Posts Tagged ‘preclusive power’

Executive Power and the 80% Problem

March 24, 2009

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…)

Obama’s Policy on Signing Statements

March 9, 2009

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…)

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…)

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…)

Johnsen’s Confirmation Hearing as OLC Head — The Right Choice

February 25, 2009

 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…)

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.

Holder Hearings - Part II

February 11, 2009

An earlier post observed that pinning down the views of any lawyer in the Executive Branch on the scope of the president’s authority to override or disregard statutes can be extremely difficult.  Individuals being questioned about the limits of the president’s constitutional authority quite often respond with a statement of policy.  Even when the answer does speak to constitutional authority it often contains weasel words:  it is hard for any president’s lawyer voluntarily to take the idea that actions taken contrary to law could be lawful in extreme circumstances entirely off the table.  But then the effective limitation of the president’s powers depends on who is defining “extreme.” The earlier post provided examples from Eric Holder’s confirmation hearings of answers that might have soothed the worries of questioning Senators but actually failed to limit the President’s authority very much.  There were two exchanges, however, one with Senator Leahy and the other with Senator Hatch, in which Mr. Holder went beyond policy statements and avoided weasel words — one regarding authorization of torture and the other the use of warrantless intelligence surveillance.  Here they are:  (more…)

The Incredibly Slippery Idea of Executive Authority

February 7, 2009

The Holder Hearings — Part I

The recently departed Bush Administration took a notoriously broad and aggressive view of presidential or executive authority.  President Bush and his lawyers thought that the President can disregard statutory prohibitions if they interfere with the President’s opinion of what actions would serve the national defense.  So Congress has passed laws making surveillance authorized by warrants from a federal court the only way to eavesdrop on terrorist conversations inside the United States, but the President thinks the warrant procedures are too restrictive?  No problem - the President can ignore the statute, because the Constitution makes him the commander-in-chief and gives him the authority to perform that job effectively.  The argument is laid out on pages 28 to 36 of a White Paper issued by the Department of Justice shortly after the New York Times ran a story revealing the secret warrantless surveillance program that the National Security Agency had been running after September 11.  This authority of the President to override statutes showed up in many of the signing statements that President Bush issued concurrently with signing pieces of legislation, infuriating members of Congress and often leaving people in the dark about when the President would follow the law or choose to disregard it.

There is now a great expectation that the incoming Obama Administration will take a noticeably different view of presidential authority.  During the presidential campaign he signaled that he intends to obey the Constitution and the rule of law.   And already he has begun rolling back some of the more controversial actions President Bush took as commander-in-chief, notably including, President Obama issued an executive order to roll back controversial commander-in-chief actions of President Bush, notably including ordering a stop to the military commission trials of Guantanamo detainees so that the people being held there can each be evaluated individually to decide whether a trail should proceed in a regular federal court or a regular military court martial.

It would be startling if there was not a significant shift on questions of presidential authority under President Obama - but at the same time one ought to be cautious in drawing firm conclusions regarding exactly where the Administration now stands on each of the many different aspects of executive authority.  While it is often the case that actions speak louder than words, executive authority is situation in which actions can be ambiguous and words incredibly slippery.  An action like closing down military commissions could mean that the President thinks he lacks the unilateral authority to create them or it could mean he has decided not to use military commissions because of how they have damaged our international reputation, even though he thinks he has the unilateral authority to use them if he wished.  Decisions not to exercise authority always are ambivalent in this way, because failures to act are equally consistent with someone lacking the authority to act and also with someone having the authority and just declining to exercise it.  (With respect to the military commissions themselves, of course, this question has become moot because five years after President Bush established them unilaterally, Congress enacted the Military Commissions Act giving them a statutory foundation.)     (more…)