Takeover document: Dick Cheney’s undelivered 1989 paper on presidential power and “congressional overreaching in foreign policy”

I’ve posted several primary source documents of interest in Power Wars on this blog, and it occurred to me that I should also make generally available an important primary source document that I dug up when I was writing my first book, Takeover, eight years ago. I had put this up on Document Cloud in 2012, but Google’s search engine is more likely to help people find it this way.

It is then-Representative Dick Cheney’s 42-page paper, “Congressional Overreaching in Foreign Policy.” I discuss this paper in Section 8 of Chapter 3 (“A Cabal of Zealots: 1977-2000”) in Takeover. Basically, in March 1989, Cheney was going to deliver a talk at the American Enterprise Institute about why he thought the executive branch should have sole control of foreign policy. He turned this paper in ahead of the envisioned conference, but he never delivered it. In the meantime, George H.W. Bush’s original nomination of John Tower to be secretary of defense melted down, and the White House asked Cheney to lead the Pentagon instead. So Cheney bowed out, shelving his remarks. I found a brief reference to them in this short Washington Post article by David Broder in 1989, which he found newsworthy in light of Cheney’s nomination, and obtained a copy of the full text during my book research.

I found them fascinating as a key moment in Cheney’s intellectual history, leading to the Bush-Cheney push to expand executive power starting in 2001. The AEI paper grew out of Cheney’s work overseeing the production of the minority report defending the Reagan administration during the Iran-Contra investigation in part on the grounds that the Boland Amendment, which the Reagan administration violated, was unconstitutional.

About 14 months later, Cheney put together this paper. He referred readers back to the legal arguments in the Iran-Contra minority report, but added a normative gloss: he said he wanted to get beyond the legal arguments over the possible meanings of the “parchment document” and explain why, for pragmatic and “real world” reasons, he endorsed an interpretation of the Constitution that gave stronger powers to the president and a lessor role for Congress.



Reactions to the surprising failure of my quadrennial presidential candidate executive power survey

Every four years, before Iowa and New Hampshire, I ask presidential primary candidates to answer a short set of hard questions laying out their understanding of the scope and limits of executive power. Generally the questions get at dilemmas in which the rules are murky and contested. Because he became president, Senator Barack Obama’s answers – and his later departures from a few of the limits he had identified – have proven to be of enduring interest, as I lay out in several moments in Power Wars.

But after great success in 2007 and 2011, this year, as I reported last Sunday, the project was a failure. (When my story went to press, only Rand Paul had answered the questions, although Hillary Clinton had provided a general statement. On Sunday, Ben Carson provided answers.) I laid out some informed speculation about what seems to have changed, which boils down to two takeaways: establishment Republican policy experts are demoralized and marginalized in the face of their party rank-and-file’s embrace of Donald Trump, and Clinton is preparing to govern through unilateral executive action in what is very likely to be an era of continued partisan polarization and Congressional paralysis/”obstructionism.” In that sense, I argued, the very failure of the project this cycle has still told voters some things they need to know.

Today the Concord Monitor in New Hampshire published an editorial about the project’s failure, “Executive Authority Murkiness,” noting that presidents’ use of unilateral executive actions to govern

has increased with congressional paralysis, which has become a political fact of life that’s not likely to change with the next election. So it could be that the candidates didn’t answer because they didn’t want to limit their powers needlessly or because the question has yet to be answered definitively by anyone. Several candidates, including Trump and lawyers Cruz and Marco Rubio, appear to have views on the extent of presidential power that, with less than a dozen days to go before the primary, voters should think about.

This failure of the project has gotten some attention elsewhere, including a couple posts by Scott Shackleford at Reason,Resolved: This Is Not an Election About Restraining the President,” and “Ben Carson Weighs In on Limits to the President’s Power.” He wrote that “It’s a dismaying outcome that will not prompt significant outrage in a presidential cycle that is becoming increasingly full of authoritarian promises.”

I continue to be struck by how different the results were from the last two cycles, when showing oneself to be unwilling (or unable) to answer the questions seemed to strongly correlate with not being a serious candidate.

Specifically, in 2007, the candidates who answered the questions were Joe Biden, Hillary Clinton, Chris Dodd, John Edwards, John McCain, Barack Obama, Ron Paul, Bill Richardson, and Mitt Romney; Rudy Giuliani did not answer them, but – like Clinton this time – at least submitted a general statement drafted by former Office of Legal Counsel head and solicitor general Ted Olson, who was advising his campaign. The only two candidates whom I contacted who didn’t respond at all that cycle were Mike Huckabee and Fred Thompson.

And in 2011, when only the GOP was having a primary, Newt Gingrich, Jon Huntsman, Ron Paul, Rick Perry, and Mitt Romney all answered the questions, while only Michele Bachmann, Herman Cain (who had already dropped out before the deadline), and Rick Santorum did not respond.

But this cycle, as the chart on the first page of the below document set shows, the political moment has proved to be very different:



Eight things the Obama administration did not do because of legal concerns (at least in part)

One of my themes in “Power Wars” is how extraordinarily lawyerly the Obama administration has been in terms of personnel, mindset, and deliberative approach, in contrast to the extraordinarily un-lawyerly Bush-Cheney administration – for better and for worse. When I do book talks – like one last week at the CATO Institute – a recurring question is whether, for all its lawyerliness, the Obama administration ever actually chose to not do something because of legal concerns, rather than just engaging in creative lawyering to get around an apparent obstacle without resorting to crude Bush-like claims of unfettered executive power. But while the book brings to light a number of examples of aggressive lawyering by the Obama team, there are also some counterexamples of legal impediments blocking or disciplining its actions. This blog compiles a list of them.

Before I get to the specifics, the set-up is that Obama and his legal team has been loath to act like Bush in the sense of taking some action based on a claim that the Constitution empowers the president, when acting as commander-in-chief, to disregard a statute. To date Obama has done this only once, in the Bergdahl-Taliban prisoner swap. But the book tells many stories about how Obama lawyers, under pressure from events, came up with statutory interpretations that permitted the executive branch to go forward with a policy that was seemingly barred by a statute, like the foreign murder law and the targeting of Anwar Al-Awlaki (249-252), or the Libya air war and War Powers Resolution’s 60-day limit for congressionally unauthorized “hostilities” (638-649). Such episodes raise the question of whether the two administrations’ very different deliberative styles made any substantive difference or was just a more sophisticated way to facilitate an effectively unconstrained presidency. As I wrote following a description of yet another such case, involving an internal dispute about whether a particular Guantánamo detainee was lawfully detainable:

The episode raised a question about the difference between the Bush and Obama approach to executive-branch lawyering. If the end result was often the same — the president can do something specific he wants to do — does it make a difference if his lawyers got there by tossing off a five-page memo or by agonizing through a hundred-page memo? What is the difference between stretching and creatively interpreting statutes, treaties, and facts … and just saying, The rules weren’t written for this situation and so don’t apply, and the commander in chief gets to do whatever he wants? (151)

And several people have been struck by something I quote John Brennan as saying back in September 2011, as part of a broader off-the-cuff description of the interagency lawyers group:

“I have never found a case that our legal authorities, or legal interpretations that came out from that lawyers group, prevented us from doing something that we thought was in the best interest of the United States to do.” (278)

But all this should not be overread as meaning Obama and his administration never were prevented from doing something they wanted to do because of legal concerns. This is so for several reasons.

First, Power Wars focuses, naturally, on high-profile issues that I was able to bring to the surface. But there almost certainly were many lower-profile proposals in the executive branch bureaucracy that never got far for legal reasons, but were also not significant or fraught enough to become the subject of high-level deliberations among political appointees – this is probably true for the Bush years, too!

Second, as the book shows, legal factors have shaped this administration’s internal deliberations in subtle but important ways, even when they don’t add up to an simple example of we want to do X but we can’t because the lawyers say X would be illegal. The Obama team’s relatively intense interest in thinking about legal authority before they decide what they want to do in the first place has put legal analysis on the table alongside military, diplomatic, political, and other factors, in ways that sometimes steered the deliberations away from legally edgier options, reducing the chances of getting to such an X. In this way, the line between legal constraint and policy choice can be blurry.

And third, the book does show several examples of the administration not doing something it wanted to do for legal reasons – as I wrote, Brennan’s statement was already “obsolete” by the end of 2011.

Here are some examples of the latter two types to consider:

  • Not closing Guantánamo: The biggest and most obvious is that to date, Obama has not carried out his longstanding plan to close the Guantánamo Bay wartime prison by moving the remaining detainees who cannot be transferred to a different prison on domestic soil. Had Congress not enacted a statutory bar to bringing any Gitmo detainees into the United States, he clearly would long since have done so. We’ll see whether this remains an example by the end of his administration, though, since he has been gradually making more assertive constitutional objections to the transfer restrictions as an abstract matter in his signing statements (296-299, 327-332, 671) and saber-rattling about his determination to close Guantanamo maybe even without Congressional cooperation (552-554) — including his chief of staff Dennis McDonough’s comments just this past weekend.
  • Not bombing the Bin Laden compound: When the administration was deliberating in early 2011 about what to do about the CIA’s discovery that Osama bin Laden was likely hiding in a compound in Abbottabad, Pakistan, the first course of action it weighed was far simpler and less risky than the eventual raid: bombing it to smithereens. Because it was in the middle of a residential neighborhood, this raised a question about collateral damage and the law of war or self-defense: how many civilian bystander deaths would be permissible under necessity/proportionality analysis? I report that the lawyers were prepared to sign off on significant collateral damage, given the military advantage of killing Al-Qaeda’s leader, if that was what Obama ultimately decided to do. But the analysis of how much collateral damage would be too much helped focus the conversation on the fact that there would be a lot of civilian deaths, which also had policy implications. This steered the deliberations toward a different course of action. (pp 260-261)
  • Not keeping Daqduq in American custody: At the “end” of the Iraq War in 2011, when the United States was getting rid of its wartime detainees in Iraq, the administration wanted to find a way to keep its last one, a Lebanese Hezbollah operative named Ali Musa Daqduq, incarcerated, but could not find a legal way to do so and ending up turning him over to the Iraqi government, which eventually, as feared, released him. (pp 482-485)
  • Not targeting al-Farekh: In late 2012 and 2013, the military and the intelligence community wanted to approve the targeted killing of a Pakistani-based al-Qaeda militant, Mohanad Mahmoud al?Farekh. Were he a normal militant, this would have happened. But al-Farekh was born in the United States, making him an American citizen. He did not come to this country to work like many immigrants from that area of the world do. He never had to complete an i693 form to prove his health and went through none of the same rigorous checks that many people that wish to live in the U.S do. The administration legal team wrestled with whether he met the same standards that had earlier led it to approve the killing of Anwar al-Awlaki, another citizen deemed a terrorist whose capture was infeasible. The lawyers never signed off on targeting al-Farekh, and he was never targeted. (He was captured alive in 2015.) (pp 286-287)
  • Revealing, at last, the role of warrantless surveillance in evidence presented in certain criminal cases: In the summer of 2013, after a push by Solicitor General Donald Verrilli, the Department of Justice decided that it had to start notifying at least some criminal defendants in national security cases when they faced evidence derived from the FISA Amendments Act warrantless surveillance program, despite objections from national-security prosecutors that this could make the intelligence community unwilling to share important information with the department. Although questions remain about how fulsomely the department is interpreting its notice obligations even now, this change mattered because it has belatedly set up an opportunity for the regular judiciary to review the constitutionality of that law. (pp 559, 586-593)
  • Not unilaterally bombing Syrian forces for using chemical weapons: In the summer of 2013, Obama wanted to bomb Syrian forces for crossing his “red line” and using chemical weapons, but then stopped on the verge of doing so unilaterally and instead sought Congressional authorization for any use of military force. While his administration did not concede that prior permission from Congress was legally necessary, it was clearly the legal concerns about the proposed operation articulated by his legal advisers that pushed him to make that decision. (Congress never acted on his request; the crisis was instead resolved diplomatically with a Russia-brokered deal to remove the remaining chemical weapons from Syria.) (pp 630-631, 650-654)

Power Wars also looks, in chapter 12, at Obama’s record on executive power in domestic policy, mapping out his evolution from trying to be the president who respected and worked with Congress to being the president who boasted that he was taking unilateral executive actions to get around what he saw as Republican obstructionism. Although mainly a story of sharply escalating aggression as the foil shifted from Bush to the post-Tea Party Republican Congress, that section has counterexamples, too:

  • Continuing to enforce DOMA: Obama kept enforcing the Defense of Marriage Act, the statute barring federal recognition of same-sex marriages that were legal at the state level, until the Supreme Court issued a definitive ruling striking it down in 2013, even though starting in 2011 he had refused to let the Justice Department keep defending that statute in court after he decided it was probably unconstitutional. (pp 655-656)
  • Not including parents of ‘Dreamers’ in DAPA: Despite pressure from immigration activists, when the Obama administration put together the 2014 “Deferred Action for Parents of Americans” program shielding millions of undocumented immigrants from deportation, it decided not to include parents of so-called “Dreamers.” These were the non-citizens previously granted deferred action and eligibility for work permits because they arrived in the United States as children, under Obama’s smaller Deferred Action for Childhood Arrivals program in 2012. The reason DAPA did not include their parents is that the Office of Legal Counsel said that proposal would go too far. The idea was that parents of citizens are eligible to apply for permission to stay under existing immigration law, but not parents of non-citizens — even those granted temporary status. So drawing the line there for where Obama’s lawful power of prosecutorial discretion stopped reflected the structure of immigration law as Congress had enacted it. (pp 659-666)

 

More on my discussion with Stephen Griffin on Republicans and the Myth that Every President Since Nixon has Declared the War Powers Resolution’s 60-Day Clock to be Unconstitutional

Stephen Griffin and I have been discussing the myth that all presidents since Nixon have deemed the War Powers Resolution’s 60-day clock to be unconstitutional. (Griffin #1, me #1, Griffin #2, and now this from me.) In sum, we agree it’s a myth because Democratic presidents have taken the opposite position, but we disagree about whether post-Reagan Republican administrations’ hostility to the provision rose to the level of those three presidents consistently taking the position that it was unconstitutional (Griffin’s view), or whether it instead merely amounted to hints and largely behind-the-scenes mutterings by legal advisers, in which case no actual precedent for the proposition that the 60-day-clock is unconstitutional has yet to be established under presidents of either party (my view).

We may be running out of steam, but I want to make three points.

First, the most important marker here is Reagan’s signing statement in 1983 about Lebanon, which Griffin’s original blog post described as “taking the position” that the 60-day clock is unconstitutional. I’d like to point out that in his 2013 book, Long Wars, Griffin describes that signing statement much less definitively and closer to my view that it stopped short of affirmatively taking a position. Specifically, on page 173, he writes that Reagan “appeared to suggest that the statute might infringe on his powers as commander in chief” (my emphasis). So I agree with his earlier formulation!

Second, in his latest post, Griffin also brings up a 1987-88 operation in the Persian Gulf in which Reagan dispatched the navy to escort oil tankers toward the tail end of the Iran-Iraq War. The American naval vessels were at risk of being hit by an Iranian mine or missile. The Americans also occasionally fired, including on an Iranian helicopter suspected of laying mines in 1987. (To say nothing of the Americans mistakenly shooting down a civilian Iranian airliner, killing 290 people, in 1988, after the WPR dispute had run its course.) Griffin says this didn’t register as a WPR 60-day-clock precedent because “it’s pretty clear Republicans already believed the WPR was unconstitutional.”

My take: There was a WPR dispute about this operation, but  it was another example of a dispute over when the statute applied, not an instance in which Reagan acknowledged that the provision applied but acted in defiance of it based on a constitutional theory. The Reagan administration claimed that sending American naval ships to escort tankers did not constitute the sort of hostilities covered by the WPR, so it provided no WPR notice to Congress in the first place (the 60-day clock starts ticking when such a notice is made). This article in the New York Times from 1987 makes this clear:

Some experts say the law is less useful in ”gray areas,” such as the Persian Gulf, where the United States decision to escort oil tankers does not fall under usual definitions of war.

”When you get to a real war question, such as sending troops to Nicaragua, the War Powers Act is a powerful instrument in the political process,” said Fred Wertheimer, president of Common Cause, the public affairs lobby.

But there is wide agreement in both branches of Government that the Persian Gulf crisis has illuminated some serious flaws in the War Powers Act, and one prime problem is when the measure actually applies.

To many Administration critics, all doubts about the law’s relevance were erased last month when a United States helicopter fired on an Iranian ship that it said was laying mines. ”If that’s not being involved in imminent hostilities,” Senator Sasser complained, ”I don’t know what is.”

The Administration itself was divided, with Howard H. Baker Jr., the White House chief of staff, arguing that the law did apply to the Gulf. But he was overruled, and one senior official said the White House position now is that ”the situation in the Persian Gulf does not justify notification under the War Powers Act.”

Third, Griffin suggests that media reports in New York Times (from a generation ago) contributed to the larger misimpression that all presidents have taken the view that the 60-day clock is unconstitutional. In his latest blog item, Griffin observes that in the 1980s the executive branch (starting with Reagan’s 1983 signing statement about Lebanon) “began pushing back against what were seen as congressional encroachments in matters of national security.  This resulted in some NYT articles (as I remember written by Stuart Taylor) that contributed to the idea that presidents had generally rejected the WPR.”

That’s interesting, and he may be right that oversimplified or sloppy reporting was a contributing factor. I decided to look up the article(s) to see what they said, just to explore the topic. So the rest of this blog post is no longer a rebuttal to Griffin — it’s just looking at what NYT articles from the 1980s said.

It may be Griffin is remembering this 1983 article by Taylor about whether the Grenada invasion was legal, because none of the others in the NYT archives with Taylor’s byline and the words “War Powers Resolution” seems remotely on point. But it may also be that Taylor didn’t write the one Griffin is recalling at all, because this article doesn’t say anything about other presidents. The only relevant bit is about 2/3 down. After describing how Reagan notified Congress about the invasion “consistent with” the WPR but didn’t use the language for when the 60-day clock is triggered, echoing Reagan’s earlier squirrely approach with whether the WPR applied to peacekeeping forces in Lebanon, Taylor obliquely references the Reagan signing statement about Lebanon like this:

Mr. Reagan’s failure to refer to ”hostilities” resembles his recent refusal to acknowledge or report that the marines in Lebanon were involved in ”hostilities” within the meaning of the 1973 resolution, and his suggestion that the 90-day [sic] limitation was unconstitutional.

Notably, in Long Wars, Griffin makes a similar argument about NYT articles contributing to this misunderstanding but instead cites two articles by other reporters. To wit, also on page 173, he wrote:

Ignoring the Carter OLC opinion that the WPR was constitutional, the Reagan and Bush I administrations took the line that every president since Nixon had challenged the constitutionality of the law while in office, the sixty-day clock in particular.[119] While the record was far more complex than indicated by this simple statement, it was so widely reported in the press that the notion was difficult to debunk.[120]

[119] This is reflected in newspaper stories of the period. See Wayne King and Warren Weaver Jr., “Briefing: Department of Hostilities,” N.Y. Times, March 29, 1986; Steven V. Roberts, “War Powers? What War Powers?,” N.Y. Times, Oct. 6, 1987

[120] Barron and Lederman, “History,” at 1070 n. 529 [PDF 131 here]

One of these articles Griffin’s endnote 119 cites is the one I just quoted above, about the 1987 tanker escort operation. In that article, Steven Roberts did indeed remark in passing that “All Presidents since Mr. Nixon have challenged the constitutionality of the law.”  I would put this remark in the category of oversimplifying the WPR as a single thing whose constitutionality may be in doubt, when it’s really a collection of different provisions. See my first post about how just because Section 2 and its purported limits on the initial introduction of forces into combat has been challenged, that doesn’t mean Section 5(b)’s 60-day-clock is also unconstitutional.

The other article Griffin’s endnote 119 cites, the March 29, 1986, one by King and Weaver, was about a dispute between the Reagan administration and the (Democrat-controlled) House Foreign Affairs Committee about Reagan’s unilateral decision to send aircraft carriers into the Gulf of Sidra, leading to an exchange of missiles with forces of Libya, on March 23-24, 1986. Libya’s leader, Muammar Gaddafi, was trying to claim 62 nautical miles out as its territorial waters rather than the usual 12 nautical miles from a nation’s shore, triggering a freedom-of-navigation dispute not unlike what is happening off the coast of China today.

The question was whether this amounted to introducing forces into “hostilities” of the sort that required advance consultation with, and notice to, Congress, under Section 2 and 4 of the WPR. (If it did, and the operation was still happening two months later, then that would raise a clock issue at that time. But the operation was over within a few days. So this dispute was instead sparked by Reagan’s failure to consult Congress ahead of time and provide a formal WPR notice about it.)

The King and Weaver article says:

The War Powers Resolution, passed over a Presidential veto, was a reaction to the undeclared war in Vietnam and was intended to limit Presidential discretion in sending American troops into hostilities without consent of Congress. Opposed by every President since it was enacted, it says the President must consult with Congress before introducing the armed forces ”into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.”

The Foreign Affairs Committee complained in a letter to the White House that sending the Sixth Fleet into the Gulf of Sidra, fully expecting a military reaction from Libya, constituted just such a situation.

But yesterday, in a letter to the committee signed by William L. Ball, assistant to the President, the Administration said it did not believe that ”the resolution was intended to require consultation before conducting naval maneuvers in international waters or air space” – an interpretation that would eliminate roughly two-thirds of the world from provisions of the resolution if the action was characterized as ”maneuvers.”

The letter said that the question had been ”carefully considered” and that Administration lawyers had concluded, ”The operations did not place United States forces into hostilities or into a situation where imminent involvement in hostilities was clearly indicated by circumstances.”

So: First, this was, obviously, another dispute about statutory interpretation — whether the WPR applied to the situation at hand, not whether some or all of the WPR was unconstitutional. Second, it was not about the 60-day clock provision.

Finally, obviously, saying that every president has opposed a law is not the same thing as saying that every president has considered that law to be unconstitutional; one can oppose something as a bad idea and even think Congress should repeal it — like supporting the unsuccessful 1995 attempt to repeal the WPR — without also thinking that Congress had no constitutional authority to enact it in the first place. But Griffin may be right that ordinary readers might not catch that distinction, so this could also have been a contributing factor in the rise of the myth.

At this point I doubt anyone other than the two of us are still paying attention, so I’ll stop nerding.

Republicans and the Myth that Every President Since Nixon has Declared the War Powers Resolution’s 60-Day Clock to be Unconstitutional

Last week, over at Balkinization, Stephen Griffin took issue with a brief passage in my book Power Wars. In chapter 12, I tell the story of the Obama administration’s internal fight and agonies over the War Powers Resolution’s 60-day limit for unauthorized hostilities during NATO’s 2011 air war in Libya. Congress appeared to be unable or unwilling to vote for an authorization at that political moment, and Obama, for operational reasons, did not want to stop American fighters and drones from being able to fire missiles at pro-Gaddafi forces. But he and his legal team also did not want to become the first administration to declare the 60-day clock law to be an unconstitutional constraint on the president’s commander-in-chief powers — even though some members of Congress (including Boehner and McCain) thought that it was, and even though taking that position would have solved their problem. Instead of creating such a constitutional precedent, they came up (to both internal and external controversy) with a narrow interpretation of the term “hostilities” under which the clock provision did not apply to what the U.S. was doing over Libya. In setting up that dilemma, I noted that “There is an oddly widespread myth that every president since Nixon has declared this limit to be unconstitutional. This is simply false.”

Griffin agrees with me that it is false when people say (as people, including some who should know better, weirdly do, over and over) that all presidents since Nixon have declared the 60-day clock to be unconstitutional. But he maintains that a partisan split has emerged, and “Republican presidents, starting with Reagan in 1983, have indeed taken this position consistently.  I demonstrate this at length in [his 2013 book] Long Wars. In other words, the available evidence supports the proposition that the two parties disagree over the scope of presidential war powers and this has created a bifurcated legal reality.”

Griffin had said something similar in a blog post in 2011 on Balkinization, responding to something similar I had written in the midst of the Libya controversy. I don’t think he and I actually disagree about much – it boils down to what it means for a president or administration to actually declare something or affirmatively take a position or even establish a precedent, versus just sort of grumble about something vaguely.

In this post, I explore the issue more deeply. I’ve also curated a set of relevant documents, which I include at its end.

Preliminary matter #1: historical contingency

For the most part, the issue has not come up very often. Presidents got authorization for major wars (Gulf War, Afghanistan/Al Qaeda, Iraq). Most minor wars or combat was over long before 60 days (invasions of Grenada and Panama, one-off bombings like Libya in 1986). And, in the case of peacekeeping operations like Somalia, presidents maintained that fighting was too intermittent to count as the sort of “hostilities” that triggered the clock. The big outliers were Clinton’s Kosovo air war in 1999 and Obama’s Libya air war in 2011, both of which were resolved with the administration making a disputed statutory interpretation rather than a constitutional override claim.

Preliminary matter #2: when people say the “War Powers Resolution” is unconstitutional, it’s important to clarify what they’re talking about specifically.

One source of confusion about the War Powers Resolution is that the act contains several parts that people sometimes get sloppy and conflate.  Even if some parts of the WPR are unconstitutional, that doesn’t mean that other parts are unconstitutional. Here are three distinct parts to focus on:

  • The statute created by Section 2(c) says presidents may only introduce forces into hostilities after Congress has declared war or authorized force by statute, or if the United States has been attacked. No president has respected that narrow list of when he may unilaterally dispatch forces into combat, so it is fair to say that every president has considered this purported rule to be an unconstitutional constraint on commander-in-chief powers.
  • The statute created by Section 5(c) says Congress can direct a president to withdraw troops from any specific combat mission even before the 60-day clock has run out by passing a concurrent resolution – that is, something a president would have no opportunity to veto. Since the Supreme Court’s landmark 1983 decision INS v. Chadha, it has been clear that this provision is unconstitutional.
  • But even if those provisions are unconstitutional, that does not mean that the 60-day clock provision – the statute created Section 5(b) – is invalid. This is the provision which automatically requires presidents to terminate a combat operation after 60 days if Congress has not acted to authorize it. Nixon said it was unconstitutional in his veto message, but Congress overrode his veto and enacted the resolution into law anyway.

So what has the post-Nixon executive branch said about the 60-day clock provision?

THE 1980 OLC MEMO

The starting point is that in 1980, the Justice Department’s Office of Legal Counsel concluded that the clock is constitutional:

We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed forces as required by the provisions of [section 5(b)] of the Resolution. The Resolution gives the President the flexibility to extend that deadline for up to 30 days in cases of “unavoidable military necessity.” This flexibility is, we believe, sufficient under any scenarios we can hypothesize to preserve his function as Commander-in-Chief. The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our armed forces abroad. We cannot say that placing that burden on the President unconstitutionally intrudes upon his executive powers. Finally, Congress can regulate the President’s exercise of his inherent powers by imposing limits by statute.

O.L.C.’s legal analysis is binding on the executive branch unless its interpretations are overruled by the attorney general or the president.  No subsequent administration has revoked that memo, so in that very important sense the view that the 60-day clock is constitutional has remained consistent executive branch law throughout the Reagan, Bush-Quayle, Clinton, Bush-Cheney, and Obama administrations. And throughout that time, no president of either party has declared that he was violating the 60-day clock as an exercise of any constitutional authority to override it.

So what is Griffin’s objection?

Griffin overlays an observation about partisan disagreement to this pattern. He  claims that the executive branch under subsequent Republican presidents – though not Democratic ones – essentially ignored this Carter-era O.L.C. memo and instead took the position that the 60-day clock was unconstitutional. His larger point is that “the question regarding adherence to the sixty day limit can arise meaningfully only when a Democrat occupies the White House” because no Republican president even cares about it.

In support of this objection, he points to three specific moments that indeed complicate this pattern: one in the Reagan administration, one in the Bush-Quayle administration, and one in the Bush-Cheney administration. These three moments, he contends, show that Republican presidents have consistently taken the position since 1983 that the 60-day clock is unconstitutional.

Just as Griffin thinks I oversimplified a bit by failing to note that GOP administration legal teams have been hostile to the 60-day-clock, I think he overstates a bit by portraying this hostility as rising to the level of GOP presidents actually declaring or taking the position that it is unconstitutional. Let’s look at each in turn.

THE 1983 REAGAN SIGNING STATEMENT

In 1982, Reagan dispatched troops to Lebanon to serve as peacekeepers. The following year, things were heating up, and leading lawmakers thought the troops were in sufficient danger that the mission counted as the sort of hostilities that needed authorization. After negotiation with the White House, Congress passed the “Multinational Force in Lebanon Resolution,” which Reagan signed on Oct. 12, 1983. In this bill, Congress declared that the 60-day clock had started ticking on Aug. 29, when two Marines were killed and 14 others injured during fierce fighting in Beirut, while authorizing the mission to continue for 18 months, by which time the United States was to have pulled its forces out.

The Reaganites did not like this intrusion by lawmakers into his foreign policy. (But they were very happy to have been forced into this a few weeks later when a suicide bomber killed 241 servicemen in Lebanon; when congressional critics began blaming Reagan for sending them there, administration defenders like Rep. Dick Cheney could point out that Congress now shared political responsibility for their presence.) When Reagan signed the resolution, he issued a signing statement making reservations about some of Congress’s expressions about WPR issues that he deemed “debatable.”

Reagan couched his objections partly in statutory interpretation terms, saying he did “not necessarily join in or agree with” Congress’s statement that the 60-day clock had been triggered on Aug. 29 because “I would note that the initiation of isolated or infrequent acts of violence against United States Armed Forces does not necessarily constitute actual or imminent involvement in hostilities, even if casualties to those forces result.” He also made policy objections to existence of the 60-day clock, explaining why he thought an “arbitrary and inflexible” 60-day deadline was an “unwise” limitation on American foreign policy.

But, importantly, Reagan also suggested that the 60-day clock might be unconstitutional, by making clear that his signature on the bill did not amount to any acquiescence to Congress’s view of the law and Constitution:

I believe it is, therefore, important for me to state, in signing this resolution, that I do not and cannot cede any of the authority vested in me under the Constitution as President and as Commander in Chief of United States Armed Forces. Nor should my signing be viewed as any acknowledgment that the President’s constitutional authority can be impermissibly infringed by statute, that congressional authorization would be required if and when the period specified in section 5(b) of the War Powers Resolution might be deemed to have been triggered and the period had expired, or that section 6 of the Multinational Force in Lebanon Resolution may be interpreted to revise the President’s constitutional authority to deploy United States Armed Forces.

These two sentences, tossed off in a signing statement and lacking any supporting legal analysis, are the most extensive negative analysis the executive branch has issued in public regarding the constitutionality of the 60-day clock.

Importantly, this comment falls short of an actual affirmative proclamation by Reagan that the clock is unconstitutional. And Reagan did not actually act contrary to the provision, establishing an historical precedent. Instead, in this very bill, he secured authorization from Congress within the 60-day period as Congress saw it, bringing his mission into compliance with the clock. Interestingly, Reagan’s Office of Legal Counsel was working on an authoritative memo analyzing another aspect of WPR (whether deploying CIA paramilitary forces counted) that it completed that same month, so it had an excellent opportunity to reconsider and revoke the 1980 opinion at that very moment and did not do so.

THE 1990 BUSH WHITE HOUSE COUNSEL MEMO

Griffin also points to an internal memo to George H. W. Bush from his White House counsel,  C. Boyden Gray,  on Aug. 7, 1990. It analyzed various legal issues raised by the possibility of acting unilaterally to push Saddam Hussein out of Kuwait, versus getting a declaration of war from Congress. Gray’s letter touches on the 60-day clock in one paragraph, and dismisses it as unconstitutional in an aside:

A declaration of war would have limited effect under existing statutes. It would fully satisfy the requirements of the War Powers Resolution, thereby eliminating the need to report certain force deployments to Congress and providing congressional authorization to continue deployments into hostile situations for more than 60 days. A joint resolution of Congress would also provide authorization to continue such deployments, however, though the requirement that certain deployments be reported to Congress would remain in effect. In the absence of either a declaration of war or a joint resolution, we would be subject to both the War Powers Resolution’s reporting requirement and its requirement – which we regard as unconstitutional – to terminate deployments into hostile situations after 60 days.

 

Who’s “we?” What’s the theory? What about O.L.C.’s contrary analysis, still on the books from 1980? Gray’s memo doesn’t say.

In any case, Bush never proclaimed this view publicly, and he ultimately sought and obtained congressional authorization for the Gulf War early in 1991. So the public only found out that Gray had written this many years later.

Back during the lead-up to the Gulf War, as Griffin notes in his book’s footnotes, Gray also made an interesting comment in a December 1990 memo to Bush’s chief of staff about the realpolitik problems raised by actually challenging the provision. Gray first noted that the administration had couched its WPR notifications to Congress about the troop build-up in Saudi Arabia in a way to avoid triggering the 60-day clock, because once it was triggered, the executive branch “would be required” to terminate the mission in two months. Then, he added:

We believe that the War Powers Resolution is unconstitutional insofar as it purports to allow Congress to compel the withdrawal of U.S. forces through inaction, but no President has wanted to jeopardize congressional support for his actions by defying the Resolution. It often falls to Executive branch lawyers to develop a legal theory permitting the President to avoid triggering the clock.

I think this observation by Gray dovetails with my view that while GOP administration legal teams did not like the 60-day-clock, no GOP president has actually taken the position that it was unconstitutional and their administrations have always instead couched what they were doing as acting consistently with it. Hence Obama’s dilemma in contemplating becoming the first president to actually proclaim it unconstitutional and openly defy it on claimed constitutional grounds.

THE 2002 YOO TESTIMONY

In April 2002, the Senate Judiciary Committee held a subcommittee hearing on the topic of “Applying the War Powers Resolution to the War on Terrorism.” Since Congress had enacted an authorization for the use of military force (AUMF) against the perpetrators of the 9/11 attacks, this was a largely theoretical topic. John Yoo, then a deputy assistant attorney general in the Office of Legal Counsel (and the author of many then-secret memos asserting vast executive powers to act in defiance of statutory constraints in a national-security matter) testified at the hearing. Yoo said:

This administration follows the course of administrations before us, both Democratic and Republican, in the view that the President’s power to engage U.S. armed forces in military hostilities is not limited by the War Powers Resolution. The sources of presidential power can be found in the Constitution itself. And I shall discuss both the War Powers Resolution and the Constitution in today’s hearing.

However, pretty much all of Yoo’s testimony that follows is about Section 2 of the WPR, and whether the president needed congressional authorization to initiate hostilities against Al Qaeda. He never specifically addressed Section 5(b), the 60-day clock. That said, I have no doubt that Yoo believes that the clock is unconstitutional, too, and that if asked, he would have produced an opinion saying so. That might have become the occasion for the executive branch to withdraw the 1980 O.L.C. opinion and substitute one saying the opposite. But because of the AUMF, there was no need to ask him to destroy it.

So what do I think?

I stick to my statement that despite discombobulated claims that every president since Nixon has declared the WPR’s 60-day clock to be unconstitutional, in fact none has. But I also agree with Griffin to a significant extent:  it’s clear that behind the scenes, the legal advisers to Republican administrations, starting with Reagan, believed it was probably unconstitutional, even if they never grappled with the question seriously enough to commission a new Office of Legal Counsel memo or to revoke the existing one. This is explained by historical contingency: there was never a need, in practice, to deal with it.

Nevertheless, despite the strong hint in Reagan’s signing statement, the hostility on display in Gray’s memo to Bush 41, and the implications in Yoo’s testimony, none of those three presidents actually proclaimed the clock to be unconstitutional, nor acted in clear defiance of it. Thus, while some president may yet simply declare the 60-day clock provision to be an unconstitutional constraint on his or her commander-in-chief powers and act in clear disregard of it, there is currently no precedent for such an event.

In sum, my dispute with Griffin, to the extent it is a dispute, is about what counts as taking the position or declaring that the 60-day-clock is unconstitutional, versus merely muttering under one’s breath about it.

[12/17/15 – I have revised bits of this post for clarity-CS.]


All Kinds of New Info About Bergdahl-Taliban Deal, including excerpts from the HASC report

An important moment in Power Wars is the May 2014 prisoner exchange deal in which the United States sent five high-level Taliban detainees to live under monitoring and travel restrictions in Qatar to secure the release of Sgt. Bowe Bergdahl, America’s only prisoner of war in Afghanistan, who had been held in horrific conditions by Islamist insurgents for five years. I cover it in Chapter 10, Section 15: “Violating the Transfer Restrictions to Save Bergdahl,” page 519-523.

Today, coincidentally, separate tranches of new information have become available each half of the deal from this complex episode.

This morning, the podcast “Serial,” by the “This American Life” people, posted the first episode of their second season, which turns out to be about the Bergdahl case. It is centered around 25 hours of interviews between Bergdahl and Mark Boal, who is best known as the screenwriter of “Zero Dark Thirty” and “The Hurt Locker.” In this first episode, Bergdahl describes a bit of what it was like to be held in Taliban custody – including a grim bit about how his mind was breaking down during a period when he was held in continual complete darkness – and talks about his motivations in walking away from his base without permission: what he was thinking when he decided to do it (he says he was trying to draw attention to problems in his unit, a story that the investigating general concluded was truthful but delusional), and what he was thinking as he got away from the base and realized he was in over his head, and how he ended up getting captured. I strongly recommend listening to it – fascinating stuff.

Separately, the Republican staff on the Housed Armed Services Committee have released a roughly 100-page report detailing their oversight investigation into the circumstances of the Taliban 5 transfer. I obtained an advance copy and wrote an article describing it – and Democrats’ rebuttal – that the New York Times published last night. (The report cites Power Wars several times.)

The report is valuable for two reasons. First, it provides a rebuttal to the administration’s arguments that the 30-day notice provision of the transfer restrictions was unconstitutional, at least as applied. The executive branch spelled out that argument in a back-and-forth with the GAO last year (I earlier posted those documents on this blog) and the GAO did not engage with it, so it has stood uncontested in any formal way. Now the public can view an articulation of the arguments from both points of view.

Second, it discloses many new historical details about what the administration was doing  during in the six months leading up to the swap, as then-DOD general counsel Stephen Preston picked up on what his predecessor, Jeh Johnson, had explored with the Qataris and eventually pushed the deal through to completion. At the time, the administration was pretending, both to reporters and to Congress, that nothing significant had changed about the prospect of such a trade, which had floated in on-again, off-again talks for several years. It quotes from many internal emails and closed-door testimony about how the talks progressed and unusual bureaucratic maneuvers in preparing for the transfer, which adds a lot to the publicly available history of how this episode unfolded. Here are some excerpts that jumped out at me:

  • Preston, who was confirmed as DOD general counsel in October 2013, went to Qatar in December 2013 with then-Secretary Chuck Hagel and, among other things, met with the Qatari attorney general where they discussed reviving the lapsed idea of sending the Taliban Five to Qatar in exchange for Bergdahl, and what security conditions Qatar would impose. Preston wrote in an email back to colleagues: “Our meeting with the AG earlier today went reasonably well. . . . there were no disagreements, and we achieved our immediate objectives: signaling to the third party [the Taliban] our interest in pursuing this matter and confirming the host government’s [Qatar’s] willingness to commit to the previously negotiated terms and assurances, subject to further discussions with the third party.”
  • On the US’s behalf, the Qataris asked the Taliban for a “proof of life video” of Bergdahl, which arrives in January.
  • “Between January 10 and February 11, 20114, Cabinet secretaries from involved agencies meet at least once in a “Principals Committee” and the second- in-command for each gather one or more times in interagency “Deputies Committee” to discuss the MOU and swap.”
  • The press was reporting rumors that a Bergdahl-Taliban swap was in the air again. The White House demurred, stating (accurately, but misleadingly) that there were no “direct” talks with the Taliban. Similarly, when congressional staff reach out to the Pentagon, they are left with the misimpression that nothing new of significance was happening.
  • The US was talking to the Qataris, and the Qataris were talking to the Taliban, but on Feb. 23, the Taliban told the Qataris they weren’t interested for murky reasons.
  • By April 10, 2014, Preston was back in Doha to try again. Sticking points included whether the security arrangements (surveillance of their phone calls, a ban on letting the Taliban Five travel abroad or engage in raising funds for the Taliban or encouraging militant activity) would last only a year, and whether the Qataris could extend that time when the year was up. (This is what has happened.)
  • When Preston thought they might be on the verge of a deal on May 2, 2014, he wrote this in an email to colleagues back in Washington, referring to the Office of Secretary of Defense (OSD), the secretary’s staff (the secretary of defense “front office” or “SD/FO”), the relevant congressional committees (“overseers”), the Afghans (“As”), and the forthcoming prisoner exchange (the “next phase”): “There is great concern all around about possible leaks—not from OSD, I might add—as this phase of the discussion ends and we seek to proceed expeditiously with the next phase. (This concern is exacerbated by the prospect of notification to our overseers and/or the As.) There is some thought being given to necking down the group in on development going forward. Please act accordingly. I have informed SD/FO.”
  • “The Qataris, too, emphasized secrecy. On May 5, the State Department forwarded to Mr.
    Preston the text of a message received from a Qatari interlocutor: ‘As we agreed, it is very important to keep this agreement secret and on a need to know base [sic] only. To be more clear: for the sake of the success of the deal, this secrecy should continue up to the time of the actual transfer. At that time we can agree on the proper way to deal with the media.'”
  • On May 6, 2014, Preston sought guidance from the Justice Department’s Office of Legal Counsel on “whether proceeding with the transfer of detainees without 30-days’ notice to Congress might be lawful given the extraordinary circumstances at issue here—in which providing 30-days’ notice would put into peril the life of a service member in captivity.” Shortly thereafter, DOJ said the president’s constitutional authority would permit the transfer to proceed without the notice.
  • On May 11, the Qataris relayed a request from the Taliban to add a sixth detainee to the deal, which the Obama administration rebuffed. (The original talks in 2011 had contemplated six, but one of them had since died of a heart attack at Gitmo.)
  • “On May 12, the Qatari attorney general and three other Qatari officials attended the MOU [memorandum of understanding about surveillance and travel restrictions for the Taliban Five] signing ceremony. It was held in the ornate Indian Treaty Room in the Eisenhower Executive Office Building adjacent to the White House. Mr. Preston (who affixed his name on behalf of the Department of Defense), Mr. Dumont, Navy Admiral James A. “Sandy” Winnefeld, Jr. (the Vice Chairman of the Joint Chiefs of Staff), two National Security Council staffers, and a State
    Department official attended.86 Afterwards, the entire party dined at the nearby Metropolitan Club.”
  • On May 14 there was another deputies committee meeting about the matter.
  • “In this period [around the time of the deputies committee meeting], the American negotiators also learned from the Qataris their impression that Sgt. Bergdahl’s health was declining, that the Taliban’s interest in keeping Sgt. Bergdahl alive was diminishing, or the captors’ enthusiasm for a swap was waning. “Time is not on your side,” Mr. Dumont said the Qataris had reported to the U.S. Later, Mr. Dumont said the Qatari attorney general told him, “If this [the pending exchange] leaks out, we cannot guarantee what will happen to Sergeant Bergdahl. . . if this gets out that you’re trying to do this transfer [then] . . . the wheels come off.”
  • On May 27, Preston wrote to his office from Qatar, “As this matter moves to the next phase, I want to stress the importance of maintaining strict secrecy. Premature exposure could have catastrophic consequences,” he wrote. “Please be careful about what you say and to whom.”
  • Hours later on May 27, Preston wrote back that the deal was done: “We have a deal. Agreement on structure of exchange, details of sequence of steps—open issues resolved—literally shook on it. Execution is already underway. Current plan is to consummate the transaction this week.”
  • Also on “May 27, Mr. Lumpkin spoke with General John F. Kelly, the commander of Southern Command, and directed him to prepare the Taliban Five to leave GTMO. General Kelly then telephoned Rear Admiral Richard Butler, who led JTF-GTMO. Two U.S. Air Force C-17s arrived at GTMO before the day was out. Thus started a complex series of choreographed events over the next four days, in which personnel at GTMO, Mr. Dumont in Qatar, and others elsewhere juggled many logistical issues. They worked to dispatch the Taliban Five to Qatar pursuant to the agreed upon arrangements and do so in a way which kept it from being publicly known. …The transfer process included Qatari representatives coming to GTMO to escort the detainees to Qatar. According to the GTMO commander, on May 29, the Qataris presented the Taliban Five with a statement which outlined their transfer terms.”
  • “The Taliban Five were not to depart, however, until Sergeant Bowe Bergdahl had been returned to U.S. control. Originally, this was anticipated to occur shortly after the Qataris arrived at GTMO and had met with the detainees. However, as Michael Dumont (Deputy Assistant Secretary of Defense for Afghanistan, Pakistan and Central Asia) explained to the committee, “[i]t took the Taliban much longer to get Sgt. Bergdahl to us” than originally expected. Consequently, this delayed the departure of the Taliban Five. Eventually, after staging near the GTMO runway for about eight hours, it became clear that the transfer would not occur by the end of May 29. Accordingly, the Qatari delegation was provided with a room in the military hotel adjacent to the GTMO runway. The Taliban Five spent the night in a secure facility at GTMO normally used by the Department of Homeland Security in connection with regional immigration enforcement activities. The following day, the operation to recover Sgt. Bergdahl continued to drag out, further stalling the transfer.
    This additional delay meant the Qatari delegation and the Taliban Five were accommodated for a second night in the same way. … The call for mission “GO” came Saturday morning, May 31, 2014. The Taliban Five were bused from their cells to the waiting aircraft.  Less than 3 hours after Sgt. Bergdahl was released into U.S. custody, the detainees were escorted onto the aircraft and flown to Qatar, along with the Qatari escorts.”
  • The chairman of the House Armed Services Committee at the time, Rep. Howard “Buck” McKeon, was told by the Pentagon that Bergdahl had been recovered and the Taliban Five were about to be flown out of Gitmo shortly before the plan took off.
  • Detainee policy officials who work on normal transfers of lower-level detainees who are recommended for release, like Paul Lewis, who became the Department of Defense’s Special Envoy for Guantanamo Detention Closure in October 2013, had little involvement. The undersecretary of defense for intelligence, Michael Vickers, was not told what was going on: “Indeed, in the months leading up to the transfer, Mr. Vickers was not aware of or invited to any interagency meetings on the subject. ‘I didn’t participate in any [meetings] and nobody told me about them,’ he reported to the Committee. Mr. Vickers found out about the transfer the day before it occurred. He did not see the Memorandum of Understanding until after the transfer had taken place. Mr. Vickers said he was surprised he had been excluded from these matters because he said he was ‘generally’ apprised of ‘most policy matters’ and ‘anything operational’ in the Department.”

Mark Martins and the backstory to Hamidullin, the Russian Taliban sentenced to life in prison today

Today, Irek Hamidullin, a Russian army defector who joined the Taliban and was captured after a (spectacularly unsuccessful) assault on American and Afghan forces in Afghanistan in November 2009, was sentenced to life in prison after being convicted at trial before a civilian court last August. I report the very interesting background to Hamidullin case on pages 533-534 of Power Wars.

Hamidullin was captured shortly after the newly promoted Brigadier General Mark Martins arrived in Afghanistan and took over as acting head of detention operations there following a stint (as a colonel) as the co-leader of Obama’s 2009 executive order task force for detention policy. On the task force, Martins had been a prime mover in the push to reform and keep, rather than scrap, military commissions, and I separately recount a previously unreported behind the scenes battle he had with David Barron, then the acting head of OLC, on tribunals issues. But Martins was also steeped in the broader lessons of the task force, a chief takeaway of which was that it was smart to be thinking about off-ramps — stable, long-term disposition options — for terrorism captives from the beginning.

From Afghanistan, Martins began lobbying the Department of Justice and U.S. Central Command in Tampa to bring FBI agents to Afghanistan to investigate Hamidullin’s case while the evidence was still fresh, such as by interviewing the soldiers who had captured him, while they were still deployed in the theater. Since Hamidullin could likely not be sent to Russia (lest it abuse him), Martins’ idea was to gather evidence in a way that would meet admissibility standards in civilian court.

Especially in the politically toxic aftermath of the Christmas 2009 underwear bombing, the idea of reading Miranda rights to a terrorism suspect captured in a war zone was a tough sell. But the revamped military commissions system was not yet up and operating, and eventually Martins got what he asked for.

Nearly four years later, in the fall of 2013, the United States was preparing to “end” its military mission in Afghanistan. There turned out to be less to this than advertised, obviously, but the U.S. would get out of the detention business at Parwan, the prison at Bagram Airbase, by the end of 2014. Hamidullin was one of the last detainees in U.S. custody. By then, Martins was back in the United States and serving as the chief prosecutor in the military commissions system.

Now that the tribunals system was operating again, Martins wanted to prosecute Hamidullin in it — if not at Guantanamo, to which Obama had banned bringing any new detainees, then at the military base in Charleston, South Carolina. But holding a tribunal on domestic soil would mean entrenching military commissions as a tool for future captures, and Obama’s national security team had grown skeptical of the tribunals system, which was not working very well in getting to trial in the 9/11 and Cole bombing cases.

Martins lost the policy debate: in the fall of 2014, the Justice Department obtained an indictment of Hamidullin and he was flown to the Eastern District of Virginia for trial before a civilian court. He was convicted earlier this year, and now will serve the rest of his life in prison.

So the irony is that while Martins lost the policy fight to prosecute Hamidullin in his military commissions system, he nevertheless deserves significant credit for this outcome because it was his own earlier intervention to collect civilian court-worthy evidence that led to it.

Gitmo endgame: may federal judges accept guilty pleas and impose sentences by remote videoconference?

In today’s article about Obama’s new Gitmo closure endgame of trying to drive down the number of detainees who would be brought to a replacement wartime prison on domestic soil, I mentioned that some lawyers for detainees (including Abu Zubaydah) want to strike plea deals with the government – but, for several reasons, only in the Article III civilian court system, not the military commissions system.

Because Congress has banned bringing detainees into the United States, this raises the question of whether a federal judge would be willing to take a plea and impose a sentence by remote video link. This was too in-the-weeds for a newspaper article, but it is an interesting legal issue. Someone shared with me some preliminary research about why it is murky, which I summarize below.

It turns out that in 2002, the Federal Rules of Criminal Procedure were amended to explicitly permit doing initial appearance hearings (Rule 5f) and arraignments (Rule 10c) by remote video conference, while the rules about plea hearings (Rule 11) and sentencing hearings (Rule 32) are silent on this issue. However, a rule on the defendant’s presence (Rule 43) states that unless Rule 5, 10, or 43 provide otherwise, a defendant “must be present” at stages of trial, including “the plea” and “sentencing.” Basically, the question is whether that is a right, which a defendant may choose to waive, or a requirement, which he cannot waive.

On occasion, prosecutors strike a precooked deal with someone who hasn’t been arrested yet, and who does the whole shebang – presentment to guilty plea – in one hearing, as would be the case with a Gitmo detainee deal. And there are a few precedents for pleas being taken by remote video link, without being overturned by an appeals court. For example:

  • U.S. v. LIRIANO-BLANCO, 510 F.3d 168, 169 (2d Cir. 2007)
    • discussing, without objection, how the district court judge had taken the plea in a videoconference hearing while the judge was in Binghamton, New York, and the defendant, defense lawyer, and prosecutor were in Albany
  • UNITED STATES v. HARRISON, 48 F.Supp.3d 381 (N.D.N.Y. 2014)
    • “On April 12, 2013, defendant entered into a written plea agreement with the Government, and on the same day appeared via video conference to enter a plea of guilty. Defendant waived his right to appear in person, and was sworn prior to entering his plea.”
  • UNITED STATES v. MELGOZA, 248 F. Supp. 2d 691 (S.D. Ohio 2003)
    • Rejecting two defendants’ request to plead guilty by remote videoconference as a matter of convenience in light of Rule 43, but  also noting that the same court, “on one occasion, permitted a Defendant to enter a plea of guilty, by video conference, upon his consent. In that situation, the Defendant’s physical condition, as confirmed by his treating physicians, was such that he not only could not travel to Ohio from his home in Atlanta, but that he would never be able to do so.

 

UPDATE: 1/29/2016

I missed an important thing: in 2011, Rule 43 was amended to say a defendant need not be present for a “misdemeanor offense” in which the “offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant’s written consent, the court permits arraignment, plea, trial, and sentencing to occur by video teleconferencing or in the defendant’s absence.”

The existence of this explicit exception for certain misdemeanor cases arguably implies that the rule is no exceptions for felony cases. (If so, this would be a true “exception that proves the rule,” that frequently incorrectly invoked concept.)

Here’s what the committee notes said about that amendment:

Committee Notes on Rules—2011 Amendment

Subdivision (b). This rule currently allows proceedings in a misdemeanor case to be conducted in the defendant’s absence with the defendant’s written consent and the court’s permission. The amendment allows participation through video teleconference as an alternative to appearing in person or not appearing. Participation by video teleconference is permitted only when the defendant has consented in writing and received the court’s permission.

The Committee reiterates the concerns expressed in the 2002 Committee Notes to Rules 5 and 10, when those rules were amended to permit video teleconferencing. The Committee recognized the intangible benefits and impact of requiring a defendant to appear before a federal judicial officer in a federal courtroom, and what is lost when virtual presence is substituted for actual presence. These concerns are particularly heightened when a defendant is not present for the determination of guilt and sentencing. However, the Committee concluded that the use of video teleconferencing may be valuable in circumstances where the defendant would otherwise be unable to attend and the rule now authorizes proceedings in absentia.

Takeaways from my latest inside-the-Gitmo-closure-fight article

Here is my latest Gitmo story, surfacing the latest behind-the-scenes stuff on Obama’s fraught push to close Gitmo before he leaves office.

Among the takeaways:

  • Although Obama has twice said he wants the detainee population (currently 107) down to double digits by around the new year, there are currently no SecDef notices at Congress, so we’re at least 31 days away from any transfers
  • A country that had agreed to take two detainees is now threatening to walk away if there are any further delays
  • The fabled “plan” to close Gitmo that is being prepared for Congress (where many GOP critics of Obama falsely say he has had no plan, even though he’s had a plan since 2009 and the basics will not be any different from that one – the problem is people don’t like his plan, not that he doesn’t have one) is going to have much higher per-capita detainee costs than what has been suggested by the figures often cited by closure proponents – that it costs >$3 million per year to house a detainee at Gitmo, versus <$80,000 per year to house a terrorist in the Florence ADX “Supermax.” The reason is that these two figures are based on dividing the number of prisoners at each into a total cost that is not an apples-to-apples comparison. In particular, more than a quarter of Gitmo’s $400 million budget is the cost of the military commissions system, while the Bureau of Prison’s numbers for the Supermax does not include the cost of the civilian courts system.
  • Carter presented a draft plan to Obama in the Oval at 5 p.m. on Nov. 10, leading to discussion of ways to make the costs lower
  • The endgame strategy now is to drive down the number of detainees who would need to be brought in the United States, from the current 59 to a goal of less than half of that
  • One way to drive down the number of detainees is to speed up the work of the Periodic Review Board, which has been moving slowly in reviewing forever detainees but is converting a high number of those it has examined into transferrable detainees
    • Of the 18 forever detainees the board has reviewed since starting work in the fall of 2013, it decided 15 should now be transferred, if security conditions could be met in the receiving country – a conversion rate of 83%
    • 46 forever detainees have not yet been processed by the board
  • Another way to chip away at the numbers of future indefinite detainees is to send some to foreign courts for prosecution, like Hambali (2002 Bali bombings)
  • A third way is to strike plea deals with others, and several want to do so – but in Article III civilian court, not commissions.
    • Certain charges for vague terrorism-related offenses, like conspiracy to provide material support for terrorism, are only available in civilian court, making more detainees prosecutable
    • Civilian court rules permit time already in custody to count toward a sentence
    • A convicted detainee could be extradited to his home country to serve out his sentence, or brought to a regular federal prison as a regular inmate, not the replacement wartime prison
    • A plea deal would avert the need for a trial in a federal courthouse on US soil, avoiding the security fears that derailed the proposed civilian trial for KSM and the other accused 9/11 conspirators
    • Certain things are tricky about this, like whether a judge could take a plea and impose a sentence by remote video link, with the detainee still in Gitmo