Pinching the President's prosecutorial prerogative: can Congress use its purse power to block Khalid Sheikh Mohammed's transfer to the United States?

• Author: Martinez, Nicolas L.

"We have been unable to identify any parallel ... in the history of our nation in which Congress has intervened to prohibit the prosecution of particular persons or crimes." So wrote Attorney General Eric Holder in a December 2010 letter addressed to the leadership of the Senate, in response to proposed congressional funding restrictions that would have forbidden the executive branch from using any appropriated funds to transfer non-American Guantanamo detainees held by the Department of Defense--Khalid Sheikh Mohammed in particular--to the United States. Those funding restrictions have since been signed into law on multiple occasions.

There is little doubt that these restrictions destroyed any hope the Obama Administration had of prosecuting the alleged 9/11 plotters in federal civilian court. What is in doubt, however, is whether Congress had the power to enact these restrictions in the first place. Congress's actions have been labeled by the Attorney General as "dangerous precedent" and by the President as a "'violat[ion] of separation of powers principles" under certain circumstances. Yet no legal scholarship has been published that analyzes whether Congress's exercise of its purse power unconstitutionally infringed on either the President's authority as commander-in-chief or the executive's monopoly over the federal prosecution of named individuals. This Note aims to be the first voice on the issue.

Using both a separation of powers balancing analysis and a tripartite framework that builds on the work of Charles Tiefer, this Note concludes that while Congress has indeed stretched the permissible limits of its purse power in this instance, the legislature has not violated the Constitution. The analysis reveals, moreover, that Congress's funding restrictions infringed less on the President's military authority as commander-in-chief than on his prosecutorial authority. Ultimately, this Note also raises the question of whether Congress's actions to effectively forbid the prosecution of named individuals in federal court, even if constitutional, are still bad policy.

INTRODUCTION I. CONGRESSIONAL FUNDING BANS AND THE PROSECUTION OF KHALID SHEIKH MOHAMMED II. THE CONSTITUTIONAL POWERS A. Congress's War Power B. Congress's Purse Power C. The President's Commander-in-Chief Power D. The President's Prosecutorial Power III. PURSE STRINGS AS A CONSTRAINT ON THE COMMANDER-IN-CHIEF A. Historical Precedent: Vietnam and the Boland Amendments B. Separation of Powers Balancing and a Tripartite Framework C. Congress's Funding Ban Did Not Unconstitutionally Limit the Commander-in-Chief IV. PURSE STRINGS AS A CONSTRAINT ON THE CHIEF PROSECUTOR A. Historical Precedent: Is There Any? B. Congress's Funding Ban Did Not Unconstitutionally Limit the Chief Prosecutor CONCLUSION INTRODUCTION

Amidst a spirited defense of congressional apportionment in The Federalist No. 58, James Madison presciently wrote: "This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people...." (1) While Congress's purse power is as formidable today as Madison envisioned it to be in 1788, this authority has limits. (2) Nonetheless, the extent to which Congress may wield its power of the purse to infringe upon the constitutional powers committed to the other branches of government--the executive in particular--remains blurry. The clash between Congress's power to appropriate and the President's Article II authority has rarely been more intense in American history than during the present Global War on Terror. For years, members of Congress (primarily Democrats) have sponsored legislation attempting to use Congress's purse power to hasten U.S. withdrawal from Iraq (3) and to dictate military policy in Afghanistan. (4) These measures have prompted fierce debate on the floor of Congress and in the court of public opinion, and they have even led to presidential vetoes. (5)

More recently, however, Congress has taken the unprecedented step of prohibiting the executive branch from using any appropriated funds to transfer foreign detainees held by the Department of Defense--Khalid Sheikh Mohammed in particular--from Guantanamo Bay, Cuba, to the United States. (6) In so doing, Congress has encroached not only on the President's power as commander-in-chief of the armed forces, but also on the traditionally executive function of criminal prosecution. The question this Note aims to answer is whether that encroachment has unconstitutionally infringed on presidential authority, or whether, in light of historical precedent, Congress has merely exercised its own constitutional prerogative to check the President's war powers and prosecutorial powers.

Attorney General Eric Holder shared his candid views on that question in a December 2010 letter to the Senate leadership: "We have been unable to identify any parallel to [the funding restrictions] in the history of our nation in which Congress has intervened to prohibit the prosecution of particular persons or crimes." (7) Attorney General Holder considered Congress's singling out of Khalid Sheikh Mohammed "an extreme and risky encroachment on the authority of the Executive branch" that would establish a "dangerous precedent." (8) For his part, President Barack Obama has issued sternly worded signing statements in which he has labeled the restrictions, inter alia, "a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees." (9) Though President Obama has stopped short of calling Congress's actions unconstitutional, he has recently indicated that these funding prohibitions would, in some circumstances, "violate constitutional separation of powers principles." (10) The President has yet to elaborate on what exactly these circumstances might be. Whereas the President, perhaps for political reasons, has largely chosen not to challenge the constitutionality of the congressional funding constraints, this Note aims to be the first piece of scholarship to do just that. (11)

In order to examine the constitutionality of Congress's decision to deny funding for the transfer of Guantanamo detainees, this Note will first sketch the background leading up to that decision, including a brief look at U.S. efforts to prosecute Khalid Sheikh Mohammed. Congress's first series of funding restrictions passed in 2009 made no explicit mention of Khalid Sheikh Mohammed (12) and generated little public pushback from the Obama White House. (13) But less than five months after Congress first inserted Mohammed's name into the funding restrictions, (14) the Department of Justice announced it would no longer seek to try him and four other alleged 9/11 plotters in federal court. (15) This Note's second Part will summarize the principal constitutional powers implicated by this scenario--namely, Congress's war power and power of the purse, and the President's commander-in-chief and prosecutorial powers.

Third, this Note will analyze how Congress may use its purse power to constrain the commander-in-chief. In particular, this Part will examine historical precedent of Congress drawing the purse strings during wartime, and will then examine two frameworks in which to evaluate the constitutionality of Congress's funding restrictions in this case: a separation of powers balancing analysis and a tripartite framework reminiscent of Justice Jackson's famed concurrence in Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure). (16) The fourth Part will shift the focus to the President's prosecutorial power and the extent to which Congress may use its purse power to direct the handling of individual prosecutions. Unable to identify any historical parallel to the restrictions at issue here, this Part will extend the two analytical frameworks developed in Part III in order to assess whether Congress has overstepped its constitutional boundaries by forcing the executive branch to try Khalid Sheikh Mohammed and four alleged co-conspirators before military commissions.

Finally, this Note concludes that while Congress has indeed stretched the permissible limits of its purse power in this instance, the legislature has not violated the Constitution by prohibiting the executive from spending any appropriated funds to transfer non-American Guantanamo detainees to the United States. The analysis will reveal, however, that Congress's funding bans infringed less on the President's military authority as commander-in-chief than on his prosecutorial authority. In the end, this Note raises the question of whether these funding restrictions, even if constitutional, should still be cause for great concern.

1. CONGRESSIONAL FUNDING BANS AND THE PROSECUTION OF KHALID SHEIKH MOHAMMED

   Khalid Sheikh Mohammed, the self-described mastermind of the September 11 terrorist attacks, has been in the custody of the United States since 2003. (17) Mohammed had been on the radar of federal law enforcement ever since his involvement in a 1994 plot to assassinate President Bill Clinton in Manila, and one month after the 9/11 attacks, the FBI added him to its list of the twenty-two most-wanted terrorists. (18) After eluding American forces for over seventeen months, Mohammed was captured during a nighttime CIA raid in Rawalpindi, Pakistan, on March 1, 2003. (19) Mohammed spent the next few years at various secret prisons overseen by the CIA, during which time he was reportedly waterboarded more than 180 times. (20) Around September 2006, Mohammed was transferred to the detention facility at Guantanamo Bay, Cuba, along with thirteen other high-value al Qaeda detainees. (21) Although the George W. Bush Administration had intended to try Mohammed and four other alleged co-conspirators under the Military Commissions Act of 2006, (22) the new Attorney General Eric Holder announced on November 13, 2009, that...