Friday, January 2, 2009

Liptak on Obama's Executive Authority Test

Adam Liptak reports in today's NYT that the new Obama administration will face an early test of executive authority to detain legal U.S. residents as enemy combatants and to hold them indefinitely without charge in Al-Marri v. Pucciarelli.  I've posted several times on Al-Marri, most recently (with links to others) here.

Liptak:

During the campaign, Mr. Obama made broad statements criticizing the Bush administration’s assertions of executive power. But now he must address a specific case, that of Ali al-Marri, a Qatari student who was arrested in Peoria, Ill., in December 2001. The Bush administration says Mr. Marri is a sleeper agent for Al Qaeda, and it is holding him without charges at the Navy brig in Charleston, S.C. He is the only person currently held as an enemy combatant on the mainland, but the legal principles established in his case are likely to affect the roughly 250 prisoners at Guantánamo.

As the article makes clear, the Obama administration could maintain the Bush administration position at the Supreme Court (that the executive has authority to detain lawful U.S. residents indefinitely and without charge), or it could change.  Whatever it does, the Fourth Circuit opinion upholding executive authority looms in the background.  Thus the new administration will need to consider if--and how hard--to press to overturn it. 

The transition team hasn't given us any clues.  And candidate Obama's Q&A with Charlie Savage just over a year ago in the Boston Globe doesn't definitively answer the question.  Here's what candidate Obama said:

I reject the Bush Administration's claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.

And:

The detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional.

Both quotes speak only to "U.S. citizens" (not to noncitizens lawfully within the U.S., like Al-Marri), and the first speaks only to "plenary authority" (not to Article II authority augmented by the AUMF or some other Congressional authorization).

Irrespective of prior statements, it'd be hard politically for President Obama to stay the course and maintain the Bush administration position in the case. 

Whatever the new administration does at the Supreme Court, it has another, closely related problem:  What to do with Al-Marri.  The Bush administration opposes deportation (because it sees Al-Marri as a continuing threat); a criminal case in the Article III courts might be impeded by lack of evidence (if the only good evidence against him was obtained by torture); and continued detention as an enemy combatant is politically nonviable (as above).   

We'll stay on top of this and report any developments.

SDS

http://lawprofessors.typepad.com/conlaw/2009/01/liptak-on-obama.html

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