Law-Constitutional law/executive power

I previously wrote about Kiyemba v. Obama, a case that the Supreme Court eventually accepted for review this term. The case before addresses the question of whether a federal judge can order the release into the U.S. of Guantanamo detainees who have been found to be improperly detained, when the President has not been able to find a country that will take them, but where Congress and the President have prohibited their entry into the U.S.

Yesterday, the Supreme Court dodged the issue. They determined that most of those detainees now have received at least one offer of resettlement. Once those detainees are released, their cases would be moot. There are five, however, who have received two offers each and have rejected them. While the latter cases are not moot, the Court has sent them back to the lower courts to determine whether those circumstances affect the legal issues presented. After all, if the detainees rejected those offers, they placed themselves in the position of continuing detention at Guantanamo. It is no longer the issue, as their petition to the Supreme Court had put it, that “the Executive detention is indefinite and without authorization in law, and release into the United States is the only possible effective remedy.”

I see this as a way for the Court to continue to avoid or at least to drag out the time before a possible confrontation with the President (and, potentially, Congress) on a matter of national security that goes to the heart of the long-accepted core power of the political branches to exclude aliens from the sovereign territory of the U.S., a power that is a universal attribute of national sovereignty. This is not a battle the Court wants to fight, and they are going to twist and turn to avoid it. Even if the lower courts conclude that nothing has changed, and the Supreme Court’s per curiam opinion clearly implies that it has, the Court is buying time by suggesting that the case may have to start anew in the District Court.

American and Pakistani intelligence operatives have captured the Taliban’s second-in-command in Pakistan. On one level, this is a noteworthy catch, as it may lead Americans closer to Mullah Omar, the Taliban head. It also signifies at least a degree of cooperation, for now, between the U.S. and the dodgy allies in the Pakistani intelligence apparatus. He is described as the most amenable of the Taliban to talking with the Afghani government. Maybe that’s why they brought him in, to “persuade” him to cooperate more productively.

On the other hand, the Americans have not taken control here. That might have to do with concerns about Pakistani sovereignty.  But it might also have to do with the interrogation policies of the administration. Better to let the Pakistanis retain custody and do the heavy lifting, unconstrained by Miranda considerations. That, of course, also raises questions about the effectiveness of the questioning of the Christmas Day Crotchbomber and about the wisdom of the Holder Justice Department’s decision to Mirandize the guy.

It might also have to do with the Supreme Court’s foolish Boumediene decision in 2008 regarding the courts’ use of the writ of habeas corpus to free non-Americans captured abroad and held outside the sovereign territory of the U.S. As many, including yours truly, have argued, such decisions just make it more likely that a serious administration will find ways to make the process more opaque by having foreign entities do the dirty work, with minimal American involvement in the process. Of course, that just makes harsh interrogations more likely and the collection of intelligence useful for the U.S. more difficult. The cost is raised, and the benefit is lowered. Not a good trade-off.

In similar vein, the Obama administration is shunning captures in favor of targeted killings of terrorists. Of course, this risks losing potentially valuable intelligence, as some officials grumble. And it was entirely predictable as, once more, many, including yours truly, have said for a long time. What can one expect when the courts and the transnational “human rights” elite interject themselves into these shadowy national security and anti-terrorism decisions? And when the administration’s reflexive leftism that urges them to kowtow to those same transnational elites crashes into the conservative reality of the facts of life? Closing Gitmo and CIA facilities abroad has deprived the U.S. of a necessary link in effective intelligence gathering that requires secure detention facilities for some period of interrogation.

Last Friday was the 201st anniversary of President Abraham Lincoln’s birthday. Technically, we no longer have a national holiday for his or George Washington’s birthday on February 22. Instead, we have a certain Monday set aside for President’s Day, a more generic and vague designation that has the advantage of producing a regular three-day weekend pleasing to the ski industry. Actual named official holidays are reserved for what must be more important individuals in American history who must have contributed far more to the very existence of the United States. People such as Martin Luther King and, in California, Cesar Chavez. If you do not think that they are worthier of recognition than Washington and Lincoln, rest assured that no, I don’t think so, either. But those are politically-correct holidays designed for various identity groups and don’t involve the DWEMs (Dead White European Males) so despised among “right-thinking” elites. Rather, they involve Non-White Non-European Males, Dead or otherwise, a group whose comparatively far greater worthiness for official recognition than the DWEMs is exceeded only by their female counterparts.

Anyway, I digress. With polls showing that the bloom is off the Obama rose, to put it mildly, one recalls that not long ago it was common for the media pundits and journalists, academicians from many disciplines, and other besotted disciples of the one who proclaimed the cryptic but resonant message that “We are the change that we have been waiting for,” to compare their champion to Abraham Lincoln. Both from Illinois, both lawyers, both served in Congress, both…had two arms, legs, eyes and ears? This before The One had done anything other than declare that the Guantanamo detention center would be closed, enhanced interrogation techniques would be emotionally labelled “torture” and discontinued, and officials from the previous administration at upper levels might be investigated. For that, presumably, he was nominated for the Nobel Peace Prize but 10 days after taking office, an act of insane lack of judgment and proportion as bizarre as the comparisons to Lincoln.

So, I thought that it might be fitting to compare the national security policies of Mr. Obama with those of Honest Abe. By the way, that nickname for the old railsplitter should have been a dead give-away that Lincoln was not like an off-the-rack Chicago pol. Now, Mr. Obama famously has not succeeded in the three promises he made. But that is not due to lack of trying. Instead, Mr. Obama’s failures are due, in order, to the conservative reality of the facts of life regarding detention of terrorists, to the reaction of the American public to the administration’s botched interrogation of the Christmas Day Crotchbomber plot, and the schooling that Mr. Obama got when he unwisely decided to tangle with former Vice-President Dick Cheney on the matter of national security.

It is fruitful, then, in Mr. Lincoln’s memory to connect to some of his robust assertions of executive power in the national interest. This is Lincoln’s war message to Congress on July 4, 1861. For an even stronger and more unabashed defense of real politik based on presidential discretion in the pursuit of national security, there is Lincoln’s letter to Erastus Corning and other Copperhead Democrats in 1863. Even the possibility of the incumbent in the White House or his Attorney General, recruited from a law firm that has made it a significant part of its image to the American bar to represent Guantanamo detainees, writing such a letter seems preposterous and fantastical.

The Obama administration campaigned on a pledge to be the most transparent administration ever. They promised political accountability and an change from the politicization of personnel decisions and the administration of justice of which they accused the Bush administration. The media and other Obama supporters were much taken in by the charade. As anyone who has been an adult for more than one presidential administration knows, such pledges have all the value of marriage vows in Hollywood. President Obama administration has not disappointed on that account. Or, at least, he hasn’t disappointed those of us who remembered the Chicago origins of the Obama administration.

One practice of the Bush administration at which liberals were aghast was the assertion of “executive privilege” to withhold information from Congress. Executive privilege is not expressly found in the Constitution. But it is implied from the broader structure of separation of powers in the Constitution as delineated in a combination of text and practice. The Supreme Court agreed with this constitutional foundation for executive privilege in the 1974 case of United States v. [President] Nixon. Although the particulars have changed and the extent and frequency of the claims have become bolder, executive privilege to withhold information from Congress and the courts has been asserted by almost every President, beginning with George Washington. Liberals certainly had little enthusiasm to complain when Bill Clinton’s underlings asserted executive privilege during investigations by the Republican Congress.

Executive privilege is justified on different grounds and policies. Regarding specific claims of national security, the concern is that the information cannot be disclosed without harm to the nation. Perforce, this requires the President to have a great deal of leeway to make that determination, and his judgment is entitled to absolute or near-absolute deference, as he has the most complete access to information and the advice of trained experts that the other branches lack. The more general ground of need of confidentiality of communications between the President and his subordinates may be overridden by federal courts in certain criminal law cases, but, even there, the President’s determination is entitled to great respect. Indeed, if the information is sought by Congress, the President’s refusal to supply the information may be judicially unreviewable, for reasons both theoretical (lack of a “justiciable” question) and practical (difficulty of enforcement of the demand for information). Any Congressional recourse or retaliation is political.

However, the privilege is an affront to the transparency and openness of government seen as necessary to a republic, particularly when only a general need for executive confidentiality and frankness of intra-departmental communication is proffered. Hence, the practice is that the privilege is to be asserted by the President, not by some underling acting on his or her own. The Supreme Court has extended that privilege to the Vice-President, as well. He, too, is a constitutional officer whose authority is independently fixed. He is not merely a political minion of the President.

Placing the power to assert executive privilege in the hands of only such constitutional officers limits the frequency and advances the accountability and consistency of the privilege’s use. One of the constitutional innovations of the Clinton administration was to have underlings assert the executive privilege without direct order from the president, who, then, retained plausible deniability and deflected accountability. Congress might be in an uproar, but there really was little they could do, at least judicially. Still, executive privilege is supposed to be used against serious intrusions by the other branches into sensitive and substantively significant deliberations within the executive branch and for matters of national interest and security.

Now comes word that the Obama administration is planning to assert executive privilege to prevent that pillar of presidential power, the White House social secretary, from testifying before Congress about “Gate-crashing-gate.” This smacks of the same extreme bunker mentality and paranoia exhibited by President Richard Nixon and by the Clinton administration in Hillary’s “Filegate.” But it well symbolizes the secretive and defensive Barack Obama. And, needless to say, he will get away with that, not the least for the reason that the liberal former watchdogs in Congress who were so eager to sound the alarm whenever the Bush administration sought to prevent the publication of national secrets by The New York Times and Senator Jay Rockefeller, are themselves now the majority seeking to silence Republican attempts to obtain the testimony.

But, still, the point has been scored against the administration and its claim of openness and accountability: Expending political credibility on executive privilege to keep the White House social secretary silent?

Senator Lindsay Graham of South Carolina is not on my list of favorite Republicans. His record, on the whole, portrays a distinct lack of principles and of a thought-through intellectual framework. Politicians are politicians, and one cannot expect ideological purity. Nor is ideological purity necessarily good, when the ideological prism by which one can guide one’s analysis turns into an ideological prison that stifles the flexibility that is often needed to address real world problems. There are politicians who can strike just the right balance in substance and tone to avoid appearing too “political.” Graham cannot do that. He exudes a certain smarminess that is offputting, and, fairly or not, makes him appear unprincipled.

That said, he usually votes positions that I favor. More important, on occasion he shines. His cross-examination of Sonia Sotomayor was excellent. The following video is even better. Graham, a former member of the JAG, absolutely dismantles Attorney General Eric Holder’s decision to try Khalid Sheikh Mohammed in the civilian federal court. Holder comes across as ignorant and ill-prepared. At best. Holder, more than any critics, or even Graham himself, demonstrates that there is no legal basis, and certainly no legal necessity, for that decision.

If the trials of the 1993 World Trade Center bombers and of the “20th 9/11 hijacker,” Zacarias Moussaoui are any indication, the federal court trial wii be a propaganda circus for Khalid Sheikh Mohammed and his co-defendants, abetted by what likely will be ideologically sympathetic lawyers. While at Guantanamolast year, KSM demanded to plead guilty to the military commission, be sentenced to death, and executed. Taking him at his word, and assuming that the government is confident of its evidence, KSM is guilty and will be sentenced to death, anyway. What has he to losebut to turn the trial into a political spectacle that will bolster the morale of al Qaeda supporters and other terrorists and serve as a useful recruiting tool for future jihadists?

I have never understood the liberal argument that keeping detainees at Guantanamo and having terrorists tried by duly constituted military commissions according to formalrules of evidence causes otherwise peaceable and rational Muslims from around the world to flock to the jihadist cause. Jihadists’ reliance on suicide attacks and other terrorist tactics, and their extreme brutality towards captives, does not indicate the presence of particularly rational minds and placid personalities. I would be most surprised that true jihadists, and not the Western liberal reification of such, care one whit about Guantanamo and military commissions, except maybe in a completely different manner from that imagined by the liberal mind. Guantanamo offers amenities that many jihadists can only dream of enjoying in their own countries. The conditions of confinement at Gitmo, and the trial by American military courts trying to prove their bona fides as impartialjudicial tribunals, are far more humane than what those jihadists would find if imprisoned and tried in their own countries for the results of their violent proclivities. After all, if they weren’t fighting the American “crusaders,” they’d be busy killing their fellow Muslims while fighting the Egyptians, the Pakistanis, the Saudis, the Syrians, etc.

If, however, and this is a big “if,” jihadists are at all influenced by the fate of the Guantanamo detainees in the manner that liberals believe, they will be at least equally influenced by fate of their fellows kept in the Metropolitan Detention Center (the harsh conditions of confinement at which already were the subject of an attempted money damage action by one Maher Arar), tried under heavy guard in what will become a fortress-like massive federalcourthouse with the defendants paraded around in prison garb and shackles, and eventually executed or sent to an isolated supermax prison. TheseIslamic holy warriors, as they see themselves, don’t care about the details of American criminal procedure and constitutional law. The visuals for the proposed process are more likely to inflame passions and serve as recruiting tools than anything that would have come out of Guantanamo.

The shift of the trial looks more to have something to do with placating the rabid Left base of the administration and the conference-and-cocktail-party-attending transnational legal and “human rights” elite with which the administration feels such affinity. The morally and economically corrupt United Nations bureaucracy and the kleptocratic elites back home that they represent will approve of this as a sign of American docility in the face of foreign criticism. These elites can engage in such a minuet of stylized moral posturing and be awed by their own importance. The more practical-minded jihadists will be less impressed.

Speaking of a political dimension to this decision. There has already been musing, by myself and others, that this represents a conscious and reprehensible way for the Obama administration to bring to light the details of the difficult decisions the Bush administration had to make about capture, interrogation, detention, and trial of these terrorists and other enemies in the difficult months after 9/11. Despite its veiled threats in the late Spring to go after CIA personnel, the administration does not dare go after Bush administration officials directly, lest Obama, Holder, and company produce a political civil war in this country and seal their electoral fate. Nor will the American public turn against the Bush administration if KSM, his cohorts, and their lawyers make an issue of waterboarding. None of those parties are sympathetic victims and any political spectacle in the courtroom will only remind Americans just what kind of repellent creatures they are. If anything, the Obama administration will come off second-best.

But by opening this up to the sure attempts by the terrorists’ lawyers to make as much of this information public as they can and to turn the proceedings into a political and media trial of U.S. post-9/11 policy and of Bush administration personnel, the Obama administration thinks it can achieve the same result while avoiding political accountability. Then, when the information is released, they will count on the transnational legal Left and their allies in various European judiciaries to “try” various American officials for “human rights abuses” in absentia in kangaroo “trials.” Defending the U.S. against terrorists will, per se, be evidence of such abuses, with the object of weakening American resolve in the future.

That tactic is part of the payoff to keep the increasingly restive loony Left in Obama’s coalition quiescent, a Left that has little to show for its enthusiasm for what they saw as the Community organizer-in-Chief. But it carries some risk. Indeed, the legal and political risks for the administration in this move are considerable. There are so many things that can go wrong, from a physical attack to a legal acquittal to political reaction against disclosure of sensitive evidence that this is more likely to underscore the fecklessness of Democrats on national security matters than to erase doubts. By making this announcement so close to the terrorist attack at Fort Hood, the administration does not instill confidence that its political tonedeafness is not a symptom of a greater incompetence.

Andy McCarthy at “The Corner” on National Review Online agrees and provides further detail about the political dimension of the administration’s decision.

Word has come from the Obama administration that Khalid Sheikh Mohammed and four other Islamic terrorists will be tried in federal court in New York. Predictably, the ACLU and many other left-liberal individuals and organizations have applauded the decision, while many conservatives have denounced it.

I see the decision as highly problematic in a number of ways, but not ultimately as disastrous or threatening. There are several issues here: The evidence to be used at the trial; the security of the facility and any facility to which the terrorists will be transferred later; threats to the prosecutors, witnesses, jurors, and judge; the likelihood of suitable punishment; what to do with any that are found not guilty; the use of the trial by the defendants as a political tool; the use of the proceeding by the administration for self-serving political purposes rather than a means to justice; what kind of precedent is set by the use of this procedure for other cases.

One of the most complex issues is the use of evidence. One problem is that the rules of evidence in federal court are in some instances different from the rules for evidence that can be used in front of the military commissions. Following the 2008 Boumediene decision, lower federal courts are working out constitutional tests for the introduction of evidence in habeas corpus cases and, by implication, for military commissions. However, those cases involve the issue of detention and status as enemy combatants, not the more “criminal” matter of trying such people for the unlawful nature of their conduct. Still there are somewhat more relaxed evidentiary rules under the Military Commissions Act that can be used in the military tribunals, but that cannot be used in the regular civilian courts. Some of the evidence may have been gathered in combat conditions or by foreign governments that do not observe the niceties of American law enforcement. On the plus side, evidence gathered by foreign sources overseas is not subject to constitutional search and seaizure restrictions of the Fourth Amendment. Other evidence that will be used may be the result of waterboarding and other “enhanced interrogation techniques,” some of which procedures will be presented as “torture.” The admission of such evidence is easier in the military commissions than the civil courts. That evidence is likely to be challenged strongly. Some of the evidence may be national security-related. It is possible that such evidence can be turned over to the defendants under various protective restrictions or introduced in court by closing the trial or at least conducting the examination out of the courtroom in camera. However, there are limits to the extent this can be done. Defendants will demand access to records and witnesses some of which ar least will not escape the public eye. The military commissions can better protect against defense abuses of this process.

Keeping all of that in mind, one has to assume for the moment that the administration is well aware of these problems and has selected these defendants for trial because they have plenty of other evidence for a conviction. On the other side, that still may not prevent defendants’ fishing expeditions and demands for more problematic evidence. That is especially so, as the defense attorneys that will flock to defend the terrorists in order to make names for themselves will be especially eager to see these defendants walk and to score ideological points against the United States and, especially, against the Bush administration.

A related problem is whether the lawyers themselves will be security threats. When the suspects for the 1993 World Trade Center bombing were tried in federal district court, Lynne Stewart (one of the attorneys for the “blind sheikh”) conspired to allow the transfer of information from her client to other suspected terrorists> She was convicted and disbarred, though she is appealing the conviction. By the way, information turned over to the attorneys for the defendants in that bombing trial included lists of people the government was watching. Among those listed was Osama bin Laden, who, if he didn’t know it before, was then on notice that he was being watched. There is serious danger that the information that comes out during this process will provide enemy nations and other terrorists with valuable intelligence.

There are also concerns about the security of the detention facility, the courthouse, and any facility to which they will be transferred. That is a legitimate concern. I would think that the government will secure these facilities adequately to keep the terrorists confined, but that does not mean that the facilities might not still be targets for terrorist action. Using the facilities at Guantanamo, including the new but unused courtroom there, would provide security that the federal civilian facilities cannot achieve. That, after all, was the point of using Guantanamo.

Threats to prosecutors, witnesses, jurors, and the judge will be real and concrete issues that would not exist were the proceedings held before a Guantanamo military commission. The identities of these people will be known. They will be likely targets. So, if one is looking at procedural matters and security issues, the military commission process is much preferable, as the administration has admitted in holding some of the Guantanamo detainees to be tried by military commissions there.

While the move of these trials from the military to the civilian system is problematic from the perspective of the presentation of evidence and protection of national security and of the participants, I am not worried that the federal court process will result in less likelihood of conviction or a lesser imposition of punishment. Assuming there are no evidentiary problems (and, as I wrote, there might be), a civilian jury in New York is very unlikely to acquit these defendants, though, depending on the charges, there might be acquittals of some of the defendants on some of the charges. Khalid Sheikh Mohammed will be convicted of the most severe counts. Both the jury and the judge will also seek to show their toughness and sentence him, and perhaps some others, to death. The military commissions, on the other hand, will bend over backwards to avoid harshness. There hasn’t been a death penalty imposed by a military court in almost a half century, though one suspects that KSM would end that streak.

If any of the defendants were acquitted, what to do with them would be a serious problem. One of the perceived advantages of Guantanamo, from the Bush administration’s point of view, was that the base was geographically close for purposes of secure control over the detainees, but also isolated from the general citizenry and, to prevent full application of constitutional rights to these detainees, outside the sovereignty of the U.S. As long as the detainees are at Guantanamo, outside the general territorial sovereignty of the United States, there is a strong argument that they can be kept there pending return to another country. They have no right to enter the U.S. Of course, if they are to be detained there as enemy combatants until the cessation of hostilities, that, too, can be done. But once they are brought into the U.S., they have greater rights before they can be removed to another country. Moreover, if they are to be detained further as simple enemy combatants, not criminals, they might have greater rights to be detained in the U.S. itself rather than returned to Guantanamo. And, if no other country is willing to take them, must they then be released into the U.S.? While there are no one hundred percent clear answers to those questions, the more someone, even an alien, has been given access to the U.S., the greater claim he has to at least some constitutional protections that his lawyer is sure to press.

Allahpundit at Hot Air has a good discussion of these points. He makes the argument that the trial’s outcome, oddly, may be a foregone conclusion. It will be almost impossible to get a fair trial for the terrorists in the commonly-accepted view of that term. Whatever happens in the courtroom, the administration cannot afford politically to let KSM go, so they will find some reason to incarcerate him. One option: Send him to Pakistan for trial about his activities there. But this makes a farce of the administration’s claim that a federal court trial is more consistent with the rule of law, and it makes the trial itself a sham.

In another post, I’m going to address the more political issues from this move.

Many others have expressed their thoughts; Sarah Palin worries about a failure to convict KSM. I disagree with that one. Former federal district court judge and George W. Bush Attorney General Michael Mukasey worries about the danger from the disclosure of evidence and about the September 10 attitude displayed by treating KSM as an ordinary criminal. I think that is part of what Obama is trying to do to placate the Left. Mukasey also worries about the ability to house convicted high-profile terrorists in American prisons without having them become focal points of attention with the chance to do mischief among the prison population. Mukasey: “It would take a whole lot more credulousness than I have available to be optimistic about the outcome of this latest experiment.” Professor John Yoo makes some salient observations about the terrorists’ likely strategy to demand information and tie up the courts by turning this into a political circus. Like Judge Mukasey, he believes that this can provide al Qaeda with extremely useful intelligence and hurt future American intelligence gathering and military operations. I agree with Yoo that these are the biggest dangers.

Via Hot Air, former New York mayor Rudy Giuliani tees off on the Obama administration’s decision.

Andy McCarthy was a federal prosecutor who prosecuted the 1993 World Trade Center bomber. In his book about that bombing, he describes how the terrorists, who hated everything about the United States, loved the criminal justice system. As they planned their attack, they knew how to exploit that system:

“Choosing America as an enemy was not, however, without its advantages.  Amir Abdelgani advised his confederates that, if arrested, ‘Nobody talk until seeing his lawyer.’ 

‘You understand,’ Siddig echoed.  ‘Tell them, “I don’t know.  I’m not talking to you.  Bring my lawyer.”  Never talk to them.  Not a word. “My lawyer”—that’s it!  That’s what’s so beautiful about America.’”

In similar vein, when Khalid Sheikh Mohammed was captured in Pakistan and turned over to the Americans, he refused to talk. Rather, his immediate demand is said to have been to take him to New York, as he wanted to talk to his lawyer. Courtesy of Eric Holder and Barack Obama, he has got his wish.

This is the case that hasn’t happened, the judicial dog that hasn’t barked. It involves the fate of (at last count) up to 13 Uighurs held at Guantanamo Bay. They were captured and turned over to American forces after fleeing from a terrorist training camp in Afghanistan’s Tora Bora Mountains to Pakistan. Hearings before Combatant Status Review Tribunals established that these detainees were members of a terrorist group affiliated with al Qaeda or the Taliban. But a federal district court determined in Parhat v. Gates in 2008 that there was insufficient evidence of such affiliation and, that, in any case, there was not sufficient evidence they had engaged in hostilities against the U.S. In effect, then, though they might be violent separatists who had received terrorist training, they weren’t our enemies, but China’s. They were good terrorists, not the bad kind that the President can detain.

The court ordered them released. While the obvious result of that order would be to return the Uighurs to China, the Uighurs were less than pleased with that option, fearing arrest, torture Chinese-style, and execution as, well, the terrorists that they are. Since it is U.S. policy not to transfer individuals to countries where they will face torture, the government has sought to place them with other countries. As I have posted before, some have been placed with Palau and with Bermuda. But at least one, and possible six others, have no country that has accepted them. Both agreements have precipitated political tensions, complicating further efforts in that direction. Other countries quite understandably are leery of Chinese demands that these people be repatriated to China. They also wonder why the U.S. doesn’t just release them within its own territory, if they are so harmless.

As other such “good” terrorists, the Uighurs prefer to remain at Guantanamo over being returned to China. But most they want to be released into the U.S., which the district judge ordered. He claimed that the remedy was exceptional and needed to be imposed to protect the Uighurs from “unbridled executive fiat” even though they had made no attempt to comply with the immigration laws. No word from the judge about needing to protect the American people from unbridled judicial fiat that ignored the immigration laws and the admitted exclusive authority of the political branches to determine the admission of aliens into the country.

The Court of Appeals quickly stayed the order and, on February 18, 2009, reversed the district court. In June of this year, Congress passed a law that severely restricts the President’s power to resettle Guantanamo detainees within the U.S. (or anywhere else), a law that itself presents interesting separation of powers issues. One of the delicious ironies of the case is that liberal critics of unilateral executive power are suddenly discovering its constitutional virtues along with a new-found skepticism about Congressional actions, such as this law, that “complicate” President Obama’s efforts regarding Guantanamo detainees. As is so drearily predictable, political preferences trump constitutional principles.

The appellate court reversed the district court with a rather resounding endorsement of the power of the political branches and of the President, in particular. However, the court expressly declined to opine about the President’s power to ignore the immigration laws and to release people into the U.S. without Congressional consent. That issue would present a more complex question under constitutional separation of powers within the Youngstown Sheet and Tube Co. v. Sawyer (1952) analysis, Justice Jackson, concurring. The court criticized the district court’s ambiguous reasoning, noting that the lower court cited no treaty or statute, and did not go beyond constitutional generalizations, such as reference to some undefined “constitutional imperative.” The appellate court concluded that the district court, though not specifying it, may have considered this to be a due process issue under the Fifth Amendment.

The district court apparently also relied on the maxim that, where there is a right, there is a remedy. This is a “principle” often resorted to by courts when they want to reach a certain result, or when they want to decorate some conclusion with a high-sounding phrase, particularly in Latin (”ubi jus, ubi remedium”). Chief Justice Marshall in Marbury v. Madison made this one of the steps in his process of reasoning to an interim conclusion that Marbury had a right to the requested writ of mandamus. But the court of appeals rightly rejected that maxim and pointed out that, for example, sovereign immunity and the non-justiciable political questions doctrine can defeat it.

The appellate court noted the ancient principle, long accepted by the United States since the Philadelphia Convention, that a nation has the inherent right to exclude or admit foreigners and to prescribe the terms of admission. The Supreme Court has recognized that inherent authority, and the exclusive power of the political branches to exercise it, for well over a century in case after case, beginning with the Chinese Exclusion Case in 1889. As Justice Frankfurter declared in his concurring opinion in Harisiades v. Shaughnessy  in 1952, quoted by the court, “Ever since national states have come into being, the right of the people to enjoy the hospitality of a State of which they are not citizens has been a matter of political determination of each State [and] wholly outside the concern and competence of the Judiciary.”

Nor does the district court’s invocation of some variant of constitutional rights alter the analysis. The appellate court cited to Shaughnessy v. United States, ex rel. Mezei (1953), in which an alien was denied entry into the U.S. as ineligible under the immigration laws and held at Ellis Island, New York. No other country would take him, and the prospect of indefinite detention loomed. Rejecting Mezei’s petition for a writ of habeas corpus, the Supreme Court determined that Mezei had not been deprived of a constitutional right. The prospect of indefinite detention did not empower the courts to order Mezei’s release into the U.S. The principle that aliens outside the U.S. do not enjoy constitutional rights was endorsed by the Supreme Court in numerous other cases, of both older and younger vintages.

The appellate court was equally unpersuaded by an “equity” argument, that the Uighurs deserved to be admitted into the U.S. because they had been held so long at Guantanamo. The court observed tartly that habeas corpus is not “compensatory.” The Uighurs have been released from their “detention”; they just have not found a place (other, one supposes, than China) to go. 

The Uighurs also argued that the fact of habeas corpus jurisdiction always gives the courts the power to order the prisoner’s release from unlawful detention. The court noted that the Uighurs asserted that “the Executive has cited no decision in which a federal court has withheld a remedy from a civilian held in a military prison indefinitely, and without charge, when that civilian is within its jurisdiction and enjoys the constitutional privilege of habeas corpus.” The appeals court neatly turned that argument against the Uighurs: “But petitioners seek an extraordinary remedy. We therefore think it more significant that petitioners have cited no case in which a federal court ordered the Executive to bring an alien into the United States and to release him here, when the alien was held outside our sovereign territory and had not even applied for admission under the immigration laws.” The only cases where the Supreme Court upheld even temporary release by courts of aliens into the U.S. were based on federal statutes and involved aliens held inside the U.S. (which also were accorded minimal due process rights). It is likely, incidentally, that the Uighurs would not qualify for admission under the immigration laws.

That, of course, raises the question whether the Supreme Court’s case in Boumediene v. Bush meant that the Guantanamo Naval Base in Cuba was under the sovereignty of the U.S. Even though the Court in that case recognized that the U.S. had sufficient control to constitute de facto sovereignty over the territory for the purpose of applying the writ of habeas corpus to the area, the Court did not hold that the area constituted sovereign territory of the U.S., open to habitation by the general population of the U.S. Indeed, the Boumediene court agreed that it had never extended any constitutional rights to aliens detained outside the U.S. and specifically limited its holding to the Suspension Clause.

Leaving aside the Boumediene court’s dubious constitutional history regarding the writ of habeas corpus, the writ is a matter of separation of powers and involves a court’s ability to order release for unlawful detention, among which might be unlawfulness due to violation of constitutional rights. But that is not the full extent of “unlawfulness.” An alien might be ordered released due to unlawfulness for other reasons (e.g., statutory or treaty-based rights, including those found in applicable provisions of the Geneva Conventions and made a part of domestic law). Therefore, the existence of the remedy of the writ of habeas corpus does not suppose the existence of constitutional rights, either a priori or a fortiori, extraneous to the writ itself. Nor does the power to order their release from detention allow the courts to release them in whatever way they or the applicant desire.

Senior Judge Randolph’s opinion was singularly unimpressed by Judge Rogers’s concurrence. Judge Rogers read the executive’s power more narrowly and the judiciary’s power more broadly than did the court. Under her interpretation, only Congress could authorize the executive to refuse to admit aliens into the U.S. Whatever the validity of that rather crabbed reading of the President’s power to refuse admission to aliens under his executive power or as commander-in-chief, Congress’s June, 2009, statute that not only permits him to refuse admission to the Uighurs, but fairly commands him to do so, should assuage Judge Rogers’s separation of powers concerns in that regard.

It is difficult to predict what Justice Kennedy, er, I mean the Supreme Court, will do, if it ever takes the case. The Court failed to take it up at three separate conferences, probably hoping that the President’s efforts to resettle the Uighurs through diplomatic channels bear fruit and make the matter moot. However, that may be a fruitless strategy, in light of other Guantanamo detainees’ likely challenges to decisions by the President to release them to countries they do not want. At some point the executive power to determine the release of aliens held outside the U.S. will need to be addressed.

Given that the Court took the case and has held on to it, I would not expect the Court to punt on the issue and hold that the matter is a non-justiciable political question. That also is not the manner in which the Court has addressed other cases in this area. The Court might take Judge Rogers’s position that the Uighurs have constitutional rights. Given the Court’s recent adventurism in this area regarding habeas corpus rights of aliens at Guantanamo, and the Court’s demonstrated willingness in Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008) to disregard or at least distort longstanding precedent and long-understood constitutional separation of powers doctrine, it is well within the realm of possibility that Justice Kennedy will be swayed by some sentimental constitutionalism. Even the two-year increment of constitutional creationism by the Court lines up for the Uighurs. Also encouraging for the Uighurs must be the fairly high rate of reversal of lower courts when the Court grants a writ of certiorari where there is no split between circuits. If they have such constitutional rights, the remedy is to be released effectively, that is, into the U.S. until an alternative is found for them, if ever.

On the other hand, the “Rule of Four” for granting such writs of certiorari means that the lower court might be upheld, if only 5-4. And these are 5-4 cases, whichever the decision. I think the Court would be very reluctant to order the President to release aliens into the United States that the President deems dangerous. Not only is there no constitutional precedent for that, but Congress has now weighed in against it. Were the Court to do that anyway, there would be enormous political blowback. And, Heaven forbid any of the Uighurs should be found to participate in any successful plot later. More immediately, every detainee would seek to litigate his repatriation and demand that he be admitted to the U.S.

There are three ways the Court could proceed, if the justices do not want to inject the courts into this process. Most obvious, the Court might well decline to address for this issue whether the Uighurs have any constitutional rights, thereby leaving for the future whether people released from Guantanamo might be able to sue American officials for damages for deprivation of constitutional rights. It isn’t truly necessary to decide this point. The Court could simply declare that, whatever the claim of constitutional rights, the Uighurs have a right to be released, but not a right to be released to a particular place without executive and/or Congressional approval.

Or, the Court could state that, to be effective, the writ requires that someone be released to a particular place and that, without such possibility, the writ should be denied as unenforceable. I don’t think that will be the result, as it would too blatantly confess the impotence of the Court. Better then, from the perspective of institutional legitimacy to decline to decide this by finding it to be a non-justiciable political question.

Third, the Court might address the claim that the Uighurs at Guantanamo have no constitutional rights (reaffirming Mezei), and that the writ cannot go beyond addressing the fact of confinement based on their status as enemy combatants. Though not entirely necessary to answer the immediate question whether the courts can order the Uighurs admitted into the U.S. without the political branches’ agreement and without compliance with the immigration laws (another matter where the judiciary is highly circumscribed in its freedom of decision), the Court might use the case to shine a yellow or red signal regarding the expected flurry of lawsuits by former detainees seeking damages from U.S. officials.

Whatever the result, the case likely will produce some spirited opinions and be a close-run matter, quite typical of separation of powers disputes.

UPDATE: The Court today accepted review of the case for early 2010.

In last year’s Boumediene decision, the Supreme Court overturned centuries of doctrine and practice to create a right for suspected unlawful enemy combatant detainees held outside the United States to sue for habeas corpus to challenge their detention. Following that decision, a court ordered that Boumediene be released. The Bush administration took the position that even a court order to release would not be obeyed unless and until the executive deemed it safe to do so. In yet another continuation of W’s policies, the Obama administration has stayed the course on that claim of executive prerogative.

Boumediene, as an Algerian, should be returned to Algeria. But the Algerians, understandably, do not take kindly to a suspected terrorist returning to Algeria. The U.S. is unwilling to return him to Algeria, as American officials are concerned that he would be greeted with interrogation methods somewhat more robust than anything described in the OLC “torture memos.” So, now, the administration has received consent to send Boumediene to France.

I know that I should be shocked about this, but by now it’s hard to work up much bile over yet another administration reversal of position about fighting terrorism. I remember the years of criticism of the Bush administration from “human rights” groups over the use of military commissions to try foreign unlawful enemy combatants. Those groups pushed for trials in the regular courts under ordinary rules of criminal procedure. The Bush administration, relying on well-established precedent going back to the Revolutionary War, carefully crafted a system of military commissions that gave the accused more rights than were given to previous detainees, what was available to the defendants at Nuremberg (contrary to candidate Obama’s assertion), and what was required under Article 3 of the Geneva Conventions.

When the Supreme Court in its strained separation of powers interpretation in the Hamdan v. Rumsfeld case struck down this system, Congress responded with the Military Commissions Act of 2006, which basically gave the Bush administration what it had set up on its own earlier. Senator Obama opposed that law. It was a clear legislative rebuke to the Court. That act, in turn, came under attack from those same groups and, in the 2008 campaign, from candidate Obama. He promised to close Gitmo and abandon the military commission system.

Now comes President Obama. According to the New York Times, the administration is taking a long look at reviving the Guantanamo military commission system:

“Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies….

“But in recent days a variety of officials involved in the deliberations say that after administration lawyers examined many of the cases, the mood shifted toward using military commissions to prosecute some detainees, perhaps including those charged with coordinating the Sept. 11 attacks.

“’The more they look at it,’ said one official, ‘the more commissions don’t look as bad as they did on Jan. 20.’”

Of course, they’ll add the window dressing that the accused will be given more rights than they had under the Bush administration. But, as Chief Justice Roberts pointed out in his dissent to yet another silly Supreme Court opinion, the Boumediene case, what other rights can they be given consistent with the need to protect intelligence information and the need to deal with people that are not ordinary criminals?

The problem is that liberals believe that terrorists are ordinary criminals and that the battle against a political/military terrorist network is the same as dealing with the local gang. I don’t believe that the military commissions, as currently constructed, are needed for this task. I agree with those who say that these cases could be handled by a specialized court, a “national security” or “terrorism” court, staffed by non-military judges. But the procedure used would be essentially that provided by the Bush administration, not that available to ordinary American criminals under the Constitution, statutes, and rules of criminal procedure. In the absence of such a court, the military commissions are the way to go. Apparently, the administration, having to govern rather than just criticize, now agrees.

The way things are going, most of the remaining detainees will be scheduled for release (as the Bush administration also was doing), but many of those will not find a country to receive them. Some of those will be released into the U.S., with considerable protest by the communities of relocation. To mollify critics, some of the non-released detainees, those for whom no sensitive information is needed, will be tried in the regular federal courts as a fig leaf for the administration’s decision.  The rest will be tried before military commissions. Come January 20, 2010, Guantanamo will still be in business.

Via Hot Air’s Ed Morrissey, who has difficulty suppressing his sarcasm.

See also Jules Crittenden of the Boston Herald for some expressions of Schadenfreude and assorted links to equally acid commentary.

The Ninth Circus has done it again. In a strange decision, the court rejected the state secrets doctrine as grounds to dismiss a lawsuit against a Boeing subsidiary brought by people who claim they were subject to capture, extraordinary rendition, and torture. The Obama administration intervened to support the defendants. I am not sure that there is a lot to be read into this. It is not a clear rejection of the state secrets doctrine, but, as Ace of Spades points out, it is a totally impractical decision.

It may go to the Supreme Court and certainly seems to be contrary both to the established Supreme Court position regarding state secrets and to the expansive reading given to the doctrine by the other appeals courts that have addressed the issue. Perhaps the Ninth Circus is betting that the current Supreme Court is more willing to substitute its judgment for the executive branch’s in national security matters. That’s a plausible supposition. On the other hand, the Ninth Circus has a long history of making wrong bets on Supreme Court decisions.

I have previously expressed my, shall we say, disdain for the American Bar Association, an association by elites, of elites, for elites, out of touch with common sense, with an agenda of political correctness to compensate for their large partnership draws and government high civil service positions. During the Bush administration, the ABA managed to condemn the President’s position on executive signing statements. Such statements are made if the President signs a bill into law, but believes that certain parts of it may be unconstitutional, and that he either won’t enforce those parts or enforce them only within specified constitutional parameters. This is particularly the case if the President believes that the law might improperly burden the President’s executive powers. The President, after all, is an independent constitutional officer. Under long-standing constitutional theory going back to Jefferson, Jackson, and Lincoln, neither the Congress nor the Court can be the ultimate interpreter of the President’s constitutional powers. Either approach would lead not to a balance of power, but to legislative or judicial supremacy, respectively.

Some commentators have criticized the claim of the constitutional basis of signing statements and said that the constitutional veto power is the President’s tool to register his doubts about the law’s constitutionality. Since signing statements are not subject to Congressional modification, the finished law as so interpreted may not reflect Congress’ intent. On the other hand, Congress can pass a law that specifically addresses the concerns in the signing statement, and failure to do so arguably shows Congressional acceptance of the proviso. Or, to test the President’s resolve, Congress can pass a law, presumably over the President’s veto, that squarely rejects his position. Moreover, the signing statement allows the Congressional will to be done substantially, whereas a veto would require Congress to start over. In that sense, it is akin to the courts severing some unconstitutional provision from a statute, but continuing to apply the rest. Speaking of the courts, it is their practice not to consider presidential signing statements when evaluating the constitutionality of a statue as written. The only way that such statements can come up is if somehow the executive’s non-enforcement or qualified enforcement itself is subject to judicial review, an unlikely occurrence. Of course, the President’s objections may be based on formal opinions of the attorney general, which themselves might be a source of meaning in a separation of powers dispute. But that is outside the specific text of the statute.

Such signing statements have been used by presidents for a long time. There was little objection from the professors and none from the ABA when, for example, Bill Clinton issued them. But with George W. Bush, suddenly this became a crisis and a threat to the separation of powers, if the usual suspects are to be believed. They cite the quantity (which wasn’t much different as to the number of laws, only as to the number of sections of laws) and the subjects (areas such as war powers where the ABA politically disagreed with the President’s position).

Candidate Obama rejected the ABA’s crabbed view of executive power. President Obama has now made good on his understanding that such statements are within the president’s authority. Ed Whelan of National Review’s The Corner has written several outstanding articles dismantling the ABA’s position, here, here, here, and here.

The administration has given notice that captured terrorists will no longer be called “enemy combatants.” Why, or what difference it makes, is not clear. Nor is it clear what they will be called. I doubt that they will just be called “terrorists.” Too insensitive. It’s psychological torture. Perhaps this is a prelude to transferring them to be tried as ordinary criminals in federal courts with full constitutional protections. If one were of a Machiavellian bent, one might even suppose that the administration wants the court to order such transfers, so it can just throw up its hands and claim that they didn’t want that but have to obey a court order. It lessens the political price the administration would pay for such a move if the terrorists’ comrades-in-arms were to launch an inconvenient attack on the U.S. on President Obama’s watch.

But the matter is muddied by the administration’s insistence that it can detain not only people caught on the battle field, but also those captured elsewhere, such as in cities. The argument is positively Cheneyesque.

Moreover, the administration is opposing arguments to hold senior Bush officials civilly liable to former (or, presumably, current) detainees. Building on the Supreme Court’s holding in last year’s Boumediene decision that non-Americans held at Guantanamo have constitutional rights, these folks are now demanding damages for violation of their free exercise of religion and the Religious Freedom Restoration Act. Hey, how about giving them disability payments or veterans care if any of them were wounded while they were fighting the U.S.?

Ed Whelan at National Review suggests that, in like manner, President Bush just should have renamed Guantanamo. Then he could have said that there were no more detainees at Guantanamo.

Andy McCarthy, meanwhile, addresses Obama’s habit of adopting Bush’s policies, but renaming them or giving them a cosmetic tweak to make it appear that he is living up to his anti-Bush campaign rhetoric. He also suggests that the detainees be renamed “undocumented freedom fighters.”

Not to be outdone, Mark Steyn provides a link to some other potential characterizations for the detainees, such as “future Facebook friends.”

The Obama administration is, once again, endorsing the Bush administration’s constitutional positions in the “War on Terror.” The administration takes the strongly pro-executive power position that 600 unlawful combatants held at Bagram Air Base in Afghanistan have no constitutional rights, and that the habeas corpus rights extended to the Gitmo detainees should not apply to others. While that position is backed by solid precedent in Johnson v. Eisentrager, it flies in the face of Obama’s campaign rhetoric. Needless to say, mere solid precedent does not mean that the Supreme Court will be deterred from making up yet another constitutional innovation. Indeed, the tone of the opinion lends scant comfort that the damage the Court has wrought will be contained to Guantanamo. Rather, in typical fashion, Justice Kennedy talked about numerous factors to consider. That not only allows the Court the flexibility to extend the decision to reach wherever American forces are (”The Constitution follows the flag”), but, worse, it creates an uncertainty in the law, under which the executive branch can ill afford to labor.

The President also has reaffirmed resort to renditions.

The administration’s position has the incidental merit of giving the President the option of grandiosely closing Gitmo, and transferring those people to Bagram. At the very least, any new detainees will be kept there, farther from the gaze of American courts and media than W ever did. It bears noting also that the facilities at Bagram appear to be much more spartan than those at Gitmo.

Likewise, the Obama administration backs George W. Bush’s views on the state secrets doctrine. Their position embraces strong executive branch power and argues that the judicial branch lacks the competence to decide when classified information should be released. A similar argument is being made in another case involving rendition, about which I have posted before. As the Wall Street Journal points out, “[We] are relearning that the ‘Imperial Presidency’ is only imperial when the President is a Republican. Democrats who spent years denouncing George Bush for ’spying on Americans’ and ‘illegal wiretaps’ are now conspicuously silent.”

Following the lead of the Bush administration, the Obama administration argues in court that detainees held at Bagram Air Base in Afghanistan do not have constitutional rights, and that the Supreme Court decision extending habeas corpus relief (and by implication, at least, constitutional rights) to prisoners held at Guantanamo Naval Base does not apply. “Human rights” activists are miffed. The “hope” they had has not turned out as expected. Time to change some hope.

And the fun continues. A Pentagon study commissioned by the Obama administration concludes that conditions at Guantanamo meet Geneva Convention standards.

Then comes the good news in a report from The New York Times that Obama’s anti-terror legal tactics will largely and in various ways carry forward the approaches undertaken by the administration of George W. Bush. Mark Steyn quotes a line from Orrin Judd, “Wouldn’t it have saved a lot of time if Obama had just asked W to be his War-on-Terror czar?”

This opinion piece from the Jerusalem Post lays out the potential problems faced by the American military as well. The potential liability of soldiers, especially high-ranking officers being dragged before international courts by the usual suspects in jurisdictions unfriendly to the U.S., is the main reason the U.S. refused to accede to jurisdiction by the International Criminal Court under the Rome Treaty. In addition, Senator Jesse Helms introduced the American Service-Members Protection Act (ASMPA) in response. The law was adopted in 2002. As the article states, ASMPA’s stated purpose was to “to protect United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court to which the United States is not party.”

Moreover, “ASMPA gave the president far-reaching powers to take action against those who might try to prosecute soldiers, especially the ICC. Most strikingly, ASMPA provides the president with ‘all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the ICC.’ Simply stated, the law permits the president to employ military force, if necessary, to free any American soldier arrested on charges of war crimes from the custody of the ICC. It was for this reason that ASMPA has earned the nickname ‘The Hague Invasion Act.’

Furthermore, ASMPA prohibits any American governmental entity or court from cooperating with the ICC and bars the US from transferring any information to the ICC or to countries that are party to the Rome Treaty.”

Israel finds itself with similar vulnerability. Its armed forces already fight under a policy that essentially requires the military to get legal review before it does anything. Yet its enemies in the Middle East and their sympathizers in the West and at the United Nations turn every Israeli reaction against months of indiscriminate rocket attacks and against acts of terrorism into accusations of the worst war crimes imaginable.

Meanwhile those same critics of Israel and the U.S., both domestic and foreign, turn a blind eye to actual torture and war crimes by those they find ideologically sympathetic, such as Hamas. Hamas’s continual violation of the laws of war by firing indiscriminately on civilians and purposely waging war from civilian installations such as schools and hospitals constitute war crimes. But no one cares. It’s the usual liberal double standard. These people denounced American efforts in Vietnam, while cheering on the atrocities committed by the Viet Cong and ignoring the genocidal actions by the Pol Pot regime in Cambodia. More recently the transnational left elite denounced George Bush and wants to have him and others tried for war crimes, while feting their heroes like Fidel Castro and Hugo Chavez and ignoring Kim Jong-Il, the Iranian regime, Robert Mugabe, and assorted other thugs whose prime recommendation to the Left is that they are all anti-American. Human rights violations and true dictatorship just seem less evil when done by a leftist.

On Friday, I attended a symposium hosted by the law review students at Chapman Law School (part of Chapman University) in Orange, California. The topic was Lincoln and the Constitution, with application to the current conflict with terrorists. Particular subjects were suspension of the writ of habeas corpus and detention of American citizens; Lincoln’s financing of the war; and wartime infringement of civil liberties.

Most of the panelists stuck to the topics at hand, though some decided to talk about themselves and matters of interest to them, whether or not there was any obvious relevance to the subject of the symposium. The panels were evenly split between what one might call the Left and the Right, though the economists were generally united in their disdain for the Fed and (with one libertarian exception) supportive of resurgent vulgar (as contrasted with Lord Keynes’s version) Keynesianism, the economic fad of the year. U.C. Berkeley law professor John Yoo (currently on a visitorship at Chapman Law) of the libelously-named “torture memo” fame was there, as were Roger Pilon, a national security libertarian from the Cato Institute, and Professor Harry Jaffa, a noted Lincoln scholar and historian from the Claremont Graduate School. The discourse was civil and the liberals from the ACLU and others who had litigated to expand the rights of Gitmo detainees and other suspected terrorists made reasonable, though in my mind unfounded and misguided, arguments.

The thoughtful discussion and exchange of ideas was shattered by a Professor Marjorie Cohn, a professor at Thomas Jefferson Law School in San Diego, who is also the head of the National Lawyers’ Guild, a hard-left group. She was the last speaker of the day and read a diatribe against President Bush and other administration officials. She also taunted, insulted, and, one might imply from her remarks, threatened John Yoo, in a typical left-wing display of lack of class and manners. Her fellow lefties in the audience interrupted her speech with applause, a tactic that the classier conservatives did not do when intellectual points were made that they might favor. As I’ve pointed out before, lefties say that they want to build a classless society in the U.S. Most people think that means a supposed enforced equality of condition. But judging by their behavior, lefties are intent on producing a society of people who have no class. Her physical appearance was exactly what might be expected of someone with hard-left politics from New York. I doubt that she has laughed warmly and joyfully about anything since the last Ice Age or when she was a young girl, whichever came first. Anyway, I eventually decided that I was not learning anything or having my views challenged by this bitter harridan, so I stepped outside for a break.

The point of the post, though, is to address an argument made by one of the other speakers, Chapman law professor Katherine Darmer. She took what she thought must have been a bold stand against torture. But she went further and characterized waterboarding as torture. I wanted to ask her a question about this, but the presentation was running late and ended before they could get to me. So, I will present the argument here, along with some other points.

Liberals like to say that torture produces no reliable information, because people will just say what they want the interrogator to hear. To me, that proves too much. And, indeed, as best as can be said, torture sometimes produces good information and sometimes not, much as other methods do. So the justification of torture or opposition thereto has to be based on other grounds, such as ethical norms or, for the utilitarians, a cost-benefits approach. The reason the liberal argument proves too much is that they say that the practice is so destructive of the will to resist that the victim will say whatever it takes to end the long-enduring painful process. Therefore, the victim who really has no information will confess to acts that he has not in fact done just to make the pain stop.

Two problems: The less significant objection is that all questioning is suspect on that basis. Indeed, even without questioning some people will confess to crimes that it turns out they have not done. That is one reason why a confession alone is not enough for conviction of a crime. Confessions are inherently unreliable without corroborating evidence. Confessions are useful only to produce potential new leads or to corroborate evidence the interrogator already has. So confessions produced by torture are no worse in that respect than those obtained through other questioning.

The other problem is that, using liberals’ test, presumably those with valuable information will also want the pain to stop and will tell the interrogators what they want to hear, namely, the good information. For liberals to say that those with good information will craftily concoct false stories under torture, while those with no good information will confess to that false information is changing analytical parameters in mid-stream. Asserting that someone has the presence of mind to concoct a web of lies while under the unbearable mental and physical anguish of torture undermines the definition of the term.

But that last seems to be part of the liberal program. Professor Darmer considers water-boarding torture. Now, the Yoo “torture memorandum” about which I posted last summer, incorporates the law’s traditional tight compartmentalization of degrees of interrogation. The law distinguishes between torture, “ordinary” cruel or abusive conduct, and other physical interrogation techniques. Torture is the “worst of the worst.” Professor Darmer brought up Christopher Hitchens’s article describing how he underwent waterboarding to see how long he could go without giving in. He then tried a second session twenty minutes later to see whether he could go longer. Professor Darmer related Hitchens’s conclusion that this was torture. I should note that a Fox news reporter also underwent waterboarding to see what it was like, and at least some groups within the armed forces are subjected to the experience for training.

I see Hitchens’s (and the others’) experience differently. Whatever else one might call it, any procedure that an out-of-shape, middle-aged journalist voluntarily undergoes and then repeats to see if he can “better” his timeis not torture. It’s a sporting event. Contrast that with the historically-verified actions of the Japanese in World War II about which I have posted before. They conducted medical experiments on POWs, including American servicemen. Among those experiments were vivisections, where live POWs underwent forced operations, without anesthesia, and had organs removed or manipulated (such as manual stopping of the heart) to see how the dying process, such as through organ failure, occurred. After a typically lengthy operation, these unfortunates would die. These Japanese practices, historians have determined, were of a much higher order of magnitude of inhumanity than anything that the Nazis or the Allies did.

Now, it seems that everyone could agree that the Japanese vivisections were torture and war crimes. Yet it seems incredible to me that such procedures would be equated with 30 seconds of waterboarding that produces no physical injury, much less death. Using torture outside its traditional meaning may have rhetorical shock value, but erodes the distinctive message the word once conveyed and makes it increasingly opaque and useless as a device to define and distinguish qualitatively different actions. This is particularly a problem for definitions of crimes, for which we demand some precision. Worse yet is imprecision for criminal responsibility for actions deemed as horrific and morally repulsive as, well, behavior on the level of the Japanese vivisections.

I wanted to ask Professor Darmer to give a definition of torture, one that would be sufficiently precise for criminal law, and that would account for vivisection and similar behavior, but also offer a distinction for less repugnant actions. If she also wants to treat waterboarding the same as vivisection, again what would the definition be to cover both of those, but distinguish them from other interrogation techniques? Such a definition would have to account for the fact that behavior more like waterboarding in severity than the latter is to vivisection would not be considered torture, while waterboarding is equated with vivisection. Along those lines, I wanted to ask her what techniques more severe than failing to serve the terrorists coffee and doughnuts, would still be permitted. She did not offer such a definition of her own. Nor have I seen others provide it. It is easy to posture about being opposed to torture in a vague and general sense. It is another to come up with a precise definition to replace the current accepted one.

I also asked Professor Yoo whether he was aware of any article that had actually shown where his analysis of the law of torture in his memo was incorrect. There has been a lot of invective, and one may opine that he stretches the precedents to their utmost to accommodate executive power. But his conclusions are a matter of legal interpretation left for ultimate political decision-making. They are not legal error. He said that he was not aware of any such article. Nor has anyone come up with a different framework for the law regarding torture and the legal distinctions Yoo’s memo explored.

I don’t expect that there will be new developments along that front. After all, there must be some distinction that the law retains for the Japanese vivisection and analogous kinds of morally degenerate infliction of pain likely to result in death.

Liberals are fond of declaring how the rest of the world has come to despise the U.S. in general, and the Bush administration in particular, for the treatment of terrorists. They claim, as was done at the Chapman conference, that Abu Ghraib and Guantanamo brought recruits to terrorist organizations. Instead, those liberals claim, we should emulate the European way of doing things, since the Europeans are much more effective at dealing with terrorists without the use of torture. Leaving aside bin Laden’s statements about the recruiting bonanza provided by the U.S.’s appearance of weakness for failing to respond to various terrorist attacks in the 1990s, it should be noted that Somalia, the First World Trade Center attack, the Khobar Towers attack, the Kenyan Embassy bombings, the U.S.S. Cole attack, the aborted Pacific Ocean airliner attacks, 9/11, and even the Bali bombings all occurred before Abu Ghraib and Guantanamo had any effects.

Moreover, the Europeans are as honest in their criticism of enhanced interrogation techniques as they are about the U.S.’s failure to sign any climate change deals. In both cases, the Europeans lie about their own actions. See, for example, this article about an interrogation technique used by German police and essentially validated by the European Court of Human Rights. That technique was not permitted to be used by the U.S. military, per directive by that “war criminal” Don Rumsfeld. The twists and turns of reasoning by the European Court to justify the German police behavior is particularly ironic when one compares its similarity to the reasoning in the Yoo memo.

This will not make life easier for Obama. A military judge rejects the motion to delay Guantanamo trials. The ruling took the White House and the Pentagon completely by surprise. And here I thought that such a thing would not happen in this administration of competence. One concern here is that once jeopardy attaches, if the case is dismissed, it cannot be retried in whatever court Obama comes up with for these detainees. However, if things are at the pretrial stage, it may be possible, as the judge says to transfer the case to another court. Moreover, if speedy trial rights are violated, the case would be barred. That should not be problem here because both prosecutors and defense counsel have agreed to the delay.

Note the Los Angeles Times’s headline and the ACLU’s interpretation of the judge’s action. If the judge had differed with President Bush, he would have been hailed as a hero speaking truth to power. But when the judge decides to be independent of an Obama “request,” why, he is somehow undermining the President. New bumpersticker needed: Now dissent really is patriotic.

One tool sometimes used by U.S. law enforcement and by the CIA is “rendition.” In essence, this involves having American agents kidnap a wanted person while that person is outside the U.S. In “ordinary rendition,” the person is then brought to the U.S., while in “extraordinary rendition” the person finds himself in the, ahh, “embrace” of foreign agents acting pursuant to an understanding with the U.S. The public image of renditions fostered by the media, Hollywood, interest groups, and defense attorneys is that such actions are the creation of the evil Bush administration violating the constitutional rights of innocents.

Well, no. Renditions of both types have been going on for a long time. While the pace particularly of extraordinary renditions has picked up since 9/11, the practice has been in place since before the Reagan administration. I have seen reports that the first Bush administration had between 10 and 20 such cases, while the Clinton administration had dozens. The Supreme Court has no problem with ordinary renditions, though it has not yet addressed extraordinary renditions. Lower courts, however, have addressed them and refused to find officials who engage in them liable for damages, though the cases do not have to face the issue of the constitutionality of the practice squarely.

Listening to their early campaign rhetoric, one would expect the Obama administration to abandon at least extraordinary renditions. His decision to close Guantanamo and “other secret CIA bases,” to limit CIA interrogation techniques, and to appoint Leon Panetta, an outsider, to head the CIA were also described as pointing in that direction.

But, what do you know? First, closing the secret bases and changing interrogation methods is more light than heat. Bush already emptied the prisons and ordered the inmates released or sent to Guantanamo, but he refused to close the prisons. Obama is formally closing the prisons:

“But the orders leave unresolved complex questions surrounding the closing of the Guantánamo prison, including whether, where and how many of the detainees are to be prosecuted. They could also allow Mr. Obama to reinstate the C.I.A.’s detention and interrogation operations in the future, by presidential order, as some have argued would be appropriate if Osama bin Laden or another top-level leader of Al Qaeda were captured.

The new White House counsel, Gregory B. Craig, briefed lawmakers about some elements of the orders on Wednesday evening. A Congressional official who attended the session said Mr. Craig acknowledged concerns from intelligence officials that new restrictions on C.I.A. methods might be unwise and indicated that the White House might be open to allowing the use of methods other than the 19 techniques allowed for the military.”

So the secret prisons may return as needed, as may the interrogation methods. Then it turns out that Panetta is the guy who was in charge of extraordinary renditions for the Clinton administration! More “hope” and “change” out the window.

Michael Ramirez gives Panetta a dressing down.

The President acts pursuant to Congressional delegation of authority or under his own powers under the Constitution, usually found in Article 2. The former is subject to the broad constraints of the non-delegation doctrine, namely, that “delegated powers cannot be redelegated.” The theory is that when the people delegated functions to Congress, they did not want those re-delegated in a way that would upset the structure of separated and balanced powers set up in the Constitution. The latter source of power rests on specific grants such as the President’s power to veto legislation or to pardon those who have committed federal crimes, as well as on more ambiguous provisions such as the commander-in-chief clause, the “take care that the laws be faithfully executed” clause, and the “executive power” clause.

Defenders of expansive presidential powers often rely on broad delegations from Congress. Presidents since at least Wilson have at times been given breath-takingly broad powers by Congress to act. The non-delegation doctrine has been rendered impotent by the decisions of the Supreme Court after the mid-1930s, when the Court for the last time invalidated a delegation from Congress to FDR (and big business and big labor) to cartellize American industry and otherwise massively interfere with the economy. So, far-reaching delegation to the executive branch is common-place, although the recent TARP legislation and its likely successors are straining the last coverings of constitutional modesty.

Presidents have expanded their constitutional powers and met the need for flexibility by relying on “implied powers” derived from the ambiguous clauses mentioned above. This has been particularly true in foreign relations and military and national security matters, where, for obvious practical reasons as well as constitutional structure, the need for unanimity of decision, and for speed and flexibility of action, are acute. The Federalist Papers several times address the characteristics of energy, decisiveness, and accountability that are associated with the Executive Branch. In ordinary domestic matters, barring some limited emergency, Presidential claims of broad implied powers are much more difficult to sustain.

WIth only a few bumps along the way, both the Congress and the Supreme Court accepted that use of “implied executive” power within the dichotamous framework of ordinary domestic versus foreign/military matters until the George W. Bush administration. The “bumps” were usually associated with a Democratic Congress seeking to curtail the actions of a Republican President. The most serious of these was the “War Powers Resolution of 1973,” which addressed the President’s discretion to commit military forces to hostile action, while the “Budget Control and Impoundment Act of 1974″ dealt with domestic matters.

In turn, the Court took a shot at President Truman in the famous Steel Seizure Case (Youngstown Sheet & Tube v. Sawyer) in 1952, by denying the President the authority to seize steel foundries to settle a labor dispute that was threatening, according to Truman, the Korean War effort. The majority and concurring opinions claimed (in a patently obvious distortion of the record) that the President’s action was foreclosed by Congressional action to deny him that authority. However, most of the concurring opinions, at least, allowed that in the absence of that Congressional restriction, the President might have been permitted to act as he did. Indeed, the ultimately most significant opinion in that case, Justice Robert Jackson’s concurrence, read together with the earlier Curtiss-Wright Export case and the later Dames & Moore v. Regan decision, solidify executive claims of broad action based on flexible implied powers in foreign and military/national security matters.

This pattern carried forward into the early years of the Bush administration, with the expansive Congressional “Authorizations to Use Military Force” of 2001 and 2002 for action against the Taliban/al Qaeda and Saddam Hussein, respectively, as well as the Patriot Act. In addition, the administration made broad assertions of independent authority to combat terrorism by electronic eavesdropping (the “secret” NSA program), long-term detention of alien unlawful enemy combatants outside the U.S., “extraordinary rendition” and of terror suspects, aggressive and forceful interrogations as needed, and trials of certain terrorists and unlawful combatants by military commissions at Guantanamo under procedures developed by the Defense Department.

While these policies soon received relentless criticism from liberals, they were hardly novel. The decisions relied on expansive, but defensible reading of statutes, as well as historical practice going back to FDR, Lincoln, and the founding generation. The courts got into the act, as well, giving the President a number of victories, studiously ignored or downplayed by the media and academics. Unfortunately, the Supreme Court also decided several high-profile cases adverse to the administration. These were hailed by professors, Democrats, defense attorneys, and commentators as embarrassing rebukes to the administration. Actually, embarrassing better describes the manner in which the decisions, several authored by Justice Kennedy, overruled, ignored, and twisted long-standing constitutional precedent to justify results that the, typically, 5-judge majority had determined it wanted to reach for ideological reasons. There are some, but not many, opinions (Kennedy’s mangling of logic and doctrine in the youthful offender death penalty case comes to mind) that are as poorly reasoned constitutionally and as intellectually dishonest as these.

Liberals cheered these opinions and declared piously that the Court was standing up for limited government and against executive overreaching. These cases supposedly put to rest broad claims of executive power and represented the tradition that Congress had to authorize executive action to safeguard civil liberties. When Congress repeatedly approved the executive’s actions in the Patriot Act’s re-enactment, the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006, those same liberals dried their earlier crocodile tears over the demise of the balance of executive and legislative powers, and claimed that the laws agreed to by both branches were unconstitutional. In a couple of decisions, the compliant justices indulged their own liberal views and the wishes of their fellows in the transnational legal elite and struck down those laws in part or tortured their language to acheive the desired result.

As I pointed out last year in a post on the Medellin decision, the liberal mantra for restrictions on the executive was driven by ideology, not by constitutional principle. It was not an intellectually honest position because those same liberals supported George W. Bush’s unprecedented attempt unilaterally to give an international court decision the force of domestic law binding on the sovereign states. Liberals applauded that presidential order because it reflected the views of the transnational legal elite and could end up protecting a gang-rapist/murderer and hobbling the application of the death penalty. In similar vein, liberals advocated that a future President should be able to make an executive order or agreement to make international environmental protocols and treaties to which the U.S. was not a party binding on the U.S. anyway (e.g., the Kyoto Accords that the U.S. Senate refused to ratify after a unanimous sense-of-the-Senate resolution that such a treaty should not be ratified).

So it does not at all surprise me that, when the incoming administration signals that it plans an aggressive use of executive power in domestic matters, liberals applaud. Revisionist history is in full swing. The problem never was, it turns out, unilateral executive action that violated the Constitution in ways that, according to liberal spin before January 20, had never been done. In fact, Bush had done nothing that other presidents had not done more vigorously. Moreover, Bush claimed far-reaching executive power in those areas in which they historically were least problematic, foreign affairs and military/national security matters. The problem for liberals was that Bush was the one exercising that power for policies that liberals did not support ideologically.

With Obama settled in office, aggressive use of executive power is “in.” And not just for the traditional areas of foreign affairs and military/national security matters. Instead, massive rearrangement of the economy and domestic policy by decree is the goal. Part of this will be the adoption of a destructive and false environmentalist agenda. Part of this will be the imposition of Obama’s health care policy under the guise of economic recovery, with funding to come from the uncontrollable delegation of power under the TARP program approved by Congress last fall when it became apparent that Obama’s election was in the offing.

Predictably, liberals in the media and academe approve. Indeed, as Powerline points out, the duplicitous revisionism extends to officials within the Obama administration itself:

“It turns out that Bush’s aggressive assertion of judicial power was not really the problem; the problem was, well, Bush. This, according to Gellman, is the real view of Dawn Johnson, the arch-critic of Bush administration legal policy who has been nominated to head the DOJ’s Office of Legal Counsel. In her “popular commentaries in Slate and elsewhere” Johnson has vigorously attacked Bush and Cheney for “overreaching.” But Gellman says that in her “scholarly writing” she takes the position that “the trouble was not that [Bush] asserted the power, but that he used it wrongly.” How post-modern for a once-and-future top DOJ official to talk out of both sides of her mouth this way.”

More ”previous positions are no longer operative” bait-and-switch from the folks whose spokesman claims to want to set aside our tired partisan differences. As I and others have pointed out, politics is a human drive since time immemorial. “Setting aside differences” always means, “shut up and let me do it my way.” It was a central theme for fascists and other totalitarians bent on imposing fundamental change on those whom they “rule.” The signs pointing to a massive reordering of the economy by executive governance bodes ill. The new liberal version of expansive executive power used in ordinary domestic policy is on far thinner constitutional ice and far more threatening to the liberties of ordinary Americans than Bush’s more traditional position was:

“Bush’s agenda was aggressively expansionist when it came to national security and to his own autonomy as president, but in many spheres he aimed to diminish government’s role. There were exceptions, with the No Child Left Behind Act and the Medicare drug benefit, but the central plank of Bush’s domestic program called for reducing the government’s share of national income and its role as regulator of the environment, free markets and civil rights.

Now there is broad acceptance of a rescue package that comes close to nationalizing large swaths of the private economy.”

This is another instance of what I have seen so often over the years. One can never go wrong underestimating the duplicitousness of liberal protestations of constitutional principle.

Maher Arar is a Canadian of Syrian birth who was detained by the U.S. in September, 2002, as he was in transit through New York’s Kennedy Airport from Tunisia to Montreal. He was detained as the result of a tip from the Royal Canadian Mounted Police that he was a suspected terrorist (having been observed in a three-hour conversation with Canada’s top terrorism suspect in 2001). Mistakenly told by the Canadians that Arar had moved away from Canada, the Americans detained him at the Brooklyn Detention Center for a couple of weeks, and then took him to Amman, Jordan. There, he was turned over to the Syrians. When he emerged ten months later, he returned to Canada and began to claim that he was tortured by the Syrians and detained under inhumane conditions. He also complained that he had suffered harsh interrogation and unconscionable detention conditions while he was held by the Americans. While in Syrian custody, he signed a confession in which he admitted that he had been at a terrorist training camp in Afghanistan in 1993. Upon release, he claimed never to have been anywhere near Afghanistan.

After his return, Arar to Canada, Arar filed a lawsuit against Canadian officials for their involvement in this matter. The suit was put on hold, while a special commission looked into the matter. In early 2007, the commission awarded Arar CDN$10.5M for his claimed ordeal of having been tortured and kept in subhuman confinement. They believed his tales of, among other things, having been beaten with a 2inch steel cable and that he had never been in Afghanistan.

Arar also filed a suit for damaged against American officials, including the FBI Director and the Attorney General arising out of his confinement in Brooklyn and having been turned over by the U.S. to the Syrians. The U.S. District Court dismissed his case on the basis of the “state secrets” doctrine. The Appeals Court affirmed that decision, but on the ground that Arar had failed to make out a legal claim on any of his allegations.

Arar has been a hero to Canadian, American, and foreign “human rights” groups and Muslim organizations because his tale confirms their views of the malevolence of the American law enforcement and military, and of their Canadian poodles. Except that things may not be exactly as Mr. Arar presents them. Evidence is emerging that Mr. Arar is not the innocent victim of brutal torture that he claims.

Apparently, Arar never complained of physical torture to the Canadian consular officials who visited him nine times while he was in Syrian custody, including within a week of when Arar later claimed the beatings took place. Those officials never saw any physical signs of beatings or other torture. Nor has anyone else. When one of the officials, an experienced hand at detecting torture, asked Arar point-blank whether the Syrians were physically torturing him, Arar replied that they had “other ways.” He did complain about the cramped cell in which he was kept. No medical evidence was ever introduced about physical torture, even though the types of beatings he alleged would have left lasting scars and disfigurement. His supporters more recently began to change the theme to unspecified ”psychological” torture.

Moreover, despite being asked to provide evidence of Mr. Arar’s whereabouts in 1993, to show that he was in Canada and not in Afghanistan, he and his family have failed to do so. There is no accounting for him that year. And now, it turns out, two suspected terrorists interrogated independently in the U.S. and at Bagram Air Base, respectively, have identified Arar as someone whom they saw at an al Qaeda “safe house” in Kabul and at a terrorist training camp in Afghanistan. While the testimony of one is suspect because he said that he thought Arar looked familiar, that would have been in 2001, when Arar can prove his whereabouts in Canada. But the other’s testimony is not as easily dismissed.

Read the linked article, but especially the links within the article, which are more detailed and fascinating. Arar continues to be on a U.S. watch list to keep him out of the country.

What does one make of this? Khalid Sheikh Mohammed and some of the other heavyweights imprisoned at Guantanamo want to plead guilty rather than face trial before military commissions? Even though their offenses carry a possible death penalty? And they decided this on the day Obama got elected? You know, the guy who wants to close Guantanamo and have these terrorists tried in civilian courts? The pre-September 11 approach that did so well in preventing terrorist attacks on Americans at home and American interests abroad? Powerline has their own theory.

In this article, Thomas Joscelyn of the Weekly Standard takes another look at the folks who are detained or imprisoned at Guantanamo. He speculates that Obama will soon find out, if he hasn’t already, that the people kept at Guantanamo are there for a reason. Joscelyn goes through a list of first-level and second-level terrorists held at Gitmo, and their roles in attacks on the U.S. The list decribes a terror network whose efforts to kill Americans could not have been thwarted without the means used by the Bush administration and which have come under attack from “human rights” lawyers and other armchair critics. He discusses various “red flags” that characterize terrorists who are fighting the U.S., and he talks about the many de-classified documents in a government database that relate to the terrorists that the media have failed to use. Joscelyn also refutes the notion that the Clinton administration successfully used the existing civilian courts to deal with accused terrorists, a notion that should have received a quick burial on September 11, 2001. Joscelyn concludes,

When the Bush administration sent the first detainees to the U.S. Naval Station Guantánamo Bay in 2002, it was improvising-understandable in a situation without precedent. The captured jihadists and terrorist agents were not conventional prisoners of war, and they were not ordinary criminals. In the ensuing seven years, the administration failed to replace its stopgap measure with an institutional response seen as legitimate. Bush’s successors should remember, however, that he took the steps he did in the context of a war against enemies who are still seeking to attack our homeland. President Bush, whatever his faults, protected America after September 11, 2001. Shortly, it will fall to President Obama to do the same.