Legal Commentary

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

By Big Tent Democrat

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

Full post as published by TalkLeft on March 14, 2009 (boomark / email).