Charlie Savage has a great story up about the legal divisions in the Obama administration over how to conduct the war against al-Qaeda -- the piece goes beyond the simplistic Rahm Emanuel vs. Eric Holder framework that has come to be the preferred narrative of the media.
The administration's legal advisers have been split on how broadly to define the president's detention powers. In one test case, State Department Legal Adviser Harold Koh clashed with Pentagon General Counsel Jeh Johnson over the case of Belkacem Bensayah, an Algerian man who the government believes helped al-Qaeda recruits travel to Afghanistan. At issue was whether Bensayah, who had been captured in Bosnia and thus outside the zone of military combat in Afghanistan, met the threshold of "substantial support" for al-Qaeda laid out by the administration needed to justify indefinite detention.
There was a conflict over whether the government could "consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters." Koh said no; Johnson said yes -- there was no clear precedent to rely on. Savage reports that the Justice Department decided to dodge that legal question of who was detainable by arguing that Bensayah was "clearly detainable" under the "substantial support" threshold.
Savage quotes John Bellinger III, who had Koh's job during the Bush administration, noting that "the change in law has been largely cosmetic. And of course there has been no change in outcome.” Now you might think that as a Bush-era lawyer, Bellinger has an incentive to say that. But when the administration first laid out the "substantial support" threshold a year ago, lawyers from the Center for American Progress and the ACLU told me the same thing.
The administration's supporters might take heart in the reaction to Bush-appointed Judges Janice Rogers Brown and Brett M. Kavanaugh ruling that the law of armed conflict doesn't apply to the president's war powers:
In the Justice Department, career litigators who defend against Guantánamo lawsuits wanted to embrace that reasoning, arguing it would help them win. Judges have sided with detainees seeking release in some 34 of 46 cases to date — though the decisions largely turned on skepticism about specific evidence, not the general legal theory about who was detainable.
But political appointees — including Mr. Barron, Mr. Koh and even Mr. Johnson — criticized the reasoning of the appeals court ruling as vulnerable to reversal and argued that the administration should not abandon its respect for the laws of war.
There are a few of things to conclude here. One is that, for people like Bensayah, the change in law is largely cosmetic. Another is that it is extremely difficult for a new administration to relinquish broad powers asserted by their predecessors, which is another reason why the Bush administration's actions were so dangerous. Lastly, despite the continuity between the two administrations, none of the major legal minds in the Obama administration thinks the president's powers in wartime are limitless. What that ultimately means is still unclear.
-- A. Serwer
