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Print This PageBenjamin Wittes on Detention Policy
Ben Wittes, who has guest-blogged with OJ in the past, has a blistering op-ed in yesterday’s Washington Post, criticizing, well, just about everyone for the failure to take the policy issues of detention to Congress to craft a formal structure for addressing them. The piece has made the rounds in the blogosphere, so I won’t comment except to say that I agree. A snippet:
President Obama’s decision not to go to Congress for help in establishing reasonable standards for the continued detention of Guantanamo detainees is a failure of leadership in the project of putting American law on a sound basis for a long-term confrontation with terrorism. It is bad for the country, for national security and for civil liberties. It represents a virtually wholesale adoption of the failed policies of his predecessor — who, with equal obtuseness, refused to root American detention practices in clear law approved by the legislature and similarly failed to learn from repeated Supreme Court rebukes to this unilateral approach. It violates Obama’s much-noted statement this spring that he would “work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.” And it delegates a profound and difficult policymaking exercise to the judiciary and, ultimately, to a single man on the Supreme Court.
The only point in Obama’s defense is that few political actors have given him reason to think he would have responsible partners if he did the right thing. Human rights and civil liberties activists are so keen to avoid legitimizing detention in legislation that they have treated as a victory the president’s decision to adopt the very policy they have spent the past eight years denouncing.
Congress is not looking statesmanlike either. Republicans have been too busy making political hay out of Obama’s sputtering closure of Guantanamo to act as constructive participants in this important legislative project. Democrats, always afraid of their shadows on national security issues, have hidden behind civil liberties platitudes that most do not really believe. Members across the spectrum have acted boldly only when it comes to making sure that no Guantanamo detainees end up in their districts.
But it is Obama who is president, and presidents go to war with the Congress and civil society they have, not the Congress and civil society they wish they had.
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Kenneth,
With all due respect, I think Ben’s critique and your concurrence with it are somewhat short-sighted. (I take no position on your linked article at this time.) The U.S. has detained congressionally designated public enemies for its entire existence without express congressional authority. The President is acting – in a broad sense – within the authority of the AUMF.
Thus far, the post-Boumediene habeas cases I have seen resulted in the courts permitting detentions only when authorized by the AUMF and international laws governing war. Though I think they take too narrow a view of such detentions, I think this may be in part due to the government’s failure to clearly articulate the possible potential bases for them. Any congressional authorization, by virtue of the later-in-time rule, would require no such compliance.
In response to these decisions, I suspect, the executive adopted new detention standards for the Bagram Theater Internment Facility this summer. They contain (from what I have seen in the unclassified version) greater procedural safeguards regarding both initial and continued detention. While I think they may be overbroad or imprecise in terms of who may be detained, they are at least based in the laws of war.
If the law of war paradigm and associated indefinite detention is inappropriate, then Congress must repeal the AUMF. From a U.S. constitutional law perspective, this is all the authority the President needs to exercise war powers – meaning any acts permitted by military necessity and the laws governing war. These powers include indefinite detention of those subject to such detention under these laws (see Hamdi).
It is likely that the President and his legal advisors now fully recognize the potential future implications of asking Congress to give express authorization for something that is already impliedly authorized. I humbly suggest that focusing on the accuracy of the executive’s detention standards or the propriety of maintaing the AUMF in force is a better course. At the very least, it would lessen the risk of unnecessarily tying the executive’s hands in future armed conflicts.
Best to all,
John
at 9:21 pm EST John C. Dehn