, asserting that the rules linked to the Human Rights did not concern the members of Al-Qaeda and the Taliban fighters because they could not have the prisoner-of-war status as they don’t act inside the regulated frame of a « war » : they don’t fight in the name of a state or a similar entity but for themselves, which excluded them from the war protection (International Committee of the Red Cross). After Bush appointed political nominees at the U.S. Office of Legal Counsel, the Department of Justice advised the Bush administration that the Guantanamo Bay detention camp could be considered outside of the U.S. legal black jurisdiction. The detainees would therefore not be entitled to any of the protections of the Geneva Convention.
Besides, in 2001, the Patriot Act reduced the liberties of citizens by the security argument. Any American could be spied on by the CIA which has access to all the computer database. This act reduced even more the few rights remaining in the Guantanamo camp. The « unlawful combatant » status was created, allowing to detain any suspected terrorist without charge and for an unlimited amount of time. This new status permit to distinguish these « illegal combatants » from the legal ones (the enemy combatants) who act inside the international laws of armed conflict, and so to deprive them of the prisoner-of-war status and of the benefit from the protection of the Third Convention (Juridica International). Military commissions were also created to prosecute detainees held in the Guantanamo camp, therefore a peculiar jurisdiction was established for this purpose.
Moreover, on February 7th, 2002, a Memorandum was published, specifying that the United States should continue “its commitment to treat the detainees humanely (…) to the extent appropriate and consistent with military necessity (…)”.Given the turn of the phrase, the military guards could use torture, justified by « military necessity ». Following this logic, Khalid Sheik Muhammed, alleged mastermind of the 9/11 attacks, endured 183 waterboardings, one of the most contested interrogation methods, which simulated drowning. In fact, with those political tricks, generalized torture could be developed inside the site, in spite of the Human Rights precedents and the Habeas Corpus. In 2005, Amnesty International denounced in a report and by the voice of Irene Khan, its General Secretary, the Guantanamo facility as the « Gulag of our times”. In reaction to this denunciation, in 2005, the Detainee Treatment Act asserted that Guantanamo Bay detention camp was submitted to the general American law and therefore, no inhuman treatment could be authorized or justified.
However, on June 29th, 2006, the US Supreme Court took a decision insuring a minimal protection to detainees. In fact, the jurisprudence Hamdan v. Rumsfeld replaced detainees under the protection of the Common Article 3 of the Geneva Conventions. Following this, on July 7th, 2006, the Department of Defense issued an internal memo stating that detainees would, in the future, be entitled to protection under Common Article 3. To circumvent these restricting rules, two solutions were found, which both reinforced the president’s power to act outside external convention or laws. Firstly, the enhanced interrogation procedures were modified and strictly framed in order to keep them consistent with what the Geneva Convention defines as « torture ». From the 13 torture methods that were applied, they retained the 6 softer, including sleep deprivation as it was one of the most efficient. Secondly, some captives were secretly transferred to other jails such as Thai jails, and tortured outside of the US borders. These captives are named « Ghost prisoners » because they are not traceable.
Thus, the Bush presidency mirrors how presidential imperialism can be facilitated by the “war on terrorism”: bypassing laws and ignoring international conventions, Bush expanded presidential power. The example of Guantanamo Bay reflects this evolution of the power-sharing equilibrium towards an imperial presidency, eroding the legislative power and bypassing decisions made by both the Supreme Court and the international community.
B) The Obama presidency and Guantanamo bay: words vs deeds, a presidential withdrawal?
In the article « Obama and Bush: How do the Presidents compare on Guantanamo Bay? » published in Vice Magazine, Jason Leopold stressed human rights attorney David Remes’ affirmation that unlike his predecessor, “Obama says the right things but does the wrong things”. In 2008, during his presidential campaign, Obama described Guantanamo as a « sad chapter in American history » and promised to close down the prison in 2009, ending the torture. After his election, Obama reiterated his campaign promise on 60 Minutes and the ABC program This Week, as CBS News highlighted (« Obama : we are going to close Gitmo », January 11, 2009).
Obama made compliances with Congress on some points, putting in place an unique system of interrogation technique and imposing a review procedure setting the baseline standard warranting the continued detention of a detainee that turns on whether it is necessary to protect against a significant threat to the security of the United States (Executive Order No. 13,567 (n 66 above) § 2). But he remained strongly opposed to the closure of Guantanamo because of the political obstacles induced by such decisions (Congress opposition plus public opinions). On January 7th, 2011, President Obama signed the 2011 Defense Authorization Bill which contains provisions that put restrictions on the transfer of Guantánamo prisoners to the mainland or to other foreign countries. With this bill, extraditing « Ghost prisoners » was no longer an option. In addition to that, he abrogated the 6 last enhanced interrogation methods: all questioning sessions now had to comply with the U.S. Army field manual. However, it impeded the closure of the detention facility; plus, the bill prohibited the use of funds to « modify or construct facilities in the United States to house detainees transferred » from Guantánamo Bay.
On the other hand, Congress retrieved some power, through its steadfast opposition to the closure of Guantanamo. With this trend, Obama’s first term was marked by a diminution of presidential preeminence. In fact, Guantanamo used to be the symbol of presidential unilateralism and arbitrary decisions under Bush. As Obama wanted to be softer on this matter, Congress recovered power with the Defense Authorization Bill in 2011, and started to counterbalance the role of the president. Therefore, a new balance seems to have appeared with the Obama Presidency.
To recap, the dynamics observed from 2000 to 2012 reflect a growth of presidential power under the Bush administration (right after 9/11 and until 2008) whereas Congress stood back; and then, an attempt to soften and diminish the presidential preponderance, with Congress regaining some power under Barack Obama’s presidency. Nevertheless, some questions have to be raised: can this trend be confirmed in the context of the continuing war on terrorism? The Obama presidency seems to mark a moderation of the executive power: however, can a statu quo be achieved between the president and Congress ? What shape could it take?
3. Institutional and constitutional challenges: Is a statu quo possible between President and Congress?
One important aspect to analyze is whether Congress can assert and strengthen its power in the face of growing presidential power. It’s clear that the unilateral action of the President was rendered legitimate by the context of emergency. For instance, Bruce Ackerman speaks of the “emergency rhetoric”: the President talks of crisis to justify illegal executive actions which will have long-lasting institutional consequences, even long after the crisis is over. The risk is thus the rise of a renewed imperial presidency which is upsetting the balance of powers drafted in the Constitution. Lee H. Hamilton urges Congress to reassert its initial powers because it is the democratic nature of the political process which is at stake. The “power of the purse” is one efficient way still used by Congress to limit the actions of the executive branch, as it had been seen in 2012. The National Defense Authorization Act for Fiscal Year 2012 voted by Congress, which specified the budget and expenditures of the United-States Department of Defense, contained the controversial 1021-1022 subsections. Entitled “Counter-Terrorism”, they authorized the indefinite military detention of persons the government suspects of involvement in terrorism, including US citizens arrested on American soil. It can, by the way, be seen as a recall and reaffirmation of the Authorization for Use of Military Forces (AUMF) voted in 2001 after 9/11, which already granted the presidential authority of indefinite detention. What was the response of President Obama, the champion of the closure of Guantanamo? He signed the bill without modifying it, justifying his decision by saying that: “Even though I support the vast majority of the provisions contained in this Act, which is comprised of hundreds of sections spanning more than 680 pages of text, I do not agree with them all. Our Constitution does not afford the president the opportunity to approve or reject statutory sections one by one”. Through this act, he showed his respect towards the prerogatives of the Congress given by the Constitution.
The tangle of prerogatives between those two branches of power is closely tied to the concept of “War on terrorism”, and on the question of whether it could end one of those days. “Usually if you’re holding prisoners of war, you release them at the end of hostilities,” says Matthew Waxman, a former Bush detainee policy official. But the war on terrorism seems to be endless: in 2014, during a Senate hearing on the AUMF, a top Pentagon official testified that the war on al-Qaeda could last 10 to 20 more years. But the fact is that the nature of the war is more likely to have the president act unilaterally, so what could be the solution? Closing the Guantanamo prison or changing its status could be the first step towards a “normal” era rather than one of perpetual emergency and exceptions. President Obama put a lot of energy to achieve this goal, which was inscribed in his platform during his presidential campaign of 2008. But this promise is still unfulfilled at this stage, the hurdles remain numerous.
First of all, according to a Gallup survey, 66% of the American citizens want to keep Guantanamo open in 2014, a number which hasn’t changed a lot since 2009. Obviously, 9/11 has strongly shaped the public opinion, and how could Congress and the president go against the will of their constituants while they are supposed to represent it? Adding to this political dilemma, 46 prisoners of the prison are considered too dangerous to be released or even tried because of a lack of evidence. Facing a harsh opposition to any alternative, the specific deadline for the closure of the prison has been missed, and President Obama even confessed in 2015 that he regretted not to have done it on the very first day of his first term…
Beyond the question of the end of the “war on terrorism”, another issue that deserves attention is the conformity of the Constitution with this specific type of war. “Pseudowar” was the name chosen by Bruce Ackerman – because it is endless -, it is dealing with both an immaterial and material threat which is hardly predictable because it can be everywhere, at any moment. Hence the permanent restraint on civil liberties and rights, yet strictly defended by the Bill of Rights. Consequently, is there a need to reshape the Constitution to make it more suitable to the 21st century and its modern dangers ? According to Ackerman again, a constitutional renewal is necessary to redefine the balance of power between the three branches, because it was greatly damaged by the terrorist threat. The Founding legacy remains important to maintain, but one of his proposals would be to prevent the President from exploiting momentary panic to impose long-lasting limitations on liberty, through what he calls an “emergency statute”: in times of crisis, the executive authority would be granted extraordinary powers for one week or two to deal with the situation while Congress would be considering the next step. This last one would then have to re-authorize the extension of the executive powers for one or two supplementary months. Each new authorization would require a certain amount of votes in Congress which would be each time higher than before. The prevention of the normalization of emergency powers would thus be guaranteed, allowing a more efficient political organization through the absence of institutional fights. In this way, both the constitutional process and democracy would be truly respected through a sharing of power between Congress and the President. To sum up, the statu quo could only be maintained through a reform of the constitutional process.
“War on terrorism”: a challenge to democracy
More than only endangering American national security, terrorism has shaken the whole American Democracy. In the context of “war on terrorism”, Guantanamo Bay has been the mirror reflecting the power struggles between the executive and the legislative branches. However, could the Constitution be reformed to better suit the modern challenges of the 21st century, such as terrorism? The task seems laborious and requires a strong and determined political will coming from the American People which has to make sure both its fundamental and separation of powers are respected, and from its representatives, President and Congress. However, the stake remains important: restore the democratic and institutional foundations of the American Republic as the Founding Fathers envisioned it.
By Eléa Pays, Sophie Morellon, Laura Cahier
 Jus ad bellum is a set of laws of war that has to be consulted before engaging in any war so as to determine whether or not a war is just. Jus ad bellum imposes rules to follow by any fighting country, like the proportionality principle (the violence used must be proportionated to the attack suffered).
 The Operation Iraqi Freedom consisted in a 21-day combat led in Iraq by a combined force of troops from the United States, Australia, Poland and the United Kingdom. It lasted from the 19th of March 2003 to the 1st of May 2003 and resulted in the capture of Baghdad and Saddam Hussein by the American forces.
Stathis Kalyvas, « The Sociology of Civil Wars: Warfare and Armed Groups », Armed Groups Project, January 30, 2006.
René-Eric Dagorn, « L’hyperpuissance comme illusion », EspacesTemps.net, 2004
Bruce Ackerman, The Decline and Fall of the American Republic, Belknap Press, 2013
Andrew Rudalevige, The New Imperial Presidency, University of Michigan Press, 2006
Lee H. Hamilton, Strengthening Congress, Indiana University Press, 2009