The Yale Law Journal


Can Process Cure Substance? A Response to Neal Katyals Internal Separation of Powers

03 Nov 2006
M. Elizabeth Magill

Let’s be clear about what motivates Professor Katyal’s call to remake the executive branch: his objection to the Bush Administration’s decisions in the aftermath of September 11. Professor Katyal has done much more than write law review articles disagreeing with the creation of a new and separate legal regime for enemy combatants and all that such a regime entails—military commissions, a narrow reading of prohibitions on torture, and a waiver of the obligations of the Geneva Conventions. He spent several years challenging the legality of the Administration’s military commissions and won a spectacular victory before the Supreme Court last summer.

Why, according to Professor Katyal, did the Bush Administration reach what he views to be objectionable conclusions? A zealous President and his zealous aides? A scared public? A failed politics? No. For Professor Katyal, these results were the product of a failed executive branch process. If the right people had weighed in with the right arguments at the right times, these decisions would have been different. And so, inspired by his view of what went wrong, Professor Katyal proposes to make it right by (further) dividing power within the executive branch. His executive branch would have more bureaucratic overlap, a beefed-up civil service, an internal adjudicator to resolve disputes among the bureaucrats (subject to presidential veto), and more reporting requirements to trigger monitoring by those outside the executive branch. This is a lawyer’s diagnosis of what went wrong, and a lawyer’s cure for it.

We already have an internally divided executive—at least as compared with other political systems. Parliamentary systems produce unified governments that place legislative and executive power in the same hands and such systems experience relatively little division within the government. By contrast, our system slices political power thinly. Congress and the President share in the exercise of legislative power; political power is thus distributed among different actors, each selected and tenured according to different rules and each housed in a different institution. A system that so fragments the exercise of legislative power would, one would predict, result in a complex and multi-layered executive. And it has. Our executive is characterized by bureaucratic overlap, independent agencies, and perennial complaints by Presidents about their inability to control the bureaucracy.

Is the foreign affairs arena an exception? In this domain, Presidents do claim special powers and key actors are closely identified with the President. But even in foreign affairs, executive power is distributed among the State and Defense Departments—and their many subunits—as well as the Department of Justice and the White House. These units do not sit in the same place and as a consequence they regularly disagree with one another.

The post-September 11 legal decisions that provoked Professor Katyal’s essay actually belie the notion of a lockstep executive branch. True, some journalists’ accounts indicate that some of the critical legal decisions were made through an unusually closed process that excluded possible dissenters. Jane Mayer reported in The New Yorker that the President issued the November 2001 executive order establishing military commissions without consulting numerous relevant participants, including Secretary of State Colin Powell and National Security Advisor Condoleezza Rice. Mayer also reported that the earliest memos issued by the Office of Legal Counsel were not vetted through the usual channels.

If the executive branch marched in lockstep, that would have been the end of the matter. But we also know that the policies that emerged from these closed processes were not swallowed whole by all of the other actors involved in their vetting and implementation. Journalists have reported on one act of disagreement and dissent after another from within the executive branch. Jane Mayer tells of the campaign by General Counsel to the Navy Alberto Mora to prevent the Department of Defense from relying on interrogation techniques that he viewed as torture. From late 2002 until his retirement in January 2006, Mora used his position as the Navy’s senior civilian lawyer to repeatedly confront senior Defense Department officials about problematic interrogation techniques. These officials, according to Mayer, frustrated Mora’s efforts, but the picture that emerges is hardly one of uniformity of views. The most recent evidence of internal dissent was revealed just this month when The New York Times’s Tim Golden reported that two senior national security officials—one at Defense and one at State—in June 2005 urged a re-thinking of the Administration’s entire approach to detaining, interrogating, and prosecuting alleged terrorists.

These press reports describe more than dissent and disagreement. They describe substantive policy revision. Jack Goldsmith, who was made head of the Office of Legal Counsel in 2003, undertook a series of steps that Newsweek dubbed a “Palace Revolt.” The measures included Goldsmith’s announcement that Deputy Assistant Attorney General John Yoo’s March 2003 memo on the military interrogation of unlawful enemy combatants held outside of the United States was under review and could not be relied upon by the Department of Defense; his advice to the Deputy Attorney General not to re-approve the electronic eavesdropping program; and, in 2004, his withdrawal of the so-called “torture” memo signed by Assistant Attorney General Jay S. Bybee in 2002.

Professor Katyal’s picture of truncated executive branch decision-making is also not entirely accurate. Not all the important decisions were the result of a closed process. The decision in February 2002 that the Third Geneva Convention did not apply to Taliban and Al Qaeda detainees was among the most controversial of the whole period. It was also the subject of thorough debate within the administration. Jane Mayer reports that when the Office of Legal Counsel circulated a draft memo to Defense on this matter, State Department Legal Adviser William Taft IV responded with a forty-page memo criticizing the draft OLC opinion. In his memo to John Yoo, Taft wrote that “the most important factual assumptions on which your draft is based and its legal analysis [are] seriously flawed.” Thereafter, Taft and Yoo engaged in several rounds of correspondence disputing the matter. The Secretary of State himself weighed in with a letter to the Counsel to the President. In the letter, the Secretary objected to a draft OLC memo on the applicability of the Third Geneva Convention, arguing that the memo did not accurately present the options available to the President and did not properly identify the pros and cons of each option. After the Department of Justice formally approved the OLC’s opinion over Taft’s objections, the Attorney General brought Secretary of State Powell’s request to reconsider this advice directly to the President.

Professor Katyal may be right that the post-September 11 legal regime is disturbing, but he has misdiagnosed its cause. One cannot reason back from the fact that these policies exist to the conclusion that their opponents were unable to express their disagreement. Those who disagreed did in fact express their disagreement in all sorts of different ways, before, during, and after key decisions were made. They just lost.

The legislative debate over the Military Commissions Act of 2006 illustrates this point. As it considered the Act, Congress heard as many views as exist on the matter. And what did it finally pass? Although there are a few departures, the law substantially follows the President’s pre-Hamdan conception of military commissions.The President’s allies in Congress defeated numerous amendments to the bill, including an amendment that would have given detainees the right to habeas corpus challenges. As Joanne Mariner put it, Congress gave the Administration “much of what [it] sought.” Opponents of the law weren’t silenced. They were rolled.

Viewing the Bush Administration’s post-September 11 legal decisions as the result of a failed process may be tempting, but it is mistaken. It may be tempting because it suggests that decisions with which Professor Katyal profoundly disagrees would not have been made if the process had been different. If only the President (or his delegates) had really heard the argument of the other side, so goes this line of reasoning, he would have reached another conclusion. But this view is mistaken. The record reveals that the Administration’s decision-makers were aware of the opposing arguments but adopted the course that they did despite those objections. Proponents and opponents of these executive branch decisions did not fail to understand one another—rather, they profoundly disagreed with one another about the right course of action. Instead of trying to design a process that would air all possible views, we should focus our energy and attention on examining and analyzing that profound disagreement.

Professor Elizabeth Magill is the Joseph Weintraub-Bank of America Distinguished Professor of Law at the University of Virginia School of Law. Her scholarship focuses on administrative law and constitutional law, particularly separation of powers theory and doctrine.

Preferred Citation: M. Elizabeth Magill, Can Process Cure Substance? A Response to Neal Katyal’s “Internal Separation of Powers,116 Yale L.J. Pocket Part 125 (2006),

[Editor's Note: Can Process Cure Substance? A Response to Neal Katyal’s “Internal Separation of Powers” is a Response to Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314 (2006).]