Tortured Defenses of Obama's Presidential Power
1:05 PM, Jun 3, 2014 • By ADAM J. WHITE
From 2005 through 2008, legal scholars and Democratic politicians heaped relentless scorn upon the Bush administration for arguing that the president's constitutional commander-in-chief powers superseded statutes that might limit his discretion. And so it is quite interesting to watch the Obama administration and its defenders scramble to justify its own decision to override statutory limits on the transfer of Gitmo detainees after the Bergdahl-terrorist swap.
Defense Secretary Hagel did not hesitate to base the administration's actions in the president's constitutional powers: "We believe that the president of the United States is commander in chief, has the power and authority to make the decision that he did under Article II of the Constitution."
But yesterday, the administration ventured a slightly more subtle approach. Rather than directly declaring the detainee-transfer statute unconstitutional, the NSC explained that President Obama had simply "interpreted" the statute as not applying to this particular detainee transfer:
This "interpretation" of congressional intent strains credulity, for reasons already explained by professor Jack Goldsmith. (Goldsmith, you may recall, received much praise for his criticism of the Bush administration's constitutional arguments, after his stint in the Justice Department's Office of Legal Counsel.)
But even more noteworthy is the fact that this analysis simply repeats the approach of the Bush administration's famous memos on prisoner interrogation (or, as they're often called, the "torture memos"). In 2003, the Bush administration's Office of Legal Counsel prepared a memorandum concluding that statutes banning "torture" should be interpreted as not limiting the president's discretion to authorize the use of severe methods of interrogation in times of war.
Like the Obama NSC's statement, the Bush OLC memo (at pp. 11-14) concluded that applying generally applicable statutes in that particular context would disrupt the proper balance of constitutional power between the president and Congress. And furthermore, the Bush OLC suggested, there was no evidence that Congress actually intended its generally applicable statute to limit the president in this context.
Therefore, to "avoid" the "constitutional difficulty" that would arise from applying the statute against the president's orders, the Bush OLC concluded that the statute must be "construe[d] ... not to apply to the President's detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority."
Recent Blog Posts