The Presidency in the United States contains many components of which the office is deemed to be the most important and powerful in the developing world; but it does not act alone. Therefore, it is important to study the other branches of government that acted to create and implement policies when considering George W. Bush’s War on Terror. Even after all this time, the situation provokes polarizing arguments by two opposing beliefs; those who support, or those who dispute what Bush and his administration chose to do following the attacks on September 11, 2001. While controversy arose, President Bush was able to follow through with his foreign policy initiative and promote it as a global fight to end terrorism and not specifically a response to 9/11 (Boyle 2008, 191). Although the international impact and relevancy are essential and have thus changed global politics forever, I chose to focus in on the domestic aspects of this issue, instead. Particularly, Bush’s administration and the respective relationship they held with the United States Supreme Court. Though the Supreme Court did issue numerous decisions relating directly to the methods the United States used against detainees during the War on Terror (Wheeler 2009, 677), I will focus more proficiently on the relationship between the court in link with the President locally, and how it subsequently affected their relative powers. My question in place then is, how did the relationship between the office of the President and the United States Supreme Court lead to Bush’s ability to implement the War on Terror?
In order to answer this question, I will begin by giving context for the relationship between the courts and the President. This will comprise of an overview within the executive, and how they interact with the judicial branch within the United States. Then, I intend to look at the events that led up to the War on Terror. My main focus will be on what President Bush and his Vice President Dick Cheney had done in terms of building an administration, as well as reacting early to the attacks of 9/11. Another point I will touch on is the time period of the war itself. Here, I plan on making solid ties between the President, the Vice-President, and the Supreme Court, in order to examine how their relationships developed, discussing the War on Terror with enough detail, and what it meant for the program’s success or failure in the local sense. Lastly, I hope to make a connection between the overview of the situation and the implications of this on going changing relationship between the courts and the White House.
Before delving deeper into any discussion of the President and the courts, it is essential to describe the actual institution of the office within American politics. In the earlier times of the United States, the staff aiding and assisting the President were about a dozen people; still, that list has grown exponentially to a much more specialized staff in the present day (Burke 2014, 352). Of these positions, some are designed to fulfill specific policy sectors, including national security (Burke 2014, 352). I make it a point to mention the size of the staff that supports the President, simply because George W. Bush and the Supreme Court Justices are not the only ones making decisions; there are many intermediaries who also involved.
Along with the expansion of the President’s office, there has been an increase in the functioning of the Justice Department (Yalof 2014, 458). There has also been the creation of the Office of Legal Council, in order to assist the attorney general in advising the President on legal matters (Yalof 2014, 458). The OLC is the body that aids in the creation of a short list of members when there is an opening in the Supreme Court along with their general role as legal council (Yalof 2014, 458-59). The latter is the main connection between the President and the courts; this also represents the ability for a leader who may not have a legal background to gain the required knowledge to craft policy in a way that would not be invalidated by the country’s highest court.
The increase in size of these two areas of government has seen a higher interest develop and in turn, interest groups are now becoming more involved in the process and procedures of government (Yalof 2014, 459). With relevance to this course, the fact that many of these groups have implicated themselves in the process by which the selection of justices for the Supreme Court occurs is an interesting point (Yalof 2014, 459-60). This insinuated that presidents prior and up to the George W. Bush presidency not only had to face obstacles of Congress or the Senate, but also an increasingly powerful set of interest groups. These changes are by no means unprecedented or surprising, but they do force the President, Bush or other, to live and govern within a different reality in comparison to those who held the same office prior to WWII. Hence, President George W. Bush engaged in the War on Terror within the confines of these changes and the question that I am seeking to answer is how the relationship between his office and the Supreme Court of the United States affected his mission. Now that I have laid out the context in which these events took place, it is necessary to examine the events leading up to 9/11.
George W. Bush was sworn in as the 43rd President of the United States of America at the beginning of 2001; nevertheless, it came with a great amount of controversy (Levy 2014). The election was between the Republican candidate George W. Bush and Democratic candidate Al Gore came down to the state of Florida with only several hundred votes separating them (Levy 2014). The appeals for recounts went back and forth until it would eventually reach the United States Supreme Court who ruled that a recount in Florida would not be ordered; this would confirm the Bush victory (Levy 2014). The country’s highest court rarely plays a role in the discussions or occurrences of Presidential campaigns; this was not the case for 2000 (Yalof 2014, 456). George W. Bush had mentioned during his campaign that the goal was to “appoint more Supreme Court justices in the conservative mould of Antonin Scalia” (Yalof 2014, 456). Therefore, it was not only that they helped shape the outcome of this election, but they were also a part of the rhetoric on the campaign trail. This is demonstrative of the fact that the court has substantial power and holds great importance; President Bush experienced this from his first day in the oval office.
There is another important factor within the Bush election that cannot be overlooked. This element is the election of his Vice-President, Dick Cheney. He was interested by the President with many high profile tasks all of which lead from his close access to George W. Bush (Goldstein 2010, 105). Vice-President Cheney was entrusted by the President to negotiate on his behalf in multiple areas of policy such as tax cuts, which is one of the many ways that the position was different than it had been in the past (Goldstein 2010, 105). The relation between the President and the Vice-President was unique in that it was not only professional; there had been an existing relationship prior to them winning the Presidency (Goldstein 2010, 107). I hypothesize then, that the relationship dictates how situations would be handled. In this case, the attacks of 9/11 came early in their term, and initial reactions would have changed based on how close these two bodies in government are.
The famous scene of President Bush getting the news of the attacks while in a classroom in Florida are etched in many people’s minds, but how he reacted demonstrates the extent to which he trusted his Vice-President and what he saw for his reactionary plan. A report of that says that upon hearing the news, Bush asked to get in immediate contact with the Vice-President and FBI director because “we are at war” (Goldstein 2010, 106). By this, it is evident that the President was going forward with the retaliatory war by consulting no one but his Vice-President and FBI Director.
The attacks of September 11, 2001 shocked the world and inevitably the U.S. government as well. President Bush would not take long to enact a response to these attacks and would make this commitment on September 20, 2001 before a joint session of congress and on television to the nation (The Washington Post 2001). In his speech, the President committed to engaging in a War on Terror that “begins with Al Qaeda [and] will not end until every terrorist group of global reach has been found, stopped and defeated” (The Washington Post 2001). The fact that this commitment came such a short time after the attacks, along with assuming what the President reportedly said after he heard of these attacks, is the indication of a clear plan and intention to respond in a specific way to what was occurring.
It was Alexander Hamilton who stated in his Federalist Papers that the role of the commander-in-chief was given to the President due to the fact that he “has the ability to act quickly and decisively in military matters needed to protect the nation” (Wheeler 2009, 683). By this, President bush had decided to take immediate action following the attacks. The Bush administration acted quickly at home by using executive order to ensure that all enemy combatants would face a military tribunal as opposed to a civil court; along with that came no right of a possible appeal for the accused if they were found guilty (Milkis and Nelson 2015, 465-66). It may seem to contravene a law or go against some civil liberty to any outsider but as Dodds explains, “courts have held the idea that unilateral presidential directives are essentially laws and are not constitutionally problematic (Dodds 2013, 84). Thus, while the courts can rule against unilateral Presidential actions, the trend has been moving toward acceptance as opposed to refusal (Dodds 2013, 84). The decision made by Bush did not face opposition from the Supreme Court, but in 2004, they would begin their battle with the White House over the War on Terror (Wheeler 2009, 677).
The main issue that caused a debacle within the public and the courts was the detention rules that the Bush administration put in place in Guantanamo Bay, where prisoners could be held without the ability to fight the detention easily through a legal system (Dodds 2013, 83). Another point that was brought up from the justices was that they felt as though “Guantanamo Bay, Cuba was within U.S. jurisdiction and hence subject to its laws” (Dodds 2013, 83). The previous quote then explains that President Bush and his administration were becoming slightly contrasted by the courts, in that the actions they had taken were outside of what they were legally allowed to do. George W. Bush had been in the White House a short period of time; this meant that he would shy away from battling the courts. Nevertheless, it is essential to note that he had a Vice-President who was one of the most powerful in recent history, he also had experience with the logistics inside the White House (Goldstein 2010, 115). It was the Vice-President who helped to develop many of the policies and directives that guided the War on Terror (Goldstein 2010, 115). While the Supreme Court ruled against the White House in 2004, this was three years after the mission began; by this point, things had changed. The time delay in the court ruling on matters is not so surprising, and is one of the main reasons that its ability to act as a check on the power of the President during times of crisis is minimal (Wheeler 2009, 682).
It was in 2006 that the court ruled and merely opposed what President Bush had done in regards to the military tribunals was unconstitutional (Dodds 2013, 83). Nonetheless, it had been in effect for five years up to that point, and while George W. Bush would issue subsequent executive orders to fall in line with the views of the court; they would continue ruling against the President and the White House even into 2008 (Dodds 2013, 83). It was a tennis match, with a lot of back and forth action, none of which was unforeseen. What was interesting though, was that the War on Terror continued through these rulings with only minor adjustments necessary.
The courts as a whole entity have an stimulating role to play, but this role is not all encompassing. An example of a role is the military tribunals mentioned before. The court rules they were unconstitutional; in order to keep them in place, Bush simply planned to “clarify his policy” (Dodds 2013, 83). Opposition began to arise, and it indicated that the court would be able to rule on various issues, but only specific ones. What then occurs is that a President who wants to continue with a specific initiative will do so by slightly adjusting elements. The court tends to avoid the big picture, as was the case when they ruled on the need for Guantanamo suspects to be offered a venue to appeal their detentions (Wheeler 2009, 687). The Supreme Court ruled that they need to “have access to federal courts” but they did not go further than that (Wheeler 2009, 688). This type of ruling does not specifically counter the way detainees must be given access, what type of access, as well as not truly allow or make the U.S. government able to keep prisoners in Guantanamo (Wheeler 2009, 688). Once again, the court does not rule in an overarching manner, but merely on specific cases; the Bush administration was then able to circumvent the rulings and continue on the way he had desired.
The reactions to these rulings and the subsequent resiliency of the White House to canteen on with their mission in light of these rulings are directly in line with how Vice-President Dick Cheney believed the executive should function (Goldstein 2010, 121). In a time of crisis, Cheney and quite presumably the rest of the executive at this time, felt as though the President’s powers as Commander in Chief gave them the ability not only to lead, but to guide the policy including the surveillance which they were criticized for (Goldstein 2010, 121). It is then assumable that had the executive been formatted a little differently, the shaping of the War on Terror would have had different consequences.
The President holds one of the most powerful offices in the whole world. This position is not one that is undertaken alone and in the case of George W. Bush, he had a close partner as well as an experienced man who helped shape the actions taken once the attacks of 9/11 had taken place. Accordingly, these two men along with their growing staff would be faced with a tragedy that shook the whole nation.
The attacks on that day are ones that will go down in infamy; my opinion is that George W. Bush did not take any time to react. Within days, he declared a War on Terror and one that would drag on for the length of his tenure in the White House. However, it was clear that his mission would face staunch opposition from the Supreme Court of the United States, but would prove to be a minor hurdle for President Bush and his desired plan of action. Much of these inabilities to restrain the powers of the President derive from the way of how the court functions. It was only in 2004 that their first ruling was made regarding the War on Terror, but the fact that it had already been three years since the mission began, as well as it being a narrow ruling meant that the effect was minimal, and it would remain the same for subsequent ones (Dodds 2013, 83). The court would continue to rule that certain parts of the mission were unconstitutional, and therefore, must be changed or ended. In some cases, the President made minor changes; for all intents and purposes, the mission stayed in tact. Consequently, it was both the lengthy process of court cases, along with the narrow views of the Supreme Court which contributed to their lack of ability to reel in the White House and its most elite members.
The actions of President Bush junior were in direct line with how Vice-President Cheney viewed the role of the highest position within politics. As mentioned prior, Alexander Hamilton had the role of the President as Commander in Chief, and most would agree with this logic. However, Dick Cheney viewed this role as much more than simply overseeing the armed forces, he, along with George W. Bush, saw it as being able to guide and shape the role of the U.S. in military matters. It is then possible to note that even in light of the lack of restriction in powers by the courts, the mission may not have gone as it did. The President had and continues to have a significant power of internal and external affairs; it was no different for George W. Bush. The conclusion that must then be made is that the court has relatively weak power to restrain the President, especially in times of war. Nonetheless, it is crucial to examine the team of people around the President as well as their motives within the White House. I believe that the War on Terror showcased parts of the presidency many believed to be untrue, unethical, and simply un-American. The War on Terror was a moment in American history that will never be forgotten. George W. Bush played a very significant role during this time, and completely changed dynamics with America and countries all over the world.
Boyle, Michael J. 2008. “The War on Terror in American Grand Strategy.” International Affairs 84 (2): 191-209.
Burke, John P. 2014. “The Institutional Presidency.” The Presidency and the Political System 10th Edition, edited by Michael Nelson, 349-373. Los Angeles: SAGE Publications Inc.
Dodds, Graham G. 2013. “Judicial Santion” in Take Up Your Pen: Unilateral Presidential Directives in American Politics, 54-85. Philadelphia: University of Pennsylvannia Press.
Goldstein, Joel K. 2010. “The Contemporary Presidency: Cheney, Vice Presidential Power, and the War on Terror.” Presidential Studies Quaterly 40 (1): 102-139.
Levy, Michael 2014. “United States Presidential Election of 2000.” Encyclopedia Britannica, March 14th. Accessed November 5th, 2015. http://www.britannica.com/event/United-States-presidential-election-of-2000.
Milkis, Sydney M. and Michael Nelson. 2015. “George W. Bush and Unilateral Presidential Power.” The American Presidency: Origins and Development, 1776-2014, 456-480. Los Angeles. CQPress.
The Washington Post. 2001. “President Bush Addresses the Nation” September 20th. Accessed November 6th, 2015. http://www.washingtonpost.com/wp-srv/nation/specials/attacked/transcripts/bushaddresses_092001.html
Wheeler, Darren A. 2009. “Checking Presidential Detention Power in the War on Terror: What Should We Expect from the Judiciary?” Presidential Studies Quaterly 39 (4): 677-700.
Yalof, David A. 2014 “The Presidency and the Judiciary.” The Presidency and the Political System 10th Edition. 448-472. Los Angeles: SAGE Publications Inc.