Archive for March, 2009
Executive Action Report 3/11/09 – 3/17/09
March 18, 2009Government Narrows Its Argument in Gtmo Habeas Cases
March 16, 2009Friday, the United States filed a significant document in habeas corpus proceedings before Judge Bates in the District Court for the District of Columbia. Coincidentally, this was the same day on which Chief Justice John Roberts appointed Judge Bates to be the chief judge of the FISA court. The submission revises the legal position of the United States regarding its justification for detaining persons at Guantanamo Bay. Prior submissions in the habeas litigation – as well as numerous assertions in other proceedings and in public – had always included reliance on the President’s “inherent powers” as commander in chief as one justification for the detentions. These assertions had typically been made in tandem with reliance upon the Authorization for the Use of Military Force enacted by Congress just one week after September 11, 2001, Pub. L. 107-40, 115 Stat. 224 (2001). The most recent submission by DOJ completely drops reliance on inherent presidential powers. Instead, the submission argues there is ample authority to detain in the combination of the AUMF itself, the president’s conceded central role in executing the country’s war powers, and international law. Although the declaration never mentions the Steel Seizure decision, it is easy to put the submission into the typology developed by Justice Jackson’s concurrence in that case: the submission rests the detention authority totally within the confines of Category 1 of Justice Jackson’s concurrence, portraying this as a situation in which “the President acts pursuant to an express or implied authorization of Congress,” where “his authority is at its maximum, for it includes al that he possesses in his own right plus all that Congress can delegate.”
For the habeas defendants, this may not be such good news… (more…)
Weekly Web Watch 3/08 – 3/15
March 15, 2009The Obama Administration made headlines with its decision to drop the term “enemy combatants” from its legal justification for detaining suspected terrorists. Harper’s Scott Horton thinks that the memo detailing the change places the Department of Justice on sounder legal footing, but believes its vagueness warrants skepticism. BLT quotes the president of the Center for Constitutional Rights, Michael Ratner, who characterized the position as “old wine in a new bottle.” Salon’s Glenn Greenwald agrees, asserting that it is a break with the Bush Administration in name only and part of a disturbing trend toward expansive executive power. As Greenwald himself notes, his assessment places him in line with conservative Rich Lowry, who penned a similar indictment for the National Review.
Christopher Schroeder has the details and likely impact of President Obama’s recent memo concerning the use of presidential signing statements. Days after issuing the memo, President Obama issued his first signing statement, signaling his willingness to “defend executive power when he sees fit.” The use of signing statements became a controversial practice under the Bush Administration when groups such as the American Bar Association charged that such sweeping refusals to enforce laws signed by the president were unconstitutional. The National Review has been critical of the ABA’s position.
Former Vice President Dick Cheney said that Obama’s policies on torture and similar issues have made Americans less safe. Think Progress counters with evidence that the torture policies of the Bush Administration threatened America’s national security. Think Progress also has the details of the newly released Red Cross investigative report on the alleged torture of detainees in American custody.
The New York Times’ Charlie Savage and Scott Shane probe the possibilities for legal action against Bush Administration lawyers such as John Yoo and David Addington. Scott Horton believes that a forthcoming DOJ report could aggravate Yoo’s legal troubles. Andy McCarthy says that legal action or a truth commission against Bush Administration officials will create the “risk-averse bureaucratic climate lamented by the 9/11 Commission.” Alternet’s Martin Garbus, on the other hand, sees criminal investigations as the only way to deter future wrongdoing and believes it is time to “bring the full force of America’s 230 years of law down on the offenders.” Importantly, Scotusblog notes that last Thursday the Obama Administration called on the D.C. Circuit Court to dismiss a lawsuit brought by four Britons charging that they had been tortured at Guantanamo Bay because aliens held there “do not have due process rights” and because foreign affairs is the “exclusive province of the political branches.”
Propublica has an insightful interview about government transparency with Dan Metcalfe, who headed DOJ’s Office of Information Policy under four presidents. Transparency reentered the news as the ACLU persuaded a judge to order an in camera review of all redacted documents associated with the CIA’s destruction of torture evidence. Echoing the ACLU’s efforts, Amrit Singh, writing for the Huffington Post, called on the Department of Justice to release secret photos of prisoner abuse in overseas facilities other than Abu Ghraib.
The American Constitution Society spotlights Pulitzer-prize winning journalist Seymour Hersh’s allegation that an executive branch entity known as the Joint Special Operations Command (JSOC) regularly traveled to foreign countries and assassinated adversaries, while reporting directly to Vice President Dick Cheney’s office. Michael Moynihan, writing in Reason, says that readers should keep in mind Hersh’s purported tendency to stretch the truth. The Weekly Standard calls the allegations “another Hersh fantasy.”
Senate Minority Leader Mitch McConnell (D-KY) pleads with President Obama in the Washington Post to keep Guantanamo Bay open. The Weekly Standard catalogues the most recent obstacles Obama faces in his efforts to close the prison. Salon’s Karen Greenberg has already moved on to making the case for revisiting Bush-era policies at the Bagram Air Base prison in Afghanistan.
Obama on Transparency and Scientific Integrity: Some Positive Signs with Some Mixed Signals
March 13, 2009One kind of issue about presidential control over executive government with proven implications for “science-bending” concerns presidential control over executive branch communications with Congress. Transparency, and all the contributions to “honest brokering” and effective democracy through the “marketplace of ideas” that go with it, is impaired if the President takes the position that communications with Congress or the public must be pre-cleared politically. One notorious example during the Bush administration was the suppression of projections concerning the cost of certain health-care measures. Some such controls are of long-standing, however. Thirty-two years ago, when the author was General Counsel of the US Nuclear Regulatory Commission, the Office of Management and Budget was “coordinating” (i.e., pre-clearing) communications and testimony to Congress about legislative proposals and budgetary matters. The Commission’s nominal independence (it was of course an element of the executive branch, but its statutes provided explicitly for direct communication) softened these controls; but within the Commission itself, its Bureau “executives” sometimes exercised rather rigorous control over what they would permit their staff members to tell the Commission about perceived nuclear power risks – a rather unfortunate situation. (more…)
Executive Action Report: 3/4/09 – 3/10/09
March 11, 2009Obama’s Policy on Signing Statements
March 9, 2009Today, President Obama issued a Memorandum to Heads of Executive Departments and Agencies on the use of signing statements in his administration. So far as we can tell, no prior administration has ever issued a formal policy regarding signing statements. Plainly, this one has been prompted by the extravagant use of these statements by President Bush: during his first six and a half years, President Bush used signing statements to object to at least 1069 provisions of laws Congress had just enacted, compared to 105 objections by President Clinton. (These figures are from a paper by Neil Kinkopf and Peter Shane. I cannot find a compilation of Bush signing statements for Bush’s last year and a half. ) The point of President Obama’s memorandum is to indicate a break from the past. (more…)
Weekly Web Watch (3/01-3/08)
March 8, 2009Propublica has a nifty chart comparing the Bush and Obama Administrations’ positions on various legal matters implicating executive power.
The Supreme Court vacated a Fourth Circuit decision establishing the executive branch’s authority to subject legal residents of the U.S. to indefinite military detention, but failed to clarify the scope of the executive branch’s powers by dismissing the appeal on mootness grounds. The Court’s order also approved the transfer of the man at the center of the suit, Ali Saleh Kahlah al-Marri, to civilian custody, paving the way for his trial on criminal charges. Left-leaning organizations and commentators had urged the Court to go-ahead with a substantive review. Writing in the wake of the Court’s order, Salon’s Gleen Greenwald applauded the Obama administration’s indictment of al-Marri, but expressed grave disappointment that the decision left open the possibility that the executive branch would classify U.S. nationals as enemy combatants and imprison them in the future.
Propublica has the details on the Obama Administration’s release of nine secret memos from the Bush Administration’s Office of Legal Counsel (OLC). Jack Balkin says that they “justify a theory of Presidential dictatorship.” Glenn Greenwald, the Atlantic’s Andrew Sullivan, and Harper’s Scott Horton reach similar conclusions in equally vivid language. Concurring Opinions’ Helen Norton, meanwhile, spotlights the memos’ “drive-by attack on the First Amendment.” John Yoo takes to the pages of the Wall Street Journal to argue that preventing another terrorist attack justified the legal positions he and others at OLC espoused. Executive Watch’s own Christopher Schroeder and Neil Kinkopf point out, however, that a memo from the closing days of the Bush Administration repudiated the OLC’s earlier claims of expansive executive power on a host of controversial issues.
The newly released memos supplied fuel for House and Senate Democrats to push ahead on a proposed Truth Commission to investigate abuses of executive power under the Bush Administration. The Blog of Legal Times (BLT) notes that Republicans, too, are using the memos to defend their position, asserting that the Obama Administration does not need Congressional assistance to release damaging evidence of previous executive improprieties. Slate’s Dahlia Lithwick casts doubt on this view of the Obama Administration and makes the case that the Bush Administration’s actions should not be shielded from investigation and prosecution. Senator Sheldon Whitehouse (D-RI) joined House Speaker Nancy Pelosi (D-CA-8) in supporting a Truth Commission, while also opposing blanket immunity from prosecution. Senator John Ensign stresses his opposition to the whole idea in Roll Call, calling a Truth Commission “dangerous” because it would render the Intelligence community risk-adverse.
BLT reports that the House Judiciary Committee finally struck a deal with Karl Rove and Harriet Miers to testify about the firing of eight U.S. attorneys. ThinkProgress quotes House Judiciary Chairman John Conyers (D-MI-14), who called the deal “a victory for the separation of powers and congressional oversight” as well as a “vindication of the search for truth.”
The Hill believes the CIA must be held accountable after it acknowledged destroying 92 tapes recording enhanced interrogation tactics of detainees in U.S. custody.
BLT reports on the Department of Justice’s surprising move to defend John Yoo in a federal civil suit brought by Jose Padilla.
The Senate Judiciary Committee confirmed three of Obama’s nominees for the Department of Justice. The National Review’s Ed Whelan and the Wall Street Journal had accused Obama’s Solicitor General pick, Elena Kagan, of evading difficult questions.
The U.S. Court of Appeals for the D.C. Circuit ruled that the government cannot categorically conceal sensitive information about Guantanamo detainees from their legal defense counsel, leaving that determination to the discretion of district court judges. The National Review’s Andy McCarthy calls it a “disastrous ruling.”
The Weekly Standard criticizes President Obama for concealing a report about the recidivism of Guantanamo detainees.
President Obama’s plans to rein in wasteful government contracts (such as this) earned the support of Matthew Yglesias, who writes critically about the lobbying efforts of the military-industrial complex. BLT notes that the move has yet to cause anxiety among private government contracts lawyers.
The Foreign Intelligence Surveillance Court is moving out of the Department of Justice and Helen Norton speculates whether spatial relocation really makes a difference.
Regulatory Review Reinvented?
March 5, 2009Arguably, the most important legal document of the last 30 years that hardly anyone in America knows about was Executive Order No. 12,291, the Reagan executive order that created the modern system of White House oversight of federal regulatory policy making. The Order required federal agencies other than the so-called independent agencies to submit potential regulatory initiatives to OMB for cost-benefit clearance before they could go forward as actual proposed and, eventually, final rules.
That system, although significantly (and beneficially) amended by President Clinton through Executive Order 12866, has remained largely intact under four presidents so far, with a consequent shift in policy making authority out of cabinet departments and other specialized agencies and into the more intensely politicized White House.
On January 30, 2009, President Obama took two remarkable — and hardly noticed — steps with regard to this process. First, by his own executive order, he revoked some Bush 43 amendments to the Clinton order, which had arguably tightened White House control over regulatory policy, Second, and more important, he assigned the task to OMB, within the next 100 days, to develop recommendations for a potentially thoroughgoing redesign of the entire process. OMB has now solicited public comment on that rewrite, and some of the input is already publicly available.
My own advice to OMB is that OIRA get out of the job of routinely reviewing individual regulations. Instead, it should focus on a role ideally suited to OMB’s place in the bureaucratic structure – coordination. OIRA could lead a series of government-wide efforts to examine on a systematic basis an entire range of federal regulations, across agency boundaries, that are relevant to some particular set of social goals in order to determine whether existing regulations fit together as a whole, whether their distributional impacts are fair, and whether portions need updating (or, indeed, repeal). No single-mission agency can perform this job. The coordination function, urged also in an excellent article by attorney Nicholas Bagley and NYU Dean Ricky Revesz, was mentioned in the original Reagan order on federal rulemaking, but never played seriously by OMB. A good starting model might be the Regulatory Analysis Review Group, which President Carter created in his Council of Economic Advisers.
A number of the comments OMB has received regarding the executive order process tout the importance of cost-benefit analysis. The real question, however, is not whether cost-benefit analysis is useful, but whether OMB should be micro-managing the analytic process that occurs at the agency level. The argument that agencies will regulate excessively or inefficiently left to their own devices – that is, in a more pluralistic policy making environment — rests on a series of dubious and unproven assumptions. It has variously been theorized that agencies left on their own will overregulate in order to expand their resources and aggrandize their authority. They will respond too precipitously to perceived health and safety risks. They will fall sway to ideologically driven bureaucrats. Or they may be “captured” by pro-regulatory forces. But there is no proof that any of these things is systematically the case.
I applaud President Obama’s willingness to launch a thorough reconsideration of OMB’s role in regulatory review, and was delighted to see that the revision is being undertaken with the benefit of both public comment and interagency consultation. This is in stark contrast to the tightly closed process that led to the promulgation of Executive Order No. 12,291 in 1981.
Rethinking the executive order on regulatory review could not occur at a more opportune time. The Bush Administration performance on economic, health and safety regulation was disastrous. President Obama has the opportunity to redesign the role of the White House in regulatory policy making so that OMB becomes a genuine partner to agencies seeking to advance the public interest through wise regulatory initiative.
OLC Releases Two Profoundly Important Legal Memos
March 5, 2009In the days after September 11, the Justice Department’s Office of Legal Counsel authored a spate of legal opinions constructing a theory of the powers of the presidency that essentially amounted to dictatorial powers. We have known this for some time, of course. Enough of the legal memoranda have been disclosed or leaked to reveal the contours of that theory, and a number of its details, besides. It is also plain, though, that there are literally hundreds of pages — probably thousands of pages — of legal analysis from that post-September 11 period that remain undisclosed. The ACLU and Propublica are maintaining a running list of still-undisclosed memos, which shrinks a little when additional memos come to light and grows a little when evidence emerges — often from newly disclosed memos — of the existence of additional memos that were not previously suspected to exist. (This business of keeping track of undisclosed memos can be tricky. Both the ACLU’s list and Propublica’s appear reflect the March 2 releases, even though Propublica’s page still bears a January 28, 2009 date at the top. It would be nice if they changed that to reflect the latest updates.)
On March 2, the Justice Department did release nine memos that we had not seen before. These have widely been reported as memos from the 2001-2003 period, and seven of them are. However, as we reported on Tuesday and Jack Balkin reported on Wednesday, the most remarkable of the nine memos are two recent ones, from October 6, 2008 and January 15, 2009. The other seven give us more knowledge into the specifics of the Bush administration’s theory of dictatorial presidential power — one, for instance, concludes that the Fourth Amendment does not apply at all to military operations hunting al Qaeda within the United States. These two, however, repudiate some of the basic building blocks of the legal reasoning that OLC was using in the post-September 11 period to construct these and other legal memos. Apparently, the outgoing administration had been rethinking the dictatorial theory and decided that it was important to state that a number of the legal arguments upon which it was based were wrong. (more…)
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Signing Statements Redux
March 17, 2009Last week, President Obama issued his first signing statement. Actually, it wasn’t his first signing statement, but it was the first statement in which he expressed his view that certain provisions of the bill he was signing were unconstitutional. The Bush Administration was subject to a good deal of criticism for its use of signing statements. So, perhaps it is not surprising that some have taken the occasion as an opportunity to settle scores. Here is what Eric Posner had to say on the Volokh Conspiracy:
Let’s take the claims in order. First, the claim that “signing statements have almost zero practical effect” is highly dubious. (more…)
Tags:obama, presidential power, Signing Statements
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