The unreviewable executive: Kiyemba, Maqaleh, and the Obama administration.

AuthorVladeck, Stephen I.
PositionPresidential Power in the Obama Administration: Early Reflections

If Lord Acton was correct that power corrupts, (1) then it should come as no surprise that presidential power tends to corrupt presidents. Especially in light of the current and ongoing threat that transnational terrorism poses to our national security, there are insufficient incentives for presidents of any political stripe voluntarily to accept--let alone champion--constraints on their authority in the name of individual rights. I don't mean to condone this reality, of course, but merely to observe at the outset how unsurprising it is that the Obama Administration has continued many of the more controversial counterterrorism programs begun or expanded during the tenure of President George W. Bush, including initiatives heavily criticized by then-Senator Obama during his presidential campaign. (2)

From military commissions to governmental secrecy, from the detentions at Guantanamo, Bagram, and elsewhere to the increasing use of UAVs to attack--and kill--terrorism suspects around the world, one could fairly draw a number of descriptive comparisons between the national security policies of the forty-fourth U.S. President and those of the forty-third. What's more, such comparisons have increasingly provided fodder for critics at both ends of the political spectrum; an ever-growing number of conservative commentators have found the similarities hypocritical, and just as many liberal observers seem to be taking the analogous nature of the measures as a deeply disheartening reinforcement of the status quo.

My own view, for whatever little it's worth, is that many of the descriptive similarities at the policy level are superficial, and belie far more fundamental distinctions at the constitutional level, where the current administration is far less wedded to claims of unilateral (and indefeasible) presidential power than its predecessors. Thus, the Obama Administration has all-but abandoned one of the hallmark arguments of the Bush Administration--that the President has inherent power under the Commander-in-Chief Clause of Article II (3) to take measures he deems appropriate during wartime, and that congressional attempts to constrain that authority, to the extent they even apply, are unconstitutional. (4)

To similar effect, the current Administration has embraced, rather than objected to, arguments that international law (and international humanitarian law, in particular) have a significant role to play in circumscribing the scope of the President's authority to detain terrorism suspects--and even try them before military commissions. (5) Thus, in al-Bihani v. Obama, in which the D.C. Circuit controversially concluded that the President's statutory detention authority is not meaningfully constrained by the laws of war, (6) the majority's conclusion to that effect went, as Judge Williams charitably described in his concurrence, "well beyond what even the government ha[d] argued." (7)

And although the current Administration has, like its predecessors, vigorously defended the scope of the state secrets privilege, and has challenged a pair of Ninth Circuit decisions taking a more nuanced (and less deferential) approach to executive claims thereto, (8) it has not challenged on constitutional grounds proposed legislation that would circumscribe the privilege--an objection that the Bush Administration raised repeatedly. (9)

To be sure, these distinctions have tended not to produce different results in individual cases. Thus, the current Administration continues vigorously to defend on the merits the detention of those non-citizens still in custody at Guantanamo Bay, just as it continues to defend its authority to try certain of the detainees before military commissions. In addition, thanks to statutes like the Military Commissions Acts of 2006 (10) and 2009, (11) the FISA Amendments Act of 2008, (12) and others, vanishingly few areas remain in contemporary counterterrorism policy in which the President is operating in the face of clear congressional constraints.

As a result, the separation-of-powers disputes that characterized so much of the landscape of national security law during the Bush Administration have given way to cases in which the dispute centers on whether, as Justice Jackson famously put it, "the Federal Government as an undivided whole lacks power." (13) Suffice it to say, though, that if one looks behind the description of the policies at issue in these cases and to their underlying legal foundations, profound differences do exist between the Obama Administration's and Bush Administration's approaches to executive power, almost all of which are, at least in my view, generally for the better.

In the essay that follows, rather than elaborate upon these distinctions, I want to highlight one area in which, both on and beneath the surface, I actually do find disturbing similarities between the arguments of the Obama Administration and its predecessors vis-a-vis executive power: the proper role of the federal courts in detainee habeas cases. In particular, my thesis is that arguments against judicial power in habeas cases are effectively arguments in favor of executive power, since they presuppose that the merits of the petitions--whether the detention of the petitioner is legally authorized--are irrelevant.

In other words, even though it is Congress in the current cases that has purportedly divested the federal courts of jurisdiction (or otherwise constrained their authority), (14) and Congress that has purportedly authorized the underlying detention, the real significance of arguing against habeas review is that it is an argument against a vital check on the Executive's detention power. Indeed, congressional authorization for detention would hardly be necessary if, simply by virtue of the detainee's location or status, the federal courts lacked the power to hear his claims or to provide effective relief. Thus, this essay suggests that a heretofore underappreciated aspect of executive power is that of the anti-judicial (or "unreviewable") Executive--the idea that arguments against judicial power, especially in habeas cases, inevitably reduce to arguments in favor of presidential prerogative.

After laying out this thesis in Part I, Part II turns to three specific cases in which the Obama Administration has continued to contest the habeas corpus powers of the federal courts. The first is al-Maqaleh v. Gates, which raises the question whether the Supreme Court's holding in Boumediene v. Bush--that the Guantanamo detainees have a constitutional right to habeas corpus (15)--applies to individuals held elsewhere, especially at the "BTIF," the Bagram Theater Internment Facility in Afghanistan. Although a D.C. district court judge appointed by President George W. Bush held in April 2009 that non-Afghanis picked up outside of Afghanistan did have a right to pursue habeas relief in the federal courts, the Obama Administration fiercely contested that decision. As this essay went to print, a three-judge panel of the D.C. Circuit endorsed the Obama Administration's arguments, reversing the district court and holding that the Constitution does not require habeas corpus for non-citizens held at Bagram. (16)

Whereas Maqaleh raises the specter of the unreviewable Executive in perhaps its starkest form, the Obama Administration has also defended a pair of 2009 D.C. Circuit decisions identifying narrow limits on the remedial powers of the federal courts even in cases in which, thanks to Boumediene, the Suspension Clause unquestionably applies. Thus, the Administration has both opposed certiorari to review and defended on the merits the D.C. Circuit's decision in "Kiyemba I," which held that the D.C. district court lacked the power to order the release of 17 Uighurs detained at Guantanamo (and held to be no longer detainable as enemy combatants (17)) into the United States. (18) In light of developments that may lead to the mooting of the case, the Supreme Court vacated the D.C. Circuit's decision in March 2010. Nevertheless, in the same brief in which it urged that the case had become moot, the Obama Administration continued vigorously to support the Court of Appeals' reasoning, as well. (19)

To similar effect, the Administration also defended the D.C. Circuit's even more sweeping decision in "Kiyemba II," which held that the D.C. district court exceeded its authority in issuing injunctive relief that would have required notice to the detainee and an opportunity to be heard prior to the detainee's transfer to a third-party country. (20) As in Kiyemba I, the Administration's brief in opposition to certiorari in Kiyemba II suggested quite emphatically that these are matters best left to the discretion of the political branches in general, and to the Executive in particular. (21) Whatever the merits of the government's reasoning, the Supreme Court appeared--however tacitly--to agree, denying certiorari in March 2010. (22)

To be clear, my point in this essay is not to take substantive issue with the Obama Administration's arguments in these cases, even though, to be candid, I find them all deeply troubling (in Kiyemba II, especially). (23) Rather, my goal is to suggest that, in comparing the Bush and Obama presidencies with regard to executive power, a focus on headline-grabbing topics such as military commissions, governmental secrecy, or electronic surveillance confuses superficial similarities with structural ones. On the whole, the Obama Administration has been far less unilateral in its approach to executive power--but with the important and troubling exception of the cases discussed herein.



      One of the more intriguing aspects of Justice Kennedy's opinion for the majority in Boumediene was its almost dogmatic focus on the relationship between the Constitution's Suspension Clause and the separation of powers...

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