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In a new Slate "Jurisprudence" essay, former U.S. Attorney David Iglesias criticizes the White House's invocation of the executive privilege to protect certain communications among the president's advisers. He argues that the Bush administration has stretched privilege beyond the limits of the law. His argument, however, is squarely at odds with the case law on the point.
Iglesias specifically criticizes a June 2007 letter (PDF) from the White House to Sen. Leahy and Rep. Conyers, chairmen of the Senate and House judiciary committees. In that letter, the White House refused to produce documents of Harriet Miers', former counsel to the president, and Sara Taylor's, former deputy assistant to the president and director of political affairs, or to allow them to testify. Instead, the White House invoked executive privilege:
[T]he President was not willing to provide your Committees with documents revealing internal White House communications or to accede to your desire for senior advisors to testify at public hearings. ... [F]or the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch.
Citing the seminal Supreme Court decision on the subject, U.S. v. Nixon, Iglesias responds:
So now, the qualified privilege carved out in the Nixon decision is supposed to cover discussions among advisors that never even speak to the president, and then beyond that to cover even "others ... outside the Executive Branch"?
To be blunt, the answer is, "Yes, at least since 1997."
The U.S. Court of Appeals for the D.C. Circuit squarely decided this issue over a decade ago, in In re Sealed Case (1997). The court held that the executive privilege covered many communications among the president's advisers, even when the president was not a party to the communication, and even when the advisers communicated with non-White House advisers:
[T]he public interest is best served by holding that communications made by presidential advisors in the course of preparing advice for the President come under the presidential communications privilege, even when these communications are not made directly to the President.
Given the need to provide sufficient elbow room for advisors to obtain information from all knowledgeable sources, the privilege must apply both to communications which these advisors solicited and received from others as well as those they authored themselves.
The privilege must also extend to communications authored or received in response to a solicitation by members of a presidential advisor's staff, since in many instances advisors must rely on their staff to investigate an issue and formulate the advice to be given to the President.
As for non-White-House advisers:
In particular, the privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisor's staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.
Thus, contrary to Iglesias' protest, the White House broke no new ground by asserting executive privilege with respect to communications and documents among the president's advisers, even non-White-House advisers. So long as those communications fall within the standards set by Nixon, In re Sealed Case, and progeny, they're protected by the privilege.
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to Boumediene, and it's pretty much like Bush yesterday, only more condemnatory but less direct in raising the possibility of a legislative response that would seek to prevent the protections the court has ordered—absent a valid suspension—from going into effect. Should we start boning up on articles like this one?
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Convictions bloggers Ben Wittes and Deborah Pearlstein just concluded an absolutely terrific panel, "Ensuring Access to Justice for Detainees in the 'War on Terror,' " ably moderated by Judge Marsha Berzon at the American Constitution Society's ongoing annual convention. Deborah Pearlstein's analysis of Boumediene, as well as of Munaf and Omar, just a day after issuance, was breathtakingly comprehensive, clear, and insightful. Ben shared highlights from his forthcoming book, summarizing the existing "imperfect data" on what we know about the Guantanamo detainees. They were joined by Joanne Mariner from Human Rights Watch, who laid out where we can go from here and made a persuasive case for using the federal courts rather than creating a system of preventive detention. (Deborah agreed, and Ben clarified—see Marty's post—that legislation should come only after careful deliberation during the next administration.) And American hero Alberto Mora movingly reminded us that, even putting aside the court's repeated determinations of illegality, the Bush administration's detainee policies have failed miserably, by every measure: fostering detainee abuse and even torture by the U.S. and other nations, creating fertile conditions for the recruitment of terrorists, and undermining the United States' reputation and effectiveness around the world. What a panel!
Earlier today, lunch speaker Sen. Patrick Leahy reminded us what's at stake in the next election and brought the room to thunderous applause when he asked why the Supreme Court upheld the Great Writ of Habeas Corpus by only a vote of 5 to 4.
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continue reading at Balkinization ...
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Both before and after the court's decision yesterday in Boumediene, I wrote that if the Guantanamo detainees are afforded habeas rights, there would be (and is) little reason to consider any legislative response: "B (As David Barron and others have noted, Congress could, of course, try to actually suspend the writ as to a category of detainees, but I'm assuming that there would be little political support in Congress for such a law.)
There are many prominent voices in the current debate, however, that continue to insist that a new statutory framework for detention policy legislative action is imperative—see, for example, the ubiquitous calls for creation of a new "national security court."
One of the most thoughtful such proponents is my co-blogger Ben Wittes, whose forthcoming book is a very well-written, carefully reasoned, and impassioned plea for Congress to step up to the plate, especially on the question of long-term detention.
Similarly, in today's Washington Post, Ben takes stock of Boumediene and comes away with this reaction: "Congress and the executive branch—whether the Bush administration or its successor—desperately need to enact a comprehensive legislative solution to the problem of detentions in the war against terrorism. ... Congress cannot afford to shirk [its] burden any longer."
I must confess (as I have discussed with Ben) that I just don't understand the urgency. It seems to me that, based solely on Ben's own (quite compelling) account of the problems under the Bush detention system of the past six years, Boumediene is a dream come true—an answer to Ben's prayers, a decision that in one fell swoop provides most (but not quite all) of what Ben would have the legislature do.
Let's review check Ben's bill of particulars:
Continue reading at Balkinization ...
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I've not much to say about yesterday's Boumediene decision that hasn't been said elsewhere. But let me add one small point:
Critics of the Bush administration's prosecution of the war on terror often argue that the president's interpretation of the law (either on his own, or with Congress) cannot be left unreviewed by the federal courts. Too often such critics have invoked, preposterously, the specter of King George III.
Justice Kennedy's opinion does not embrace the tone or rhetoric of the Bush administration's more breathless critics, but it does echo (at pp. 35-36) the basic theme that the "political" branches' interpretation of the Constitution cannot be left unreviewed by the courts. The court invokes Marbury v. Madison for the proposition that to defer to the executive or legislative branch's interpretation of the Constitution in this case would give rise to "a striking anomaly in our tripartite system of government."
Indeed, the court goes so far as to suggest (erroneously) that, absent habeas jurisdiction over Gitmo, "it would be possible for the political branches to govern without legal constraint."
Such challenges to the unfettered discretion of the other branches are quite ironic: After all, in Boumediene, the Supreme Court defined—without "check" or "balance" by the other branches—the scope of its own constitutional power to issue the writ of habeas corpus to noncitizens imprisoned in Cuba.
Of course, it's hardly novel for the court to determine the scope of its own power: Article III courts make such determinations quite regularly, by reference not merely to the jurisdictional statutes but also to the constitutional doctrines of standing, ripeness, and the like. Yet, so often since 2001, the same groups criticizing the president's assertion of unreviewed discretion with respect to, say, surveillance or detention issues in the current war are the very same groups that applaud the Supreme Court's assertion of unreviewed discretion with respect to the jurisdictional aspects of, say, Massachusetts v. EPA. (To say nothing of the hell they raise when members of Congress propose to limit the court's jurisdiction by statute.)
Simply put, why do some people applaud the Supreme Court when it asserts unchecked power to define the scope of its own power while they denounce the president (who, unlike the court, is checked by the ballot box, as well as impeachment and the power of the purse) when he attempts to put into effect his definition of the scope of his power under Article II?
Of course, I'm not saying that the court acts improperly when it defines, without a check by the other branches, the scope of its power under Article III or the habeas clause. Hardly. But I'm quite comfortable with the other two branches (or, as the court called them yesterday, repeatedly, "the political branches") giving effect to their own interpretations of the Constitution, too—especially when those two branches are subject to review at the polls.
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My first thoughts in response to the decision can be found here, but I have a few additional observations, largely in response to prior posts.
Marty and Emily are quite right to raise the question of whether the decision yesterday moots the need for legislation on detention. After all, the court has given detainees much of the process I and others have been arguing that Congress should give—at least on the surface. But there are key differences between the new nonstatutory regime and the type of system I would like to see enacted in law. And these differences are, in my judgment, all important.
The most significant difference is that habeas—even under Justice Kennedy's ruling—is a back-end process. While we can expect that in the future it won't take seven years for detainees to get hearings, it will still take a long time; just ask any state court inmate who has litigated a federal habeas case challenging his conviction. Moreover, because the habeas process follows and evaluates the intake review procedure for detention, its density and seriousness—as Justice Kennedy made abundantly clear—depends to a great degree on the integrity of those procedures. Anemic CSRT review will lead to more intense habeas review. Something serious upfront, by contrast, will lead to more deferential habeas review. Again, just ask that state court inmate, for whom the federal courts have developed layer upon layer of doctrinal deference to the procedures that put him away.
The idea of a national security court—at least as I envision it—is to place a serious review mechanism right up front. This would have three very significant benefits both for detainees and for the government over the CSRT-leading-to-habeas scheme that, as of yesterday, is now our national law. The first is that it would allow the innocent detainee a much earlier crack at a neutral tribunal. Instead of waiting around for the government's review mechanisms and then challenging them in court, the court proceeding would become the review mechanism itself. Ask yourself this: Would Murat Kurnaz (or some other probably innocent detainee) have preferred that his CSRT have had reasonable rules and that Judge Joyce Hens Green—who in his habeas case much later raised serious questions about its integrity—have decided as an initial matter whether he was an enemy combatant or not? I think a reasonable detainee caught in a big misunderstanding would prefer a rigorous initial screening.
Second, because the government in my scheme would have gone through a rigorous process upfront, habeas courts—which the government is now constitutionally required to face—would have a serious record to which to defer. So the system would give a lot more certainty to the government regarding what standards, substantive and procedural, it has to meet for a detention to be kosher. Finally, a reasonable legislative scheme would have the court's jurisdiction persist as long as the detention itself persists—something that habeas review does not do. Once a detainee loses his habeas case and appeals, it's over for him—potentially forever. I believe the government should have an affirmative obligation to argue periodically for continued detention. Human rights groups have described proposals for such a detention regime as radical because they contemplate acknowledging in law the obvious fact that America preventively detains people on the basis of dangerousness. As a practical matter, however, what I'm advocating would be generous procedurally even compared with the regime Justice Kennedy has demanded.