United States Detention Policy: Will Obama Follow Bush or FDR?

Co-authored with Jack Goldsmith, The Washington Post, June 29, 2009

Soon after the Sept. 11, 2001, attacks, the Bush administration faced a fateful choice about terrorist detainees: Should it get Congress on board, or go it alone? President George W. Bush bypassed the legislature and for seven years based U.S. detention policy on his own constitutional authority, Congress’s general authorization for the war against al-Qaeda and its affiliates, and the international laws of war. Working with Congress would be hard, administration officials reasoned; the legislature might constrain executive flexibility; and the president had powerful arguments that he didn’t need additional legislative support.

Today, President Obama faces much the same choice, and he appears sorely tempted to follow the same road, for the same reasons: “White House officials are increasingly worried that reaching quick agreement with Congress on a new detention system may be impossible,” The Post reported Saturday, and “Congress may try to assert too much control over the process.” Obama is considering creating a long-term detention apparatus by presidential executive order based on essentially the same legal authorities the Bush administration used.

Obama, to put it bluntly, seems poised for a nearly wholesale adoption of the Bush administration’s unilateral approach to detention. The attraction is simple, seductive and familiar. The legal arguments for unilateralism are strong in theory; past presidents in shorter, traditional wars did not seek specific congressional input on detention. Securing such input for our current war, it turns out, is still hard. The unilateral approach, by contrast, lets the president define the rules in ways that are convenient for him and then dares the courts to say no.

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