What Is And Is Not Different About Obama's Guantanamo Claims
That's true....in part. But there's also some important respects in which it is not true. Since I once wrote an extensive paper that dealt with many of the same issues of executive power and international law addressed in this brief, I thought I might be able to offer some helpful perspective.
1. Yes, Obama asserts a power to detain the Guantanamo detainees without trial or charges. But the first, and most important, difference between Obama and Bush is that Obama doesn't base this asserted power on the supposed inherent powers of the Executive to detain anybody seen as a threat to national security. The Bush Administration - especially Dick Cheney and John Yoo - did. Rather, Obama bases it on the Authorization for Use of Military Force (AUMF) passed after 9/11 - which for all intents and purposes was a declaration of war against Al Qaeda and the Taliban - and on the international law of war. (For an explanation of why there is essentially no legal difference between an a declaration of war and an AUMF, see my blog post on the subject.) This is important for a couple of reasons.
First, there's a huge difference between saying the President can detain anyone at any time if he deems it beneficial to national security.....and saying he can detain people affiliated with Al Qaeda and the Taliban. (More on that, including the dangers of that word "affiliated" in a moment.)
Second, there is a difference between claiming an inherent executive authority and claiming Congress has authorized an action. If Congress has authorized something, Congress has the power to de-authorize it. (As I argued in my paper, Congress does have the power to tell the President what to do, even in matters of war and national security that are traditionally considered the President's prerogative.) The part that always scared me the most about Bush's claims is that he essentially was claiming unlimited executive power to detain anyone, regardless of what Congress said or did, as long as he slaps the label of "national security" on his justification. Obama is not making that claim.
Third, in basing his claim in part on the international law of war, Obama to some extent cannot help but import the protections of the law of war as well. I would argue that means the Geneva Conventions. (Actually, the Supreme Court has already ruled that it does.) The Bush Administration specifically argued that international law did not in any way limit its powers to detain individuals.
Now there's an important downside to Obama's argument that the brief addresses (briefly...rim shot) but then glosses over. It's a relatively uncontroversial position to say that, during a traditional war between states, one side can hold the POWs of the other side until the end of hostilities without charging them with a crime. It's a more controversial - but, still, I would argue - sound proposition to say that one can declare war against non-state actors. (As early as the Jefferson Administration, we were conducting war against the Barbary pirates.) BUT, we've never quite had a war like the "War on Terror." Even if we define the War on Terror as only that military conflict authorized by the AUMF, it's still a war of indefinite duration against a difficult-to-define enemy (again, more on that in a moment). If Obama can hold POWs until the end of hostilities, what constitutes the "end of hostilities"? We're never going to sign a peace treaty with Al Qaeda. We're never going to wipe out Al Qaeda. (Or, more to the point, we arguably already have mostly wiped out the original organization called "Al Qaeda" and it's been reborn as a franchise, of sorts.) So when does the power to detain people - even obvious Al Qaeda and Taliban operatives - end? This is an important and troubling issue that the DOJ brief should have addressed.
2. Another major feature of the Obama DOJ's argument is the limits it places on whom he may detain. The DOJ brief defines the enemy in the language of the AUMF: "The President has authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the attacks." Basically, this means Al-Qaeda (who planned, authorized, committed, and aided the 9/11 attacks) and the Taliban (who harbored Al-Qaeda).
This is important. This is a real limit on the people the President can detain. He can't just detain anybody whom he considers a threat to national security. He can't just detain anybody he doesn't like (which, let's face it, is what our concern re: unlimited detention power is really all about). In fact, there are some terrorist groups he can't detain. For instance, the Real Irish Republican Army, despite their recent terror attacks in Northern Ireland, do not fall within the President's detention authority in the War on Terror. They didn't have anything to do with 9/11 and thus fall outside the AUMF's authority (even if they are currently planning an attack on the United States). So would the Janjaweed in Darfur, or whatever militant group Timothy McVeigh was a part of. This is good. Not that I like any of those groups; of course they should all be opposed. But this means that the AUMF, and by extension President Obama's authority to detain people without trial, has real limits.
But, in its very next sentence, the DOJ brief tries to wriggle its way around those limits: "
This is dangerous. What, exactly, is "substantial" support? What are "associated forces"? And when did the AUMF include those who are "engaged in hostilities against . . . [America's] coalition partners"? I'll tell you what all these vague phrases mean. They mean the Obama Administration does not want to shut the door on detaining people who are NOT a part of 9/11 and have tenuous connections to Al Qaeda and the Taliban. Let's be clear, someone who attacks American forces in Afghanistan is probably already part of the Taliban or Al-Qaeda by virtue of that attack. The extra sentence the brief uses to define the President's detention authority therefore adds nothing...unless it is meant to keep the door open to Obama changing his mind about whom he wants to detain.
There is no textual support in the AUMF for this asserted authority. Even the brief itself only makes a half-hearted effort to argue for it, basing it in the asserted purpose of the AUMF to "prevent any future acts of international terrorism against the United States." That's ridiculous. The AUMF set forth its purpose....AND specifically directed the President what he could do to effectuate that purpose. It didn't place many limits on the force he could use, but it sure as heck placed limits on whom he could use it against. Heck, the Bush Administration claimed all of its detentions, tortures, and kidnappings were for the purpose of preventing future terror attacks. (And I believe them.) The point of law is to place limits on what well-intentioned or ill-intentioned people can do. (The law can't govern people's hearts, after all.)
Still, in my calmer moments, I realize that the above definition is not so broad as to authorize the detention of, say, Bobby Jindal. We aren't yet in a state that imprisons its political enemies. Honestly, it still probably doesn't even cover the Real IRA. But the slippery language is a real concern.
Now, what difference does any of this make? Not much of a difference for the guy sitting at Guantanamo Bay. Whether it's because of the AUMF or because of inherent executive authority, he's still stuck. Then again, as a matter of policy (if not as a matter of the legal limits on his authority) Obama's shutting down Guantanamo Bay. So I still have high hopes that Obama will wage a smarter War on Terror.
The DOJ brief leaves some troubling holes and presents a potentially disturbing view of the powers of the Presidency during our ongoing (unending?) War on Terror. But it's all less dangerous to our Constitutional system of government & to the rule of law than the Bush Administration's claims.
I hope all this helps my readers have a more informed view of some the latest legal developments.
In the time since I started writing this (Saturday last week), a number of voices on the Web have discussed some of the same themes as this post. See the Nation, the Constitutional Law Profs Blog, and the NY Times editorial. See also Glen Greenwald's post, which I linked to in the first paragraph of this post. I swear I came up with these observations independently of what they have to say.