Archive for February, 2009

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Supreme Court May NOT Decide Indefinite Detention

February 27, 2009

The government’s brief in the Al-Marri case is due March 23.  The case raises the question whether the President, exercising his authority as commander-in-chief, can detain a suspected Al-Qaeda collaborator indefinitely and without charging him for any crime.  In the earlier Hamdi decision, the Supreme Court upheld holding an individual seized on the battlefield in Afghanistan for the duration of that conflict — following the accepted treatment of prisoners of war under the international laws of war, but it also said that as the conditions began to differ markedly from conflicts  that traditionally have had recognized endings this understanding may “unravel.”  President Bush asserted that the war on terror will last indefinitely, beyond his lifetime.  A number of President Obama’s appointees have stated in Senate testimony that the United States is at war with terrorists.   So the question is, can the government substitute “the war on terror” for the “war in Afghanistan,”  such that the President can detain someone for the duration of that conflict?   The al-Marri case tests that proposition.  Al-Marri was picked up in Peoria, Illinois, never having been on the battlefield in Afghanistan or Iraq, and was accused of participating in an al-Qaeda plot. 

In a move that was not unexpected, it is now being reported in the Washington Post, the New Yorker and the New York  Times that al-Marri has been indicted — probably under the material support statute — and will stand trial in federal criminal court.  This means he is no longer being held indefinitely.  This shift will enable the government to suggest to the Supreme Court that the case is moot, meaning there is no longer a live case or controversy, and the Court should drop the case before deciding the merits of the question of presidential authority.  Watch for that brief to be filed next month.  Civil liberties groups, who think they have a strong argument that the power of indefinite detention is not one that the president possesses outside of the context of a traditional armed conflict, will most likely oppose that suggestion, contending instead that the legal dispute over the president’s power is capable of arising again.   If the case can be mooted by the government switching the defendant into the criminal justice system on the eve of argument, that maneuver can be repeated in the future, and the legal question may evade review indefinitely.  If the Court is sympathetic to that argument, there is precedent for it to hear the case despite the switch in al-Marri’s status.

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Why I’m glad to be watching the executive

February 26, 2009

I want to congratulate Chris Schroeder for creating this timely and important blog. Anyone who has been to Washington, DC, in the last few weeks realize that President Obama has been greeted as a liberator. (For a time, at least, his picture replaced the National Zoo’s pandas on the area’s metro cards.) The public in DC and, according to polls, throughout the nation is optimistic about the President’s potential to solve the many great problems that confront us. His to-do list now even includes finding a cure for cancer. Against this backdrop, it may be quite tempting for an official in the new Administration to take a “by any means necessary” approach to resolving the crises of the day. (I hasten to add that I am not aware of any indication that this actually has happened yet.) For this reason, I think it crucial that there be a community of observers who care about the rule of law and who understand that this commitment means that the President must remain faithful to the law while he responds to the crises of our age. I am thus pleased to join the patrol on this neighborhood watch for separation of powers.

As I watch the executive, I am struck by the reaction of Congress and the public to the many scandals of the Bush Administration. After the abuses of the Nixon Administration, Congress responded with a range of broad framework statutes designed to regulate the exercise of power and to prevent future abuses. The statutes include the War Powers Act, the Foreign Intelligence Surveillance Act, The Federal Election Campaign Act, the Ethics in Government Act, and the Impoundment Control Act to name a few. Where are the framework statutes that respond to what so many perceive as the systemic abuses of power that characterized the Bush Administration? To be sure, there has been some legislation proposed to respond to discrete types of abuse (the OLC Reporting Act, is a salutary example) and it is possible that Congress will craft such legislation over the coming years (several of the examples I cited in connection with the Nixon Administration took some years before they were enacted.) But the sense I get is that there is little clamoring for such laws. Indeed, my sense is that many people regard Barack Obama as the solution. There may be something to this (full disclosure: I worked on the Obama campaign and transition team and personally support his Administration). I say this not because of anything about President Obama in particular. Rather, I mean this as a comment on the response to the abuses of the Nixon Administration. It is at least questionable whether the framework statutes have served their purposes. The War Powers Act has long been regarded as a hollow shell. Although FISA clearly applies to programs such as the National Security Agency’s controversial wiretapping program – the Terrorist Surveillance Program – it did not prevent the Administration from operating that program in secret for five years. The Campaign financing law has been in a constant cycle of abuse and reform since its enactment. The Ethics in Government Act gave us the Independent Counsel provisions that became so unpopular (primarily after the impeachment of President Clinton) that Congress allowed them to lapse. If the Nixon Administration taught us that presidential power is subject to abuse, the ensuing years have taught us that statutes cannot provide a fully adequate remedy. It may be that the lesson of the Bush presidency is that the rule of law is best safeguarded by the personal commitment of the President himself to maintaining the rule of law. If so, this Executive Watch project is all the more vital.

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Johnsen’s Confirmation Hearing as OLC Head — The Right Choice

February 25, 2009

 Dawn Johnsen will be questioned today by the Senate Judiciary Committee with respect to her nomination as head of the Office of Legal Counsel, along with David Kris, who has been nominated to head the National Security Division.  The Office of Legal Counsel is the key Justice Department office advising the President on issues of executive authority.  As a friend and colleague of Professor Johnsen for years — including a colleague when we both worked at OLC in the 1990s — I am completely confident that the Constitution will be in excellent hands with her as head of the Office, and that President Obama has chosen well.  That’s my opinion, as well as my disclosure of bias for what follows.  (more…)

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Executive Action Report: The First Five Weeks of the Obama Administration

February 25, 2009

Welcome to a new feature on Executive Watch, starting next week we will be providing a summary of major exercises of executive authority for that week, as well news relating to executive power.  Today, in order to make up lost ground, we present a summary of the major exercises of executive authority and executive power news for the first five weeks of the Obama Administration.

Week 1: 1/20/2009 – 1/27/2009

President Obama’s first week in office was accompanied by a flurry of new executive orders and memos, many of which are directed at reversing or reviewing previous Bush administration positions.

(more…)

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Midnight Regulations: Congress Lends a Hand

February 24, 2009

Every time the presidency has changed parties in recent years, the outgoing president has issued regulations in the final months of his presidency implementing policies at odds with the policies of the incoming president.  The critics of these regulations invariably deride them as “midnight regulations”  that have been rushed through the regulatory process.  Propublica is monitoring the Bush midnight regulations, here. Then the incoming president sets out to stop or undo many of them by issuing a regulatory “stop order” to the agencies and departments.  Stopping a regulation from taking effect is much less resource intensive than undoing one, so every recent president stop order, including President Obama’s, has contained a request that no agency or department send any regulations for publication in the Federal Register until they have been reviewed by a political appointee of the new president, and that they withdraw any regulations that the Office of the Federal Register has received but not published.  For regulations that have been published, the Obama memorandum – which was issued by his chief of staff, Rahm Emmanuel, on January 20 – asks that agencies review those that have not yet gone into effect and consider extending their effective date for sixty days if they raise significant issues of law or policy, to provide time to reconsider them.  But what about regulations that have gone into effect?  Under the Administrative Procedure Act as well as the enabling legislation of many agencies, revising an existing rule requires the same lengthy process that issuing it required in the first place, which can mean months and even years – unless the President gets a little help from his friends in Congress. (more…)

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Obama Says: No Habeas in Bagram

February 23, 2009

To the growing list of legal proceedings or issues in which the young Obama administration has taken the same stance as the much-maligned Bush administration you can add this one:  non-citizens being detained at Bagram Airfield, forty miles north of Kabul in Afghanistan cannot file habeas petitions in U.S. federal courts to challenge the validity of their detention. 

In a pending habeas proceeding in the District of Columbia District Court, Judge John Bates asked the Justice Department shortly after the Inaugural whether it wished to reconsider its position that the writ of habeas corpus did not extend to detainees at Bagram.  But as Lyle Denniston has reported on Scotusblog, on Friday the government said, “no thanks.”  Charlie Savage writes in the NYT that this decision was “generally expected among legal specialists,” but nonetheless is a “blow to human rights lawyers,”  one that Joan Walsh at Salon calls “appalling.”  With the U.S. position unchanged and the matter briefed and argued, we will await Judge Bates’ decision, which will surely be appealed regardless of how it turns out.

In the meantime, what to make of this latest in a series of cases, more fully documented in an earlier Savage article, in which the Obama administration has declined to put much daylight between its legal position and that of its predecessor?  This one is a little complicated.  The government’s position that the federal courts lack the jurisdiction to hear habeas cases brought by Bagram detainees is hardly without merit.  In fact, if you were making a judgment solely on the weight of existing legal authorities, you certainly could conclude that position was more sound than the contrary one.  At the same time, the most recent pronouncement on the reach of the Great Writ outside of the territorial boundaries of the United States has complicated the legal analysis considerably.  Because of the Supreme Court’s decision last term in Boumediene v. Bush, the legal question raised by the Bagram case is not free from doubt. (more…)

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Weekend Web Watch (2/15-2/22)

February 22, 2009

What others are saying about executive power

The New York Times reports on the Obama Administration’s position that detainees at the Bagram Air Force base in Afghanistan cannot challenge their detentions. Salon’s Joan Walsh captures the disappointment on the Left. 

Both the New Republic and the Washington Post have reported that Yale Law professor Harold Koh will be Hillary Clinton’s go-to counsel at the State Department. Koh is an outspoken international human rights advocate who, in 2002, declared that a unilateral preemptive war with Iraq would violate international law.

Charlie Savage recaps the ways the Obama Administration has hedged on its pledges to scale back expansive executive power. Eli Lake makes a similar point in the New Republic.

The National Review applauds the D.C. Circuit Court of Appeals’ reversal of an order to release 17 Uighur detainees in the United States, but expresses concern that the Supreme Court may see things differently.

Salon’s Jon Conason wants a presidential commission to investigate authorizations of torture during the Bush Administration, but also argues that there should be no criminal investigations and that cooperative officials should be guaranteed a complete pardon.  Conason’s Salon colleague, Glenn Greenwald, responds that such preemptive pardons would constitute an “unambiguous and blatant violation of our obligations under the Convention [Against Torture]” and demands greater accountability.

The Weekly Standard is troubled by Thomas Joscelyn’s ties to Al-Qaeda.  Joscelyn is expected to be the first Guantanamo detainee released or transferred by the Obama Administration.

Noah Feldman offers up a defense of executive secrecy in the New York Times magazine. The New Republic calls it too clever by half.

Darrell Issa, the ranking Republican member on the House Oversight Committee, has called on the White House to establish a framework for archiving White House e-mails.  Think Progress calls the move hypocritical in light of positions Issa took during the Bush Administration.

Politico highlights important gaps in White House record-keeping, casting doubt on Obama’s commitment to transparency.

The National Review quotes Montesquieu: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.”  The post addresses Congress’s eagerness in granting Obama sweeping spending discretion in the proposed housing bill.  Matthew Yglesias spots the irony of the publication not raising similar concerns about foreign policy.

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Testimonial Immunity for White House Aides?

February 20, 2009

The House Judiciary Committee has been trying to get to the bottom of whether the White House improperly influenced the firing of six US Attorneys during the Bush Administration.  When former White House Counsel Harriet Miers and then-chief of staff Josh Bolten were subpoenaed by the Committee, they and the White House claimed that close White House advisers were absolutely immune from having to testify.  In a well-reasoned opinion, Judge John Bates rejected the claim of absolute immunity.  Bates had it right:  whatever the justification for an assertion of absolute immunity for the President himself, the claim for his key aides is quite thin — and, something he did not stress in his opinion, it gets thinner once they become former aides or aides of a former president, as Miers was at the time of the decision and as Bolten has since become.  At the time of the original decision, Marty Lederman blogged on the topic, and I will not repeat his judicious remarks here.  

Now, the case is in the news again, because the Court of Appeals for the District of Columbia, which is hearing the appeal, has declined an administration request for a two week delay in the government filing its brief.  That brief is now due February 25. 

The Obama administration would be wise to leave the battlefield on this one.  Bates’ opinion only says that when subpoenaed Miers and Bolten must show up at the Committee hearing.  At that time, they will still be able to assert executive privilege over answers to specific questions that are appropriately covered by that privilege.  That is quite enough protection to advance any President’s interests in ensuring confidential discussions.  That is going to take some nimble negotiations with the attorneys for Miers and Bolten as well as with the House of Representatives, all of whom will have to be on board.  But stonewalling the entire hearing through the use of an absolute immunity claim that was rejected in the court below is hardly striking a blow for greater transparency.  If the immunity claim had strong support in precedent, that would be one thing, but the claim with respect to former aides is quite weak.

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Can the United States Detain Indefinitely? The Case of the Uighurs

February 19, 2009

On February 18, 2009, the federal Court of Appeals for the District of Columbia  reversed a decision of the district court ordering that seventeen ethnic Uighurs be released from Guantanamo into this country.  This despite the fact that the government has ceased considering them to be enemy combatants, therefore acknowledging that they cannot be held on that basis.

The problem for the Uighurs is that while the United States wants to release them to some other country, it does not want to release them into the United States. They cannot be sent back to their native China, however, because the Chinese government might conclude they are part of an insurgency against its authority, and subject them to arrest, torture or execution.  So far no third country has been willing to take them. On these facts, the district court concluded that there are constitutional limits on the ability of the executive branch indefinitely to detain the Uighurs, and so it ordered their release.

In a 2-1 decision, the court of appeals saw a critical difference between a right to be released and a right to be released into the United States.  The Supreme Court’s earlier decision in Boumediene v. Bush, which concluded that the writ of habeas corpus was available to Guantanamo detainees, did not hold that Guantanamo was part of the United States.  Therefore, the Uighurs remain aliens who have not entered the country.  Thus they seem to be covered by an unbroken string of Supreme Court decisions consistently holding that “the decision whether to allow an alien to enter the country was for the political departments, not the Judiciary.”  Accordingly, a court — and even a court sitting in habeas — lacks the authority to order their release into the United States. 

This is an exceedingly odd result.  (more…)

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Confirmation Hearings Set for Two Key Justice Department Officials

February 18, 2009

On Tuesday, February 25 at 2 p.m., the Senate Judiciary Committee is schedule to convene confirmation hearings for Dawn Johnsen slated as head of the Office of Legal Counsel and for David Kris to be head of the National Security Division. OLC is the epicenter for legal interpretations regarding surveillance, interrogation and detention, while NSD is operations central for law enforcement efforts to defeat terrorism within the United States. Both the legal interpretations and the operational policies of the Bush Administration came under enormous criticism, and a central theme of the hearings is certain to be trying to pin down each nominee on how much the Obama administration will differ from the approaches taken under President Bush. Copies of Professor Johnsen’s and Mr. Kris’ responses to the Committees questionnaire have been posted on the Committee website, here and here along with letters the Committee has received in support of each nominee.

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