Who is the decider? by MT Nguyen, NYC

President Bush is notorious for saying that he is the decider. This raises more than a few questions, but one essential question, both for politics and the constitution, is on what grounds and to what scope is he the decider. The question is of great importance because it touches upon the most controversial aspects of the current administration’s actions: its policy on detainee treatment, the existence of Guantanamo Bay, wiretapping of domestic communications, the extensive use of executive signing statements, etc..

There exists a limited consensus on the question of scope. For example, there are widely accepted limitations on the executive’s powers, particularly involving the balance of its powers in relation to the powers inherent to congress [Click here for case]. And there are widely accepted restrictions on certain exercises of executive power, for example, certain claims to executive privilege [Click here for case]. Other limitations have proven more controversial, in particular, the executive’s powers in times of war. One gets the impression that Bush and his supporters believe that, in times of war, he is the decider on all matters requiring decision. One can question whether this is true, and this question relates to a very old question extending beyond a parochial concern for the US constitution. This is the question of the grounds of political authority.

But we can begin with the constitution, because the debate is often framed by conflicting claims about what the constitution asserts: some have decried what they see as Bush’s shameless unconstitutional power grab, while others recognize in his actions a more principled reassertion of the executive’s rightful constitutional powers. The constitution itself, particularly Article II, articulates the broad powers and responsibilities of the executive, and we would hope to find therein a clear statement of the scope of executive authority. However, we are disappointed if we believe a careful reading will resolve our current disputes. Although the executive is commander in chief of the army and navy, it does not follow that sole authority over the army and navy is vested in the executive. Congress, for example, with its powers of advice and consent authorizes the use of the armed forces.

Constitutional answers to other questions are difficult to locate. Can Bush rightfully deploy forces to guard and maintain a prison camp without the express approval of Congress? Can military tribunals try and convict non-military citizens without the express approval of Congress? As constitutional questions, the answers rest on whether such actions fall exclusively within the purview of the commander in chief. Unfortunately, for anything the constitution explicitly asserts, there are plausible answers on both sides. Since the commander in chief should have wide latitude with respect to military decisions, and these are military decisions, the answers could be positive on both counts. On the other hand, the commander’s latitude to decide over a matter is possible only when such matters are construed, via congressional authorization, as military; in the absence of such, the executive is overreaching and treating a civilian matter as a military one. If so, the answers could be negative on both counts. Looking only to the constitution, we are left dangling.

If we want to know whether a particular exercise of executive authority is justifiable, we must have an independent normative conception of the rightful exercises of political authority. No legal document alone can decide this, for the morality of the document can always be put into question.

Focusing solely on the context of the executive’s authority in times of emergency (e.g. war), we can ask whether any plausible normative conception of political authority can justify undisturbed discretion to make decisions. I take up this extreme case because that is the thesis some want to defend, namely: in times of emergency, the judiciary and legislative branches should give great (more or less complete) deference to the executive. That is, in Bush’s words, in matters of war, he is the decider. What could ground such an extreme picture?

In their recent book, Terror in the Balance, Eric Posner and Adrian Vermeule argue that theoretical competence justifies this degree of deference. In particular, the executive is, given his authority over the intelligence community, better placed than the other branches to deliberate and decide on matters of national security. In emergency conditions (which, it should be noted, they believe hold now and indefinitely into the future), its superior theoretical competence shouldn’t be questioned by institutions not well equipped, or equipped at all, to deliberate in this domain. Second guessing decisions from experts predictably leads to relatively worse outcomes.

Leaving aside the empirical question whether the executive branch indeed has the relatively superior theoretic competence they claim, I want to focus on the concept of theoretical competence and whether it is suited to justify what many deem to be the Bush administration’s moral excesses. I believe it is not.

The thought that theoretic competence justifies authority rests on the old idea that knowledge or justified belief is the surest route to making the right decisions. Of course, that is true if the only considerations in play are factual ones. For example, in looking for a diagnosis of an illness, if getting well is an unquestioned good, turning to the expert in medicine is rational. The expert is instrumental to getting what I want. Once given the diagnosis, it is defeats the very purpose of seeking an expert to then engage in second guessing. Even if the expert turns out to be wrong, the decision to accept the expert’s (the authority) diagnosis is rational. So far so good.

However, if the deliberative field changes to include normative considerations about what is good and bad for me all things considered, the theoretic expert, while still useful, cannot be decisive to the rationality of my decision. If the doctor tells me I have high blood pressure and should therefore exercise and eat less salt, his authority extends only to the factual claim and not the normative one. That is, whether I decide to exercise depends upon whether, considering all the reasons which apply to me, the balance of reasons falls in favor of doing so. The theoretic authority cannot decide that for me. I need not, and arguably should not, defer to the doctor’s authority with respect to that question.

These considerations bear on the question of what powers the executive should have in emergency conditions. Posner and Vermeule argue that theoretic competence justifies great and (more or less) unchecked executive powers. However, even if it is true that the executive is the relative expert in matters of national security, that alone cannot decide the question of whether, for example, torturing detainees is a good idea. The good in question is not merely technical or instrumental, e.g. the question whether torturing elicits useful information, but normative. That is, we want to know also, and more importantly, whether torture is an activity we can live with, and whether it expresses who we are as a nation. These are ethical questions. We can leave technical matters to the technical experts, but we should not leave deliberation on ethical questions to them. Deliberation on such questions is up to all of us. More specifically, congress and the judiciary should play a major role in shaping our political stance on these important ethical questions. It would be an absolute failure to live up to their responsibilities for these two institutions to defer to the executive. If it should appear that in questions of life and death, the technical question of how to preserve life acts an ethical trump, that is only because we often make the judgment that life is worth preserving. That judgment is not always decisive however (as Socrates long pointed out), and at any rate, whether it is or not should not be decided only by those with knowledge of technical facts.

I conclude then that the authority to deliberate on ethical questions rests with all three branches—in these important matters, there is no one decider.