Executive Power

Klaidman Post #1: Where that March 13 Brief Came From

By Benjamin Wittes
Sunday, June 10, 2012, 4:37 AM

Memo to Eric Holder and President Obama: Next time you decide to break big news on a Friday afternoon, can you please check with me to make sure I'm not getting on a 24 hour flight first? It seemed like a quiet Friday afternoon when I left Dulles for Singapore. By the time I arrived, however, a lot had happened. Since Jack and Paul have already said most of what I would have said on the new leak investigation, I will refrain from adding more on that for now.

One nice thing about gruelingly-long plane rides--and there are not many nice things about them--is that they give one an opportunity to catch up on books one has been meaning to read. In this case, I read Dan Klaidman's new book and, over the next few days, will be doing a series of blog posts about things I learned from it. I am not going to write a review of the book; Dan is a friend and an old colleague, and I thus don't think a review from me would be appropriate. So although I do highly recommend the book to anyone interested in Obama's counterterrorism policy, Ken will be getting a review from someone else. My posts, rather, will focus on isolated items I found particularly worth sharing.

The first is Klaidman's account of origins of the now-famous March 13, 2009 brief, in which the Obama administration laid out its vision of the scope of its detention authority. The brief, in which the administration claimed the authority to detain those who were "part of" or "substantially supporting" enemy forces, was the first articulation of what has now become law--first because the courts adopted something similar to it, and then because Congress wrote it almost verbatim into the NDAA. I had known before reading Dan's book that the brief had been the product of a litigation-deadline driven set of discussions--and had even discussed that fact in some recent speeches. His description of those discussions--and President Obama's personal role in them--was entirely new to me, however:

The administration was facing another court deadline, habeas corpus cases brought by lawyers for Guantanamo detainees, and, once again, the president was forced to make a series of quick, difficult, and highly consequential decisions. . . .

Munching on an energy bar, the president and his lawyers got down to business. First, Obama wanted to know whether he could get more time. But the judge had already granted one extension and he would not indulge them further. One of the Justice Department lawyers, Amy Jeffress, noted that it was risky to come up with a new definition for who could be detained before they'd completed the review of who was actually in Guantanamo. Litigating against a new standard could mean more detainees winning release. Jeffress suggested they stick with the Bush administration's definition until they could carefully develop their own. But Obama immediately rejected that idea; after the state-secrets debacle, he was not going to needlessly open himself up to attacks from the left. And he said he didn't want his administration relying on any of the extreme legal arguments concocted by John Yoo, the former Justice Department lawyer and author of the Bush administration's most controversial opinions.

The discussion continued for close to two hours, with Obama often asking pointed questions and occasionally interjecting legal and tactical points of his own. There was one issue he was adamant about: he would not, as George Bush had, rely on his own inherent authority as commander in chief to detain suspects at Gauntanamo. "I don't think it makes sense for me alone to decide, just because I'm the president, who should be detained," he told his lawyers, according to several participants. "I'm not comfortable exerting that authority." At around 7 P.M. the lawyers left the Oval Office with their assignment, daunting as it was: rewrite the legal parameters of Barack Obama's war on al-Qaeda.

David Barron, a brainy, reserved law professor who'd recently joined the Justice Department's Office of Legal Counsel, led the effort. Powering through eighteen-hour marathon sessions fueled by greasy Chinese takeout and sodas, they produced a draft brief in five days. Obama signed off on it March 11, and two days later Justice Department lawyers filed it with Judge Bates.

This story strikes me as remarkable for two reasons--both related to its portrait of Obama. First, it is amazing to me that the president personally sat through a two-hour-long meeting discussing the legal principles underlying his detention authority, and that he personally cares whether he is exercising inherent power or whether he is exercising delegated congressional power. It is similarly amazing that a district court order to produce a brief can occupy hours of the president's time--a fact I suspect Judge Bates never imagined when he asked for the brief. Whether one sees this investment of the president's personal energy as reflecting a laudable commitment to the rule of law or a inability to delegate litigation to litigators--and I go back and forth on that--it is a remarkable portrait of Obama's view of and anxieties about presidential power and of his views of his role in presenting those powers to the courts.

Second, all of this presidential energy produced very little substantive change. What Klaidman calls a rewriting of the legal parameters of the war on terror really amounted to the addition of a single word--"substantially"--to the existing Bush administration definition of its detention power (the Bush administration had claimed the authority to detain those who were part of or supporting enemy forces). So while the Obama administration dropped the term "enemy combatant" and dropped any reference to inherent authority, the actual functional change that this feverish process produced was really quite minimal--particularly since the Bush administration was not holding anyone on the basis that they had insubstantially supported Al Qaeda or the Taliban. Yet if you believe Klaidman--and my own discussions with people over the years convinces me independently that he is right on this point--the Obama administration people believed this process to be very important. Until I read this passage, I have never really understood why. Yet I think Klaidman offers an answer to that question: Because Obama himself participated in it, took it seriously, and used it as an occasion to articulate powers he felt he should not be exercising. That self-restraint emerges in the brief only in powers not claimed, not as any kind of formal statement, but it must have been searingly powerful to the people involved.