Tuesday, December 28, 2010
President Obama last week signed a defense authorization bill that prohibits the use of federal funds to transfer any Guantanamo detainee into the United States, even for the purpose of prosecution in an Article III court.
The provision raises serious separation-of-powers concerns. As David Rivkin and Lee Casey wrote last week in the Wall Street Journal:
The president is the chief federal law enforcement officer and prosecutor. Whether, where and when to bring a particular prosecution lies at the very core of his constitutional power. Conditioning federal appropriations so as to force the president to exercise his prosecutorial discretion in accordance with Congress's wishes rather than his own violates the Constitution's separation of powers.
Peter Margulies came to a similar conclusion writing this fall on Lawfare (but on different legislation):
A congressional limit on transfers for criminal prosecution would upset this careful balance. Prosecutors might well believe that a prosecution in a civilian court for terrorism-related offenses would be the most appropriate path for particular detainees. . . . A bar on civilian trials would also preclude a civilian jury, and make a military commission the sole mode of trial available. Military proceedings can be fair, but a conressional requirement that they be the sole mode of trial for conduct that has already occurred singles out current detainees for harsh treatment, and therefore would violate the Bill of Attainder Clause.
The administration itself raised these concerns just this month. AG Holder wrote to Senators Reid and McConnell:
[The prohibition] is an extreme and risky encroachment on the authority of the Executive branch to determine when and where to prosecute terrorist suspects. . . . [It] would undermine my ability as Attorney General to prosecute cases in Article III courts, thereby taking away one of our most potent weapons in the fight against terrorism. . . . The exercise of prosecutorial discretion has always been and must remain an Executive branch function.