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Playing With Fire: Congress and Executive Power

JURIST Guest Columnist Brian Foley of Florida Coastal School of Law says that while senators are likely to query Judge Samuel Alito this week about his views on executive power, they themselves have dangerously indulged it without setting clear limitations, as recently evidenced by their approval of the "compromise" Graham-Levin amendment severely restricting access to federal courts by Guantanamo detainees...


If the pundits are right, this week's confirmation hearings for US Supreme Court nominee Samuel A. Alito, Jr. will involve much discussion of “Executive power.” Senators will express concern that the Bush Administration has, over the past four years, expanded that power to include, among other things, the power to torture people and imprison them indefinitely. These are powers that most Americans would denounce as dictatorial if another country’s government claimed them, much less exercised them. Senators will ask Judge Alito for assurance that he shares these concerns.

The questions, however, will be largely moot and even hypocritical. Late last year, the Senate overwhelmingly passed an amendment (by Senators Lindsey O. Graham (R-SC) and Carl M. Levin (D-MI)) to the 2006 defense appropriations bill that has resulted in legalizing the Executive’s powers to imprison people indefinitely and torture them.

The Graham-Levin Amendment

The new law (now section 1005 of the Detainee Treatment Act of 2005) repudiates the U.S. Supreme Court’s decision in Rasul v. Bush, 124 S. Ct. 2686 (2004), which held that non-U.S. prisoners at the U.S. Naval Base at Guantanano Bay, Cuba (GTMO) could access the federal courts via claims based in habeas corpus, 28 U.S.C. 2241, federal questions, 28 U.S.C. 1331, and the Alien Tort Statute, 28 U.S.C. 1350. Now, the prisoners’ only access to U.S. courts is limited to appeals of the outcome of GTMO proceedings, and limited to the U.S. Court of Appeals for the D.C. Circuit. The new law also specifically states that the military officers who sit in judgment may use evidence obtained by coercion, if they decide it has “probative value.”

Some Members of Congress may have believed they were simply enacting a law to reduce the number of cases going to federal court, or to streamline what may be seen as a messy process for GTMO cases, or as “tort reform” for GTMO. But the effect of the law is to give the Executive unreviewable power. Here’s how: A person can be captured, shackled and sent to GTMO and never given a hearing before a Combatant Status Review Tribunal. He has no right to the hearing, because he cannot enforce that right in a court. He can be tortured, because he cannot go to court to enforce a right not to be tortured. (This law renders the McCain anti-torture amendment to the same defense appropriations bill a dead letter.) The avenues that the Supreme Court in Rasul said were open have been cut off.

Let’s assume a prisoner is given a CSRT hearing and is deemed an “enemy combatant.” If he appeals under this new law, review will be limited: the Court of Appeals will not engage in fact-finding. Review will be deferential to the government: the new law states that the CSRT process itself requires a rebuttable presumption in favor of the government’s evidence, and that the burden of proof is by the preponderance of the evidence.

Review likewise will be limited for those found to be “enemy combatants” who go on to be tried and convicted for specific crimes by a military commission. Any sentence that is not a capital sentence, or is less than 10 years imprisonment, will be reviewed only at the court’s discretion. Review is not likely to be granted, nor is the appeal likely to succeed, if the Administration continues stacking the D.C. Circuit and Supreme Court with “Executive-friendly” judges.

There is one possible saving grace to prevent the Court of Appeals from turning into a kangaroo court: the new law states that the court’s appellate jurisdiction includes, “to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination [of enemy combatant status or a guilty finding by a military commission] is consistent with the Constitution and laws of the United States.” However, the court simply might decide that the Constitution doesn’t apply to GTMO proceedings. And such challenges may be raised only by prisoners who are given a hearing in the first place. The court lacks jurisdiction to address any other sorts of claims.

Constitutional? Perhaps. Unwise? Definitely.

Congress may not have exceeded its own powers in stripping the courts of jurisdiction and eliminating habeas corpus. Under Article III, Congress can control the appellate jurisdiction of the Supreme Court and can “ordain and establish” lower federal courts (and abolish them if it wished). Under Article I (9), Congress can suspend the right to habeas corpus, “when in cases of rebellion or invasion the public safety may require it.”

But Congress has acted unwisely. The law violates the wisdom that has informed our democracy since its inception. It disables the system of checks and balances, because now, the judiciary cannot conduct meaningful reviews of the military proceedings at GTMO. Politicians from the Executive branch might assure us that they’re convicting the real terrorists and protecting us from harm when in fact the convictions are based on unreliable evidence, including hearsay and coerced testimony. These politicians can tell us they are developing investigative skills, but without more rigorous requirements concerning evidence of guilt, they will most likely just be creating goon squads.

The law unwisely limits the longstanding right to habeas corpus forged in England. Habeas corpus requires than the Executive can be forced to justify its detention of any person. It is a check for preventing the Executive from becoming too powerful. After all, an Executive that can jail anyone it dislikes, for as long as it likes, is a formidable power indeed.

Also, the law is an overreaction to 9/11. Fear is understandable, but Congress should recognize that we are not really in a state of “rebellion or invasion,” as the Constitution requires for the suspension of habeas corpus; nor is public safety clearly threatened. Repeated fears of “dirty bombs” and remote-controlled planes spraying anthrax make it easy to overlook that there have been no Al Qaeda attacks on U.S. soil since 9/11 – not a single bomb, not a single jihadist shooting up a shopping mall, not a single zealot ramming his car into a busy, pedestrian-crammed crosswalk. No major political, sporting or entertainment event has been cancelled due to the threat of terrorism. The government has not required owners of dangerous facilities such as chemical plants to step up security. Even if we were attacked today, we should keep in mind that the peaceful period between 9/11 and now – more than four years – exceeds the entire length of the U.S. involvement in World War II, as well as the Civil War.

One might argue that the new law doesn’t decrease our civil liberties, as it applies only to foreigners, and the Executive thus cannot use it to squelch political dissent or crush political enemies. The distinction between U.S. citizens and non-citizens is an arbitrary one, however, where national security is concerned, and it’s not likely to stand. If a man wants to nuke New York, does it really make a difference that he was born in Detroit, and not Dubai? Indeed, a terrorist with U.S. citizenship is more dangerous than a foreign one in that he can move freely in and out of our borders, and blend in as he plots and plans. It won’t take long for both Congress and the Executive to realize this.

Playing With Fire

Granting the Executive the power to torture people and jail them indefinitely, without meaningful judicial review, is like playing with fire. The flames can quickly spread out of control.

One person who now knows how swiftly this fire spreads is Senator Carl Levin, who helped start it by brokering the Senate amendment. Now that a revised version has been signed into law, the Administration has announced that it will file motions to dismiss 186 “enemy combatant” cases from federal courts this week. On January 4, Senator Levin released a press statement condemning the Administration’s move. Levin said, “As I pointed out when we passed the bill, the provision says that it ‘shall take effect on the date of the enactment of this Act.’ The meaning of these words is clear: the provision is prospective in its application, and does not apply to pending cases. The Administration is just plain wrong when it says otherwise.”

Plain wrong? As much as I’d like to agree with the good Senator, I’m not so sure. The language is vague at best. And for whatever its worth, Senator Levin’s coauthor, Senator Lindsey Graham, told the Washington Post that he disagrees with him. The courts will have to decide.

Senator Levin should know – as, indeed, every Member of Congress should know – that when drafting laws to increase the Executive’s power, one should be excruciatingly clear about any limits that one thinks should exist. To be any less vigilant is not just wrong. It’s dangerous.



Also by Brian Foley:

Brian J. Foley is an assistant professor of law at Florida Coastal School of Law. Email him at brian_j_foley@yahoo.com. Visit his website at www.brianjfoley.com

January 09, 2006


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