Last Thursday, the Obama Administration ended the internal dispute about the release of additional memos regarding enhanced interrogation techniques by making public lightly redacted versions of four Office of Legal Counsel memoranda, one issued in 2002, the other three in May of 2005. Here is a highly selective summary of some of their more salient features. (more…)
People are intensely interested in figuring out how President Obama’s view of his presidential authority differs from President George W Bush’s, and rightly so. Some of the legal underpinnings for many of the Bush administration’s most controversial policies – the initial creation of military commissions, the resistance to providing judicial review for detainees held at Guantanamo, the use of aggressive interrogation techniques, the NSA’s warrantless surveillance program – relied on a theory of presidential authority that many thought arrogated too much unilateral power to the presidency. And of course candidate Obama campaigned against these programs and the legal theory of the presidency that supported them. A much-noted Q&A with Charlie Savage in the Boston Globe back in December, 2007 summarizes candidate Obama’s views.
Two months into his term, President Obama has taken steps to revise or reverse all of these policies. He has announced the cessation of military commission trials. He has announced the closing of Guantanamo, after a planning and evaluation process to determine which cases can be transferred to the federal courts or to military courts martial. He has announced that the Army Field Manual defines the permissible interrogation techniques for American personnel. And we believe, but do not know, that warrantless surveillance of Americans within the United States is no longer occurring, subsequent to Congress amending the FISA statute to authorize a program that meets national security requirements while subjecting the procedures for that program to judicial review by the FISA court. Led by Vice President Cheney, conservative critics claim that these policy changes are making the country weaker and less secure.
Despite these noticeable and notable changes, somewhat remarkable narrative is gathering momentum: On issues of presidential power, Obama is not much different from Bush. Making the narrative even more interesting, it is coming from the left and the right. (more…)
Friday, 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…)
Today, 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…)
In 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…)
The Bush administration asserted notoriously aggressive and broad claims of presidential authority to violate acts of Congress when the President believed that doing so advanced the national security interests of the United States – and the Office of Legal Counsel in the Department of Justice was repeatedly the source of legal memoranda that purported to justify those claims. During the transition from the Bush to the Obama administrations, civil liberties groups and others called for the rapid repudiation of these memoranda, a good number of which remain classified and undisclosed. When Dawn Johnsen, slated to be the next head of OLC, testified before the Senate Judiciary Committee last week, she was questioned by several Democratic Senators who were interested in how quickly she was going to re-examine and repudiate these memoranda. Senator Whitehouse, for example, urged that Professor Johnsen quickly reconsider declassifying a number of these OLC opinions – which he has seen on a classified basis – because, he said, the reason they seemed to be classified was not due to a fear of revealing national security information, but instead out of a desire to “protect them from scrutiny because they were so badly done.” (more…)
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.
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…)
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…)
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…)