The Obama Administration's Position On The Deference Due To Its Decisions On Enemy Combatants

See also Jeralyn. While the Obama Administration got the headline it wanted, "Obama Will Not Use "Enemy Combatant" label, that is really meaningless. How the Obama Administration will define "enemy combatants" is a little bit more important. There are a few potentially meaningful changes, see Lyle Denniston. But I think the important aspect of the Obama Administration detention policy is what standard of review is to be applied by courts in habeas (and other types of proceedings for person captured and held overseas) proceedings of Executive decisions to detain. At footnote 2 of its brief (PDF) to the court, the Obama Administration asserts:

Moreover, courts should defer to the President’s judgment that the AUMF, construed in light of the law-of-war principles that inform its interpretation, entitle him to treat members of irregular forces as state military forces are treated for purposes of detention. See AUMF, § 2(a)(authorizing the President to use “all necessary and appropriate force” against those that “he determines” planned, authorized, committed, or aided the September 11 terrorist attacks or harbored those organizations); The Paquete Habana, 175 U.S. 677, 700 (1900) (court construes customary international law de novo only in the absence of a “controlling executive or legislative act or judicial decision”). A deferential approach in this context is consistent with the commonsense understanding that “[t]he war power of the national government ‘is the power to wage war successfully,’” Lichter v. United States, 334 U.S. 742, 767 n.9 (1948) (citation omitted), as well as the Supreme Court’s directive in Boumediene that “[i]n considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches,” 128 S.Ct. at 2276 (2008) (citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936)).

But what does "proper deference" mean here? The Obama Administration cites to Boumedienne for this proposition. Is the level of deference afforded in Boumedienne what the Obama Administration is arguing for? For the dissenters in that case were quite critical of the majority opinion's lack of deference. For example, Justice Scalia wrote:

Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As The Chief Justice’s dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.

But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information. See ante, at 54–55. During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. See Minority Report 14–15. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities. See id., at 15.

. . . [I]n response [to the Court's decision in Hamdan], Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. . . .

But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is “apparent.” Ante, at 40. “The Government,” it declares, “presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.” Id., at 39. What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

(Emphasis supplied.) Is this the deference that the Obama Administration is arguing for? Let's hope so. I doubt it, in light of the Obama Administration's position regarding the "states secrets" privilege. In its brief (PDF) to the court in a state secrets case, the Obama Administration argued:

Egan makes clear that the authority to control access to classified information is based on the President’s Article II powers under the Constitution and, whatever role Congress may have in regulating in this area, Article II does not grant the Judicial Branch authority to make determinations that usurp the President’s Article II powers. Thus, reading “authorized holder” under the Executive Order to include a Judicial officer, and allowing such an officer to overrule the Executive’s determinations, would itself be contrary to the authority outlined above.

To be honest, it is hard to reconcile the Obama Administration's failure to assert unfettered power to detain "combatants," which involves an unmistakable Commander in Chief function, with its view of having the unfettered power to declare information a "state secret." After all, the state secrets privilege was created by the Supreme Court in the 1950s. The power to detain combatants is a traditional and longstanding one, arising under the laws of war. The Geneva Conventions arose to provide basic guarantees for how prisoners were treated.

At this point, the Obama Aministration appears to be at sea on its assertions of Executive power, pulled between what candidate and then Senator Obama said versus his new impetus to maintain as much power as possible. To date, the difference between the Obama Administration and the Bush Administration with regard to assertions of Executive power are not wide.

Speaking for me only

< No Change From Obama on Indefinite Detention | The Limits To The Post Partisan Unity Schtick >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Thank you. This is most (5.00 / 1) (#6)
    by oculus on Sat Mar 14, 2009 at 12:58:40 PM EST
    disturbing.  More so, to me, than the state of the economy.

    Interesting... (none / 0) (#1)
    by jbindc on Sat Mar 14, 2009 at 12:36:53 PM EST
    Would love to see the political spin on:

    Moreover, courts should defer to the President's judgment that the AUMF, construed in light of the law-of-war principles that inform its interpretation, entitle him to treat members of irregular forces as state military forces are treated for purposes of detention.

    Apparently the AUMF is now a good thing.  

    Who knew?

    Well (none / 0) (#3)
    by Big Tent Democrat on Sat Mar 14, 2009 at 12:41:47 PM EST
    in one respect, this footnote as rather obtuse. In Hamdi, the SCOTUS ruled that the President has the power to detain "enemy combatants."

    The issue remains what review is given to Executive decision to detain - in short what due process is afforded detainees to challenge the Executive determination.

    Both the Constitution and the Geneva Conventions create requirements for providing a process for such a challenge and for outside review.

    In many respect, once Rasul was decided, at least for Gitmo, a habeas type of review is required by the Constitution.

    The harder questions are about places like Bagram, Afghanistan. What process must be afforded there? Clearly not court review (unless the detainee was captured on American soil or was transferred from Gitmo), but some type of meaningful review must be afforded imo. to date, the Obama Administration has argued that NO REVIEW is required.


    The Obama position on Bagram (none / 0) (#4)
    by Big Tent Democrat on Sat Mar 14, 2009 at 12:47:15 PM EST
    The Obama administration, siding with the Bush White House, contended Friday that detainees in Afghanistan have no constitutional rights.

    In a two-sentence court filing, the Justice Department said it agreed that detainees at Bagram Airfield cannot use U.S. courts to challenge their detention. The filing shocked human rights attorneys.

    "The hope we all had in President Obama to lead us on a different path has not turned out as we'd hoped," said Tina Monshipour Foster, a human rights attorney representing a detainee at the Bagram Airfield. "We all expected better."

    Link. I think this is probably correct as a legal matter. However, the Geneva Conventions requires that a "competent tribunal" pass on a determination that a detainee is an "enemy combatant." Until such time, these detainees are to be treated as "prisoners of war."


    Hmmmm (none / 0) (#5)
    by jbindc on Sat Mar 14, 2009 at 12:55:21 PM EST
    In Hamdi, the SCOTUS ruled that the President has the power to detain "enemy combatants."

    Think this might be challenged since there no longer are "enemy combatants"?

    The harder questions are about places like Bagram, Afghanistan.

    And since Bagram Air Base (actually, an Army Air Field) is occupied by the US military and is under the command of a 2-star Army general, why is this not considered American territory like GITMO, thereby having the same rules apply?

    Finally, part of my comment was meant as snark since all we heard was that AUMF was bad and certain people had better judgment than others and allegedly was spreading the word about how bad a vote it was.  But I guess it's all good now when you're on the other side.


    Foreign military bases (none / 0) (#9)
    by Big Tent Democrat on Sat Mar 14, 2009 at 01:35:31 PM EST
    have not been treated as American territory, and I think for largely good reasons.

    I am not uncomfortable with a lack of full blown habeas civil court processes in these cases (I think the Eisentrager decision is not unreasonable on this score), but I think some type of meaningful review is necessary.


    I haven't been following this closely (none / 0) (#10)
    by jbindc on Sat Mar 14, 2009 at 01:52:20 PM EST
    But wasn't that the argument about GITMO - that as a United States Marine Corps base, it is American soil, and as such, the prisoners should be afforded the same rights as if they were housed in Illinois?  Or am I completely off base (if you'll pardon the pun)?  

    Isn't it the same argument that if a baby was born at Gitmo, they would be an American citizen because s/he would have been born on American soil?


    No (none / 0) (#16)
    by Big Tent Democrat on Sat Mar 14, 2009 at 06:52:14 PM EST
    Gitmo is treated differenlty because the US has de facto soeriegnty by lease over Gitmo, not because it is an American militry base. See Rasul.

    What legal rights does a detainee (none / 0) (#11)
    by oculus on Sat Mar 14, 2009 at 01:56:45 PM EST
    if detained indefinitely w/o charges being filed on a foreign military base?  Geneva Convention?  If so, aren't there restrictions on holding a person without Red Cross access, notice to relatives, etc.?

    Under Article V of the 4th Convention (none / 0) (#12)
    by Big Tent Democrat on Sat Mar 14, 2009 at 02:00:07 PM EST
    a detainee has the right to have his designation as a combatant be reviewed by a "competent tribunal."

    Bummer (none / 0) (#2)
    by squeaky on Sat Mar 14, 2009 at 12:37:50 PM EST
    Glad the ACLU, and the CCR did not disband when Obama got elected. Looks like we are going to need them.

    So much for bringing the executive office back to where it was before BushCo.

    Wonder when Dawn Johnsen is going to be confirmed.  

    Thank you. (none / 0) (#7)
    by Maryb2004 on Sat Mar 14, 2009 at 01:29:17 PM EST
    I haven't been following this as closely as I probably should.  

    In my view (5.00 / 4) (#8)
    by Big Tent Democrat on Sat Mar 14, 2009 at 01:33:34 PM EST
    those objecting to Obama's actions on this are missing what is actually objectionable - the degree to which he is not renouncing the view that exercises of executive power are not reviewable.

    In that sense, I think I disagree with the ACLU. I think the new definition of "enemy combatant" is likely a good and somewhat meaningful development. do they want it even narrower? Sure. But Obama's standard is not unreasonable (the fact is neither was Bush's.

    What IS unreasonable is the view that determinations of the Executive branch on detention of enemy combatants is basically unreviewable. The Obama Administration has not renounced that view, and in the state secrets context,, has expressly adopted it.


    The question for me (none / 0) (#18)
    by Maryb2004 on Sun Mar 15, 2009 at 09:52:53 AM EST
    is whether the positions they take within a legal proceeding do not have any basis in law and therefore shouldn't even be argued.  It doesn't actually bother me when someone  involved in a court case argues the furthest extent that the law could be interpreted - positions that might allow unreasonable actions in the real world. In that case, in my view, it is for the court to reject their views.  

    So I'm not sure that I agree that the DOJ should abandon their arguments in court while I completely agree that the Obama administration should abandon their views and practices in the real world. Just because your lawyers argue that you should be allowed to do something doesn't mean you have to continue to do it. Especially if you are the new executive and have inherited the problem from the old executive.  The problem here is that with all the secrecy we have no idea if they have abandoned the practices in the real world or are continuing Bush practices partly because we have the same problem we had during the Bush administration - a Congress that won't do oversight.


    I disagree with you (none / 0) (#19)
    by Big Tent Democrat on Sun Mar 15, 2009 at 10:33:44 AM EST
    It is one of the reasons I call for OLC trasparency on these issues.

    One issue (none / 0) (#17)
    by lilburro on Sat Mar 14, 2009 at 07:15:16 PM EST
    I have is that the standard of functional evidence is still very much a vague, guilt by association thing - "training with Al-Qaida (as reflected in some cases by staying at Al-Qaida or Taliban safehouses that are regularly used to house militant recruits."  There is no possible reason that someone might end up in a house used for terrorist activity and still be innocent (ex. Mr. Razak Ali)?  This is why additional review and habeas corpus are important.