Posts Tagged ‘commander-in-chief’

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…)

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…)

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.