March 29, 2010
The Administration's Divide Over Presidential Authority Post 9/11
Charlie Savage wrote a piece in today's New York Times detailing the divide in the Obama administration over presidential counterterrorism authority, including detention authority and power to order drone strikes. Savage outlines some of the debates within the administration over whether to maintain, or to modify, the sweeping claims of presidential authority under the Bush administration. On the one hand, Savage reports that some career Justice Department attorneys thought that scaling back the Bush administration's sweeping claims might make it harder to win detainee suits. On the other hand, modifying these claims would help demonstrate a clear break with the Bush administration.
Savage reports that Harold Koh, State Department Legal Adviser, and Jeh Johnson, former Air Force General Counsel and Obama campaign advisor, issued dueling secret legal memos on detention authority in detainee Belkacem Bensayah's case. (Bensayah was arrested in Bosnia, accused of facilitating travel of individuals who wanted to join Al Qaeda, and held at Guantanamo.) Koh argued "that there was no support in the laws of war for the United States' position in the Bensayah case"; Johnson argued "for a more flexible interpretation of who could be detained under the laws of war."
In the end, the administration made some changes to the Bush administration's positions on detention authority, but Savage reports that their significance is disputed:
"I think the change in tone has been important and has helped internationally," said John B. Bellinger III, a top Bush era National Security Council and State Department lawyer. "But the change in law has been largely cosmetic. And of course there has been no change in outcome."
But at a recent American Bar Association event, Mr. Koh argued that the administration's changes--including requiring strict adherence to anti-torture rules and ensuring that all detainees are being held prusuant to recognizable legal authorities--have been meaningful. The United States, he said, can now defend its national-security policies as fully compliant with domestic and international law under "common and universal standards, not double standards."
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