Federal Judiciary

Obama challenged anew on detention

By Akin Gump Supreme Court Practice Group

Conceding that the Obama Administration has made “a partial retreat” from Bush Administration’s claims of power to detain indefinitely individuals rounded up in the “war on terrorism,” lawyers for a group of detainees argued on Friday that the new government is still asserting too much authority.  The President, they contended, is engaging in “impermissible law-making” by the Executive Branch, intruding on Congress’ s powers.

The new claim, outlined a week earlier by the Justice Department, remains ”a marked departure from and expansion of the military detention authority recognized by the traditional law of war,” just as that of the Bush Administration was, according to the new filing Friday in U.S. District Court.  (The main filing, without appendices, can be found here.  The appendices are available on the District Court’s website under Gherebi, et al., v. Obama, et al., docket 94-1164, entry 205; access requires a Pacer account.)

The new leaders of the Justice Department contended that, while no longer asserting “inherent” presidential power to detain without charges, the President has authority under the resolution Congress enacted after the Sept. 11, 2001, terrorist attacks.

But, the detainees’ counsel responded, that resolution (formally, the Authorization for Use of Military Force, or AUMF) does not go that far. The document amounts to a fervent defense of Congress’ primary authority to pass laws on the subject, an authority that the lawyers say has not been exercised as the Justice Department is asserting.

Two prior Supreme Court rulings — Hamdi v. Rumsfeld in 2004, and Hamdan v. Rumsfeld in 2006 — “have rejected broad interpretations of the AUMF,” detainees’ counsel contended.

The Hamdi rulng is based “squarely on the already existing law of war, and emphasized the narrow scope of that ruling,” the memorandum said. “It contains no suggestion that the AUMF granted the President broad authority to rewrite the law of war; indeed, if the Court had been of that view, the rationale it chose would have been unnecessary and inappropriate.”

The Hamdan decision, it went on, “found no authorization in the AUMF to depart from prior practice.” 

Filed in the District Court of Judge Reggie B. Walton, who is handling more than three dozen detainee cases, the filing urged the judge to “follow Hamdi’s lead, and rule that the scope of the executive’s detention power in these cases will be that authorized by the traditional law of war.”

The 2001 AUMF resolution, the memorandum contended, was limited to detaining those  who planned or aided the terrorist attacks that had just occurred, plus anyone who “harbored those responsible.”

But, it said, the Justices Department is now going on “to assert that AUMF authorizes the President to develoop a new body of law b considering who would be detainable ‘in appropriately analogous circumstances’ if the preent conflict were in fact ‘a traditional international armed conflict.’”

The “threshod problem” with this argument, the detainees’ lawyers said, “is that, as eight of the nine justices who sat in Hamdi noted, the AUMF is completely silent on the subject of detention authority. As Justices Souter and Ginsburg pointed out in their partial concurrence, the AUMF ‘never so much as uses the word detention…’ “

Full post as published by SCOTUSBLOG on March 21, 2009 (boomark / email).