an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Various developments on the resolution-of-Gitmo front to discuss. First a quick note on a recent signing statement. Then on to rumors of a contemplated executive order on detention issues. The war spending bill I mentioned in a previous post barring the president from bringing any current Gitmo detainees to the United States was signed into law by the President on June 26. In my last post, I’d given the administration credit for not having made an Article II argument (about the constitutional power of the president) against Congress’ enormously misguided provision requiring the President to report to Congress in the midst of his negotiations with foreign governments over resettling some Gitmo detainees. Congress, despite having given its overwhelming and bipartisan support to the notion of closing Gitmo last year, is well on its way to making it impossible for the President to ever relieve the United States of the Gitmo-anvil around its neck. That said, looks as though I spoke too soon about the administration’s avoidance of any Article II claims of authority. In a signing statement issued on June 26, the President writes:
“[P]rovisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations.”
I have tended to find the practice of signing statements less concerning than others. Presidents have always issued them. The courts – exercising independent authority to interpret the law for themselves – have always ignored them or not, at their discretion. That is, more or less, how it should be in a government of coequal branches. Moreover, in this case, if there is anything that actually is constitutionally committed to the executive, it is the authority to negotiate agreements with other states without interference from the House of Representatives at a minimum. U.S. Const. art. II, sec. 2 (“[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties…”). Nonetheless, as my Opinio Juriscolleague notes rather more critically, it is a development that bears watching. Which brings me to the more important item.
“Three senior government officials with knowledge of White House deliberations” have floated the notion of issuing an “executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely.” The must-read Washington Post piece is here. What are we to make of this? While it’s always risky to comment on a policy still in development – one the administration as best I can tell genuinely hasn’t settled on yet – I think there are a few preliminary points of note. First, the news that the administration is moving away from the notion of introducing legislation to create a new “preventive” detention system (and/or a national security court to go with it) is welcome indeed. I have elsewhere set forth why I think such legislation is a bad idea (see, e.g., here or here). As a method of resolving the particularly ugly problem of Gitmo, it at best trades off one set of legal challenges (in particular the due process problem of finding broad detention authority contained in a statute, the 2001 Authorization for the Use of Military Force, that does not mention the word detention and can draw on only the vaguest guidance from international law to cabin its scope) against another (depending on its contours – due process, ex post facto, and/or equal protection problems of its own). As a long-term approach to counterterrorism more broadly, it risks exacerbating the adverse strategic security consequences the United States has already suffered from pursuing overbroad (and easily abused) detention and interrogation programs that lack settled legitimacy under law. More simply, broad power to reach out anywhere in the world and detain anyone we want will win the hearts and minds of no one.
If nothing else, the White House has evidently (and I think rightly) concluded that the prospects of getting any legislation, much less any good legislation, out of Congress on the Gitmo question during this health care season and before the January closing deadline is not going to happen. But with Congress having now eliminated the prospect of bringing any Gitmo detainees to the United States at least for FY09 (with similar legislation likely for FY10, so we can yet hope Congress reconsiders), that January deadline just got a lot harder to meet. So now what?
For Gitmo, it’s worth trying to picture how an executive order would especially help. Of the five categories of detainees there the President has named: (1) Congress seems for the moment to be tolerating allowing detainees to be brought to the United States for criminal trial; (2) The President has already made some administrative changes in the military commission rules, but for the rest – alas – he needs Congress to amend the Military Commissions Act of 2006; (3)-(4) Detainee transfers to other countries (for release or continued detention) can proceed apace (or as apace as it gets when we’ve spent the last 8 years alienating most of our international allies) as long as Congress stays out of the way. One doesn’t need an order for any of this to move forward.
It may not be immediately apparent why it would help for category (5) either – the group of Gitmo detainees the administration says should not be charged or released because, for example, they served as leaders of Taliban forces in Afghanistan. For this group, the administration has already, mostly successfully, advanced a construction of the AUMF in federal habeas court that would extend to authorize the continued military detention of “members” of Al Qaeda (where membership may be determined in part by conduct). It’s possible that an executive order could help insulate that construction against continuing due process challenge by clarifying or reinforcing the definition of who may be detained under the AUMF, or (better) by expressing the administration’s view that the rather broad authority they’re now claiming in court under the AUMF was intended to be of limited duration (long enough to deal with the “legacy” detainees, but not extending indefinitely into the future). But it’s also possible courts would find such a post hoc “interpretation” of little – or perverse – significance at this stage. What the administration really needs to be able to continue to detain category 5 detainees is a place to put them. Gitmo itself is no longer an option. And neither – at least until Congress relents – is the United States. Which brings us back to Afghanistan.
The military continues to detain some hundreds of people at the U.S. Air Force Base in Bagram, Afghanistan. Given the ongoing armed conflict there, and even a narrower reading of the AUMF, the Administration has a strong case it has ongoing authority to detain at least some set of individuals there. The more pressing legal problem at Bagram is about process. By all accounts, the amount of review accorded the average Bagram detainee is less than that available under the now-discredited CSRT process once used at Gitmo. The Supreme Court’s decision in Boumediene, extending constitutional habeas rights to the Gitmo detainees, left open the question whether habeas extended to U.S. detainees held elsewhere. The Administration has already lost once on that question in district court. I’d put even odds on whether the Supreme Court would extend habeas rights to Bagram, depending largely on the facts of the particular case, and what Justice Kennedy has for breakfast that day. More, though, the Court’s willingness to extend habeas to Bagram will depend in part on how much process the detainees there have already had. Some far more serious administrative process than that already in place could only help the Administration’s position. And especially if there’s now some contemplation of sending some of the Gitmo detainees to Afghanistan – which is, after all, where most of them were seized in the first place and where, if not for the policy brainstorm that created Guantanamo Bay, many of them could likely still be held in some capacity today – an executive order could be a positive step forward.