This previously undisclosed document is a five-page summary of an unsigned, unofficial “white paper” developed by the Justice Department’s Office of Legal Counsel. It was written in January 2010 by David Barron, then the acting head of the office and now a federal appeals court judge. I discuss it in Chapter 7, Section 2: “Democrats Get to be President, Too.”
The topic was the so-called Graham Amendment, a proposal Senator Lindsey Graham, Republican of South Carolina, put forth to bar the use of funds to prosecute anyone over the Sept. 11, 2001, terrorist attacks in civilian court. Graham’s idea was essentially to force President Obama to reverse Attorney General Eric Holder’s plan to prosecute Khalid Sheikh Mohammed and four other Guantanamo detainees accused of aiding the Sept. 11 attacks in federal court in New York, leaving Obama and Holder with no option but to return the case to a military commission.
Barron’s conclusions were only tentative, and they were contested by some within the Obama administration legal team – especially by Harold Koh, the State Department legal adviser, who thought it was unduly timid about the president’s constitutional powers as top commander/prosecutor to charge suspects in the venue he thought best. But the white paper, and the internal debate over whether it was correct, represented the first serious engagement by the administration with a legal policy question that would prove to be vexing for the president’s troubled policy goal of closing the Guantanamo prison: to what extent does the Constitution permit Congress to tie the president’s hands when it comes to dealing with wartime detainees – including where to transfer and detain them, where to prosecute them, and when and where to let them go?