Posts Tagged ‘detention’

Correcting the Record on Dawn Johnsen’s Record

April 17, 2009

In a post yesterday on Powerline, Paul Mirengoff argued that the Senate should reject the nomination of Dawn Johnsen to head the Office of Legal Counsel. Even though his post was full of errors, some bloggers seem to regard it as credible. So, a point-by-point correction is in order.

  • Mirengoff argues that “There is strong reason to believe that Dawn Johnsen will consistently err on the side of protecting terrorists and denying the president the power to protect the nation. This fear is not based solely on her blogging; it also stems from her law review articles and, to a lesser extent, statements she has made or declined to make during the confirmation process.”

In fact, Johnsen has urged critics of the Bush Administration to be careful and focused, cautioning them not to let their disagreement with Administration policies lead them to a weak view of executive authority. “Regardless of who proves correct about the general post-Bush direction of presidential power,” she has written, “there is some risk that reactions to the Bush experience—public sentiment, political considerations, or mistaken constitutional understandings—might distort criticism and harm legitimate and valuable executive powers. Commentators certainly should not mute their principled criticism, but they should avoid imprecise and over-generalized reactions that might undermine the ability of future Presidents to exercise legitimate authorities.” 88 Boston U. Law Review 395, 398 (2008). (more…)

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Posted in Commentary, Hearings | 3 Comments »

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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Posted in Commander-in-Chief power | Comments Off

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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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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