Rivkin and Casey on Gitmo Transfer Bans

By Benjamin Wittes
Tuesday, December 21, 2010, 1:57 PM

David Rivkin Jr. and Lee A. Casey have this oped in today's Wall Street Journal. As it is behind a paywall, I will maximize my fair use rights to bring its argument to the attention of Lawfare readers. The oped opens:

Trying captured al Qaeda, Taliban, or allied terrorists in United States civilian courts is a bad idea. The near acquittal of Ahmed Ghailani—a key figure in the 1998 attacks on U.S. Embassies in Kenya and Tanzania—in a New York federal court last month proves as much. But one bad idea does not excuse another. Congressional efforts to block future trials by imposing spending restrictions on the president are unconstitutional and should be abandoned.

In David's and Lee's view, "Congress need not authorize spending for any particular purpose, however much the president may insist such spending is necessary, and it may properly condition the use of federal funds." But, "Congress cannot use its spending power to force the president or the states to surrender their core constitutional authority." And since "[t]he president is the chief federal law enforcement officer and prosecutor," [w]hether, when and where to bring a particular prosecution lies at the very core of his constitutional power." Consequently, "[c]onditioning federal appropriations so as to force the president to exercise his prosecutorial discretion in accordance with Congress's wishes rather than his own violates the Constitution's separation of powers."

I'm not a separation of powers expert, and I don't know whether I think these provisions are unconstitutional or merely offensive to the Constitution. At a minimum, they are perfectly dreadful policy, and I fully agree with David and Lee and that they are dreadful in a fashion designed to encumber the exercise of core constitutional responsibilities of the president. It is amazing to me that this administration is doing so little to defend its constitutional prerogatives. In its zeal not to overdefend them, it is substantially underdefending them.

Meanwhile, many conservatives who would be howling with rage if Congress sought to similarly impede core constitutional functions of a conservative president are either staying mum or actively cheering Congress on. So I want to take this moment to congratulate two conservatives who are saying exactly the same thing that they would be saying were Congress doing this to a Republican president engaged in a policy they supported--rather than to a Democratic president engaged in a policy they regard as "a bad idea." This oped took guts.

UPDATE: The full oped is available here.