Due Process?

by Kevin Jon Heller

I in no way believe that Deb exhibits “virtually pathological level of tribal loyalty and monumental intellectual dishonesty,” and I doubt that Glenn does either.  That said, I am not sure that Deb’s (clearly initial) thoughts on the Obama administration avoids Glenn’s basic critique — that Obama supporters justify his increasingly Bush-like policies by de-emphasizing substance in favor of personality and process, focusing on the superiority of Obama’s coterie of advisors and his decision-making process instead of on the policies that the process ultimately generates.  I freely concede the personality and process argument, but I draw the opposite conclusion: that Obama’s superior advisers and decision-making process means that it is even more indefensible that he has abandoned a number of his most important campaign promises concerning national security.  I never expected Bush’s advisers — the Yoos and Addingtons — to support sensible limits on the power of the Executive.  But I certainly expected — and continue to expect — Obama’s advisers to do so.  And yet, time and again, Obama mimics the worst excesses of the Bush administration.

One example: Obama’s appalling position on whether a federal court has the authority to order the Executive to disclose classified information that it would rather keep secret.  That position directly contradicts the idea that Obama has “categorically repudiated” the Bush administration’s radical “constitutional theory of the unlimited, inherent authority of the executive.”  Here’s Glenn:

The brief filed by Obama on Friday afternoon (.pdf) has to be read to believed.  It is literally arguing that no court has the power to order that classified documents be used in a judicial proceeding; instead, it is the President — and the President alone — who possesses that decision-making power under Article II, and no court order is binding on the President to the extent it purports to direct that such information be made available for use in a judicial proceeding.  From page 5 of the Obama Brief, filed after its loss on Friday:

That’s about as clear as it gets.  There is only one branch with the power to decide if these documents can be used in this Article III court proceeding:  The Executive.  What the President decides is final.  His decision is unreviewable.  It’s beyond the reach of the law.  No court has the authority to second-guess it or to direct the President to comply with a disclosure order.

With respect, I am also not convinced by Deb’s defense of the Obama administration’s decision to appeal Judge Bates’ extension of habeas rights to three detainees at Bagram.  As she characterizes it, that decision simply reflects the administration’s determination to give its inter-agency task force the time it needs to complete its work.  Even putting aside the gross unfairness of asking detainees who spent up to six years in captivity without any kind of judicial process to wait an additional six months — which Deb acknowledges — I don’t think the administration’s appeal is “plainly designed to leave options open, and to try to keep more decisions from being forced before they’ve been made.”  Read the brief that Deb cites and judge for yourself: is it the work of a reluctant Justice Department trying to complete its review process, or of a zealous Justice Department trying desperately to avoid judicial scrutiny of US detention practices in Afghanistan?  It seems to me that the latter is true — page after page, the brief attacks Judge Bates’ careful and limited extension of Boumediene to Bagram: the US does not have complete control over Bagram (p. 6); Bagram does not have a “unique history” that makes it equivalent to an unincorporated territory of the US (p. 7); providing the Bagram detainees with habeas would undermine the military’s detention regime in Afghanistan (p. 8); providing the Bagram detainees with habeas would divert the military from its efforts to combat terrorism (I’m not making that up — p. 9) and force it to alter its combat operations (I’m not making that up, either — p. 10).

Deb?  Your thoughts?

http://opiniojuris.org/2009/04/15/due-process-2/

5 Responses

  1. In order to get an appeal, you have to point to “a controlling question of law as to which there is substantial ground for difference of opinion.” So, regardless of what the motives are for filing the brief, whether it is “the work of a reluctant Justice Department trying to complete its review process, or of a zealous Justice Department trying desperately to avoid judicial scrutiny of US detention practices in Afghanistan,” it cannot agree with the decision. That would not be a substantial ground for difference of opinion.

    In short, you cannot get an appeal by arguing that the decision is a “careful and limited extension of Boumediene.” 

    So, Mr. Heller, assuming the pure motives posited by Deb, what would the appeal look like? 

  2. Greg,

    I have no idea.  As I said, I believe that the arguments in the appeal are the official positions of the Obama administration, not mere placeholders to buy it additional time to complete its task-force review.

  3. It’s obvious, then, that there could be no appeal without making these arguments – placeholders or no. 

    So, how would you tell the difference? If, regardless of motive, the appeal will look exactly the same, how do you discern motive from the appeal? 

    Font size? Does their use of bold text reveal the hidden motive? 

  4. I find it remarkable how little faith you have in the judicial process. Instead of allowing both positions to be argued before the courts, you would insist that your view be promoted by both sides. How terrible it might be if the court told you that your ideas were wrong.

    If Obama’s campaign promises mean anything at all, they do not mean that he will back down from any actual test of his legal theories in court. A real change in administration would occur if Obama changed the procedures in place in Bagram, not the process in place in the DC Circuit. If there are prisoners who are being held without evidence, the administration should release them now on its own, not pass the buck to some Habeas proceeding. Ideologically driven narrow-minded lawyers may debate whether the administration should spend six months developing a new legal strategy in litigation. The rest of us would rather they spend six months deciding who to release and what process should be invoked to decide who to keep. If at the end of the period they have spent so much time thinking about Bagram that they forgot to consider Judge Bates, then I will say it was time well spent. If all they do is to draft a different appeals brief, then it was time wasted.

  5. Hey Kevin – Having read the Bagram brief again, I feel comfortable sticking with my earlier assessment. So we’ll have to leave it to readers to read for themselves and judge. Either way, time will tell.  As for the validity, vel non, of what you say is Glenn’s general point (that Obama supporters are now emphasizing issues of personality and process over substance), I’d hardly venture to speak for all Obama supporters – particularly as I’ve nowhere near the sense of the blogosphere that Glenn does.  Regardless, it also strikes me as possible that folks who might generally support Obama may be holding their fire on detainee-related issues not because they’re disappointed with some sense of a result so far, but because the issues that remain (not all, but many) are complex, and they’re not sure themselves. Who knows. Finally, as for my own view of the substance, I confess I follow the wiretapping issues rather less closely than the detention issues. That said, as I recall Obama had embraced telecom immunity during the campaign, so I’d hardly think positions consistent with that view should come as a surprise. I tend to think the early positions taken by the new adminstration on state secrets are overly broad, though I also note the AG has been sending signals that things there may yet evolve.  As for Glenn’s comments on the squib of the brief you reproduce above, I gotta say my quick read of the brief is that it doesn’t come anywhere close to arguing that “no court has the power to order that classified documents be used in a judicial proceeding,” as Glenn says.  Again, I haven’t followed this case as closely as others, but this brief appears to have been filed in response to a specific order by the court demanding (1) that the administration outline what it plans to do to comply with an earlier court order, and (2) that the administration to respond to recent arguments made by the plaintiffs in the case. The brief answers Q1 (it has expedited counsel clearances), and asks to be informed what specifically the court thinks it needs to do to come into compliance with the earlier order (and repeatedly begs for a stay to do so). In responding to Q2, the brief offers the administration’s interpretation of a particular earlier executive order, a federal statute, and the general “supervisory authority” of the court. Based on what I know about the statute and the courts’ general supervisory authority, I’d say its arguments there sound plausible or better (again, haven’t read the oppo brief). I can’t tell what to think about its read of the executive order, and am not at all sure I buy it. But the position is plainly limited to that EO – not to all classified information in all cases before any court anywhere for any reason.  So what I am clear on: Glenn’s assessment of the brief needs to be taken w/a sizable grain of salt.

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