Monday, January 03, 2011
Remember the "unitary executive," the theory of Constitutional interpretation that puts decisions of the president within the executive branch effectively out of reach of Congress and the judiciary? And remember how evil an idea it was when George W. Bush was the president?
Well, it's back in fashion among Democrats.
President Obama’s legal advisers, confronting the prospect of new restrictions on the transfer of Guantánamo detainees, are debating whether to recommend that he issue a signing statement asserting that his executive powers would allow him to bypass the restrictions, according to several officials.
If Mr. Obama were to issue such a statement, it could represent a more aggressive use of unilateral executive powers than what he exerted in his first two years in office.
We await the howls of outrage from the editors of the New York Times with bated breath.
Anon Attorney here. Fascinating dispute.
Congress likely cannot limit the President's authority, acting in his capacity as CiC of the Armed Forces, to issue an order transferring detainees in military custody from one military facility to another, or releasing detainees. In that regard, Congress probably cannot prevent Obama from transferring the Gitmo detainees to a U.S. miltary faciliyy or simply releasing them.
Congress absolutely can specify that no funds may be used by the Department of Justice to accept custody of such detainees from the military or to detain or exercise custody of said detainees. Further, Congress can restrict the jurisdiction of Federal Courts to prevent their cases from being brought in Federal Court, with the caveat that Congress probably cannot limit Habeas Corpus actions.
So Obama can get the Gitmo detainees onto an American military base on U.S. soil. Once they are in U.S. territory lawyers representing them will certainly file Habeas Corpus writs. It is not unlikely that judges will order them released.
If I were the chair of the RNC I would be secretly praying that large numbers of detainees are ordered released. This is like Willy Horten on steroids.
Look at the bright side.
If we wait long enough, surely Bill Keller will become so alarmed at this reckless and arrogant abuse of executive authority that he'll publish the details of yet another terrorist tracking program.
Or maybe Wikileaks will obtain and release Obama's full birth certificate. Because secrets are anti-democratic and information wants to be free.