Under President George W. Bush, a small group of advisors tied closely to Vice President Dick Cheney argued that neither Congress nor the judiciary should attempt to prevent the President from doing whatever he felt was appropriate as the Commander-in-Chief of a “War on Terror” that was declared after the terrorist attacks of September 11, 2001. As Sidney Blumenthal explained in an article for Salon in January 2006, the President and his advisors believed in the “unitary executive” theory — “the idea that the President as Commander-in-Chief is the sole judge of the law, unbound by hindrances such as the Geneva Conventions, and possesses inherent authority to subordinate independent government agencies to his fiat.” Blumenthal added, accurately, that this concept was “the cornerstone of the Bush legal doctrine.”
The extreme position taken by John Yoo regarding Presidential power
The most grisly public assertion of this purported dictatorial power came in December 2005, in a debate in Chicago between Notre Dame law professor Doug Cassel, and John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel, who had written two memoranda in August 2002 purporting to redefine torture so that it could be used by US personnel. This was the exchange:
Doug Cassel: If the president deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
John Yoo: No treaty.
Doug Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
John Yoo: I think it depends on why the president thinks he needs to do that.
As recently as February this year, Yoo continued to defend the President’s absolute right to do what he considered “necessary” in wartime without opposition, and was, to a distressing extent, justified in doing so when a senior Justice Department official, David Margolis, rewrote the conclusion of a four-year internal investigation into the “torture memos,” claiming that Yoo (and Jay S. Bybee, the head of the OLC), were not guilty of “professional misconduct,” as the report’s authors had asserted, but had, instead, merely exercised “poor judgment.”
The Obama administration must bear the responsibility for allowing Margolis to doctor the report so shamefully, especially because, on his second day in office, President Obama issued a number of executive orders, one of which thoroughly repudiated his predecessor’s reliance on claims of unfettered executive power. In cleaning up the “mess” inherited from the Bush administration with regard to torture and detention without charge or trial, Obama also issued an executive order upholding the absolute ban on torture, and made it clear that, in authorizing the detention of prisoners seized in the “War on Terror” who were held at Guantánamo, he would only rely on legislation passed by Congress.
The problems with Obama’s reliance on Congress and the Authorization for Use of Military Force
Although there are gray areas regarding Obama’s torture ban (particularly with regard to the US prison at Bagram airbase in Afghanistan, where challenges to prisoners’ detention have also been resisted), the President has been true to his word regarding the detention of prisoners at Guantánamo, relying only on the Authorization for Use of Military Force, passed the week after the 9/11 attacks, which authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States,” and which, as interpreted by the Supreme Court in Hamdi v. Rumsfeld, in 2004, involved the assertion that “Congress has clearly and unmistakably authorized detention” of individuals covered by the AUMF.
Unfortunately, this apparent distinction between relying on claims of executive power or relying on Congressional authority means little in reality to the prisoners held at Guantánamo, because the AUMF is an overbroad policy, which fails to distinguish between al-Qaeda and the Taliban, and seems to justify holding even the most peripheral figures in the military conflict in Afghanistan in 2001 (as well as genuine terror suspects) in the same sort of open-ended detention created by President Bush. The result is complacency on the part of the administration regarding the importance of trying or freeing the remaining prisoners, after over eight years of detention.
In addition, in the District Court in Washington D.C., where judges have been ruling on the prisoners’ habeas corpus petitions for the last two years, the overbroad scope of the AUMF has led to the denial of 16 out of 54 petitions, mostly because the men in question were foot soldiers for the Taliban, and not because they had ever demonstrated any involvement in terrorism.
While I believe that the majority of these rulings also fail to fulfill the AUMF’s requirement that the men detained are being deprived of their liberty “to prevent any future acts of international terrorism against the United States,” adding to the unsuitability of the AUMF as a substitute for holding soldiers as prisoners of war according to the Geneva Conventions, a more pressing problem is that, as the prisoners have been challenging these rulings, they have discovered that the Court of Appeals has been resolutely looking the other way. In a number of rulings, judges in the D.C. Circuit Court have demonstrated that they are determined not only to deny the prisoners’ appeals, but also to tell the government that its powers of detention are far more sweeping than the AUMF suggests.
The case of Ghaleb al-Bihani, a cook
This bizarre, and genuinely disturbing scenario first surfaced in January this year, in the case of Ghaleb al-Bihani, a Yemeni who had cooked for Arab forces supporting the Taliban in a military capacity, and had lost his habeas corpus petition in January 2009. In a ruling denying his appeal (PDF), two of the most conservative judges in the D.C. Circuit Court — Judge Janice Rogers Brown, and Judge Brett M. Kavanaugh, both appointees of George W. Bush — not only defended al-Bihani’s detention under the terms of the AUMF, but also dismissed arguments made by al-Bihani that “rel[ied] heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war.” The judges claimed, “This premise is mistaken.”
Judge Brown also described the international laws of war as not “a fixed code,” refused to “quibble over the intricate application of vague treaty provisions and amorphous customary principles,” and concluded that “their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.”
In response, Senior Circuit Judge Stephen F. Williams, the third judge, who concurred with the overall judgment and with part of the majority opinion, took exception to this conclusion, noting that the paragraph ending in “This premise is mistaken” was “hard to square with the approach that the Supreme Court took in Hamdi.” Judge Williams quoted Justice Souter, who stated explicitly, “[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.”
This may not be much, but it was refreshing that Judge Williams at least perceived that the Supreme Court had set limits on the Executive’s wartime detention powers, and that he chastised the other judges for putting forward an argument that “goes well beyond what even the government has argued in this case” — that “[t]he authority conferred by the AUMF is informed by the laws of war.”
Judge Williams’ opinion chimed with that of numerous legal experts who were appalled by the Circuit Court’s Bush-like advocacy of unfettered executive power — and also, as he pointed out, endorsed powers for the Obama administration which went “beyond what even the government ha[d] argued in this case.” His reference to the government’s argument resurfaced in May, when the government submitted a brief (PDF), in which, although lawyers opposed en banc review and agreed with the Circuit Court on almost every point in its January opinion, they disagreed with the court’s opinion about Presidential power and the international laws of war.
As the government’s lawyers explained in their brief:
Petitioner cites the panel majority’s statement that the “premise that the war powers granted by the [Authorization for Use of Military Force] and other statutes are limited by the international laws of war is mistaken.” The Government agrees that this broad statement does not properly reflect the state of the law. The Government interprets the detention authority permitted under the AUMF as informed by the laws of war.
In addition, as I explained in a recent article:
The lawyers proceeded to explain that their interpretation was “consistent” with Hamdi, as cited above, “and with longstanding Supreme Court precedent that statutes should be construed as consistent with applicable international law.” The lawyers also pointed out that the government had accepted “its detention authority under the AUMF to be informed by the laws of war” in a court filing on March 13, 2009, in response to a request for clarification from Judge John D. Bates, which I discussed in an article entitled, “Guantánamo: The Nobodies Formerly Known As Enemy Combatants.”
The D.C. Circuit Court backs down on Presidential power
Last Tuesday, the Court of Appeals finally issued an opinion on al-Bihani’s appeal (PDF). Predictably, all nine judges turned down the appeal, but in an unusual move, seven of the judges — Chief Judge David B. Sentelle and Judges Douglas H. Ginsburg, Karen LeCraft Henderson, Judith Ann Wilson Rogers, David S. Tatel, Merrick B. Garland, and Thomas B. Griffith — issued the following joint statement:
We decline to en banc this case to determine the role of international law-of-war principles in interpreting the AUMF because, as the various opinions issued in the case indicate, the panel’s discussion of that question is not necessary to the disposition of the merits.
Although the decision does nothing to challenge the fundamental problem with detaining al-Bihani under the AUMF, rather than as a prisoner of war, it is enormously significant, as was pointed out by Stephen Vladeck, Professor of Law at American University Washington College of Law, who filed an amicus brief in support of the en banc appeal. Vladeck told the New York Times that the note by the seven judges “amounted to a nullification of the more sweeping parts of the January ruling without the court bothering to rehear it.” He added, as the Times described it, that the paragraph “tells the world that the section of the January ruling about international law should be treated like what lawyers call ‘dicta’ — editorializing about issues that are not necessary to decide the matter at hand, which has little controlling authority for other cases.” As Vladeck explained,
They’ve basically removed the single biggest complaint people had with that opinion. They said, “We don’t think we need to rehear the whole case just to limit the opinion — we can just say it, and going forward this is how we understand it.” That matters a lot.
Confirmation of Vladeck’s opinion can be found in the responses of Judge Brown and Kavanaugh. In a desperate attempt to salvage their defense of sweeping war powers, unrestrained by the international laws of war, Judge Brown issued a 15-page opinion, attacking her colleagues for “appending ‘a cryptic statement’ that she said would ‘muddy the clear holding’ that international law does not limit the war powers Congress authorized,” and Judge Kavanaugh issued an 87-page opinion, arguing that “only rules explicitly enacted by Congress, not international laws of armed conflict, can constrain what an American president can do in wartime,” and stating, “International law is not a judicially enforceable limit on a president’s wartime authority unless Congress expressly says it is” (emphasis in original).
On Balkinization, Stephen Vladeck summed up the significance of the seven judges’ note by stating, “Whatever the merits of the decision in al-Bihani’s case, specifically, its significance in other cases has been unquestionably lessened (along with any chance that the Supreme Court would feel the need to step in).” This is to be welcomed, but although it is reassuring that seven judges (two nominated by Reagan, one by Bush Sr., three by Clinton and one by Bush Jr.) refused to endorse their colleagues’ extreme opinions, it is still apparent that the courts’ jurisdiction regarding the Guantánamo habeas cases leaves the fundamental problems with the AUMF untouched.
Why none of this helps al-Bihani — or other Guantánamo prisoners
At the heart of al-Bihani’s appeal is his contention that the AUMF only authorizes detention “for the sole purpose of preventing future acts of terrorism against the US,” and that it therefore “authorizes preventative, not punitive, detention,” because the government has failed to prove that he poses a future threat to the United States. To my mind, this is a powerful argument, and it is one that was first advanced by Judge Ellen Segal Huvelle in March 2009, in the case of Yasim Basardah, a Yemeni prisoner.
What troubled Judge Huvelle, as I explained in an article last summer, was the fact that the Guantánamo prisoners were akin to prisoners of war, but without the ability to be released if it could be demonstrated that they no longer posed a threat to the United States. Drawing on the AUMF’s authorization to hold prisoners “in order to prevent any future acts of international terrorism,” she declared that the AUMF “does not authorize unlimited, unreviewable detention,” and “does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining the battle, and it certainly cannot be read to authorize detention where its purpose can no longer be attained.”
Unfortunately, judges in other habeas cases have failed to follow up on Judge Huvelle’s suggestion, but even more worrying, for the prisoners, must be the fact that one other judge, Senior Judge A. Raymond Randolph (who was not part of the nine last week), has thrown another hurdle in the prisoners’ way. In an appeal in July, reversing a successful habeas petition last August — that of Mohammed al-Adahi, another Yemeni — Judge Randolph, notorious for upholding every Bush decision on detention in the “War on Terror” that was subsequently overturned by the Supreme Court, drifted off the point as dangerously as Judges Brown and Kavanaugh, indicating that he believed that the standard of evidence required in the habeas cases was too high for the government.
Given that all that is required is for the government to prove, “by a preponderance of the evidence,” that plaintiffs in the habeas cases were involved in some way with al-Qaeda and/or the Taliban, and that this standard is much lower than it would be in criminal trials, Judge Randolph was clearly using some creativity to reach the same ideological place as Judges Brown and Kavanaugh — that, in wartime, the President should not be subjected to constraints on his power.
How this will affect future cases has not yet become apparent, although it will surely strengthen the hand of those in the Justice Department — and elsewhere in the administration — who have been pushing for appeals in the cases of prisoners who have won their habeas petitions, and have, to date, appealed five successful petitions, as well as repeatedly appealing against an order to release 17 other men (the Uighurs) into the United States.
Compared to that, last Tuesday’s ruling, though welcome in its restraint on executive power, still does nothing to free men from Guantánamo or have them redesignated as prisoners of war, even when, as with Ghaleb al-Bihani, they were nothing more than a cook who, as far as we know, never fired a single shot at US forces.
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