Archive for the ‘Commander-in-Chief power’ Category

Symbols and Substance in the New Administration

March 23, 2009

This post was written by Curtis A. Bradley & Eric A. Posner

Now that the critics of the Bush administration’s theories of executive power hold office in the Obama administration, one might have expected a U-turn in the executive’s position on the law.  But rather than repudiating Bush’s theories of executive power, the Obama administration has embraced them in substance.  At the same time, it has used symbolic gestures and changes in labeling to mask the continuity.

President Obama announced that he would close Guantanamo but not that he would close other detention centers around the world, such as those in Iraq and Afghanistan.  In doing so, he followed a political consensus, shared by Bush and McCain, that Guantanamo had become a public relations problem.  Shortly after making the announcement about Guantanamo, the Obama administration endorsed the Bush administration’s argument that U.S. courts cannot review a similar detention facility at the Bagram Air Base in Afghanistan that is governed by less formalized processes and currently houses substantially more prisoners.

Meanwhile, the Obama administration has also escalated the military campaign in Afghanistan and Pakistan, including the use of Predator drone attacks, a course of action that will mean that more Taliban and Al Qaeda members will be killed rather than detained.  This is one way to solve the problem of detention, but it hardly signifies a radical change of principle.

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Signing Statements Redux

March 17, 2009

Last 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:

The … signing statement controversy, stirred up by then Boston Globe reporter Charlie Savage who was duly awarded a Pulitzer Prize for his efforts, always rested on misunderstanding and confusion. Signing statements have almost zero practical effect. Courts don’t care about them. If a former Bush administration official is ever hauled before court for torture, it will make absolutely no difference that Bush issued a signing statement that said a statute restricting torture will be interpreted so as not to interfere with the president’s commander in chief power. Whether such a statement existed or not, a court would consider the constitutional argument and either accept or reject it on the merits. Nor is it legally novel that a president might refuse to enforce a statute that he believes to be unconstitutional. Larry Tribe, to his credit, chided Savage for insinuating in a “news” article that only right-wing lunatics and rear-end-covering former Clinton executive branch lawyers could think otherwise. (Here is Savage’s walking-on-eggshells report on the Obama statement.)
The Bush administration did use the signing statement as a vehicle for advancing its views about presidential power. But its views about presidential power were formally the same as those of its predecessors—and as those of its successor, apparently. It did press those views farther in some respects—especially in the interrogation and wiretapping controversies—but it backed down in response to internal disagreement led by Jack Goldsmith. These (real) controversies about presidential power had virtually nothing to do with whether presidents should issue signing statements and how many statutes they should be permitted to challenge. It remains unclear whether Bush’s views on presidential power in the end were all that different from Clinton’s or, if they were, whether the differences would have had practical importance.

Let’s take the claims in order. First, the claim that “signing statements have almost zero practical effect” is highly dubious. (more…)

Government Narrows Its Argument in Gtmo Habeas Cases

March 16, 2009

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…)

OLC Releases Two Profoundly Important Legal Memos

March 5, 2009

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 Hollow Men

March 3, 2009

For the better part of eight years, the Bush Administration employed distinctly muscular and macho imagery in connection with its theories of presidential power – think John Wayne or Clint Eastwood. But in its waning days the Administration’s legal theorists were reduced to a very different image: that of the diminutive and feckless Emily Litella of Saturday Night Live fame. Regarding those strident assertions of authority, “Nevermind.” Or maybe the better pop cultural reference is Dallas. Bobby Ewing did not actually die, the entire season in which he appeared to have gone to his reward was just a dream, and Bobby could return to the show. So it is that those opinions from John Yoo and Jay Bybee were just a bad dream, and it is safe for the rule of law to return. Or maybe it is the Wizard of Oz: “Ding dong, the wicked witch is dead.”

Whatever the reference, the revelation of the recent memoranda repudiating aspects of seven OLC opinions issued in the wake of the 9/11 attacks is stunning. I will leave discussion of the seven newly released opinions to another post. For now, I want to offer a few comments on the extraordinary memorandum (bearing the misleadingly banal caption: “Memorandum to the File”) that repudiates important components of the legal foundation for the Bush Administration’s theory of presidential power.

First, as far as I am aware, this Memorandum to the File is unprecedented. OLC occasionally reverses itself on a question. But I can think of no situation in which an Administration has gone back and repudiated its own analytical approach to an entire category of issues. This action speaks volumes as to just how deeply flawed those opinions were. There continue to be commentators who assert that opinions such as the infamous torture memo involve close calls over which reasonable lawyers may differ (a rant by Andrew McCarthy over the National Review Online provides a recent example). But the repudiating memo demonstrates that these opinions do not involve points of reasonable disagreement. Rather, they involve egregious and unjustifiable departures from accepted legal principles. The theories that guided the Bush Administration at least in 2001-2003 have been roundly rejected by commentators across the political spectrum, and now are repudiated by the very Administration and the very Office that had once issued them. It now seems beyond reasonable dispute that the theories espoused by OLC under the leadership of Jay Bybee and John Yoo were clearly wrong and unsupportable by reference to accepted legal principles. (more…)

Bush OLC Repudiates Its Own Opinions

March 2, 2009

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…)

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.

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…)

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…)

Revisiting the Torture Memos

February 14, 2009

Some of the most aggressive positions on executive authority taken during the Bush Administration are those found in the infamous “Torture Memo.”  We now know that this memo, dated August 1, 2002, provided the legal underpinnings for aggressive interrogation practices, including waterboarding, of a number of detainees.  After a series of questionable interpretations of statutory law, the memo concludes that the president as commander-in-chief can sanction practices that violate the Convention Against Torture as well as US statutory law prohibiting torture.  When this memo was leaked to the press, the Bush Administration withdrew it, but not before the legal damage had been done.  The role of Office of Legal Counsel lawyers, the Vice President’s office, and others, have been the subject of numerous congressional hearings, including a series of five focused on them held by the House Judiciary Committee during the 110th Congress. 

President Obama has repudiated interrogation practices that the Torture Memo held to be legally permissible, and his expressed preference for moving forward rather than engaging in recriminations argues for closing the door on this chapter in the war on terror.  Nonetheless, a question lurking in the controversy over the Bush Administration’s interrogation policies has been whether the legal authorization of these practices justified disciplinary or other action against the lawyers who drafted these memos.  Now, Mike Isikoff of Newsweek is reporting that the Office of Professional Responsibility has written a draft report critical of the performance of OLC lawyers in drafting the memo.  This report, which was circulated to Attorney General Mukasey sometime prior to his leaving office, looks like it will land on Attorney General Eric Holder’s desk.  When it does, it will force the Department of Justice to confront an uncomfortable question:  was the legal analysis deliberately shaped to provide legal cover for aggressive interrogation practices?  If the evidence suggests that possibility, it will become more difficult to defend the Torture Memo as a misguided, yet good faith, interpretation of the law – and the chapter door will have to remain open a little longer.