JURIST Guest Columnists Lawrence Friedman and Victor Hansen of New England School of Law say that while newly-announced White House policies on detentions and state secrets represent ostensible departures from Bush administration positions, they maintain the status quo in fundamental ways…

In the past week the Obama administration has made two policy announcements which suggest that President Obama's terrorism policy has come to resemble that of his predecessor. First, Obama announced that the administration would not seek additional authorization from Congress to indefinitely detain terror suspects being held at Guantanamo. Rather than seek additional authorization, the administration will continue to rely for its power over these individuals on the Congressional authorization to use military force enacted after September 11, 2001 (the AUMF). Second, the President announced a new policy regarding assertions of the state secrets privilege.

Indefinite Detention

As the U.S. Supreme Court has concluded, the AUMF likely provides the President with the authority he needs to detain the terrorism suspects at Guantanamo. Many if not all were captured and detained as a consequence of actions that flowed from President Bush’s implementation of Congress’s directives in the AUMF. At this point, moreover, Congressional silence on the matter suggests a tacit acknowledgement that the Obama administration’s view of the scope of the AUMF, like the Bush administration’s, is correct.

To be sure, the Obama administration is departing from the Bush administration in disclaiming reliance upon inherent executive power under the Constitution to justify the indefinite detention of terror suspects. This is all to the good. Absent a true emergency situation—one in which Congress is effectively disabled from acting to authorize Presidential action—the argument that the President has the inherent authority to hold individuals indefinitely without charge or trial is dubious.

It remains, though, that the administration’s current position does not answer the question whether the President will be able to exercise similar power over terror suspects in the future—suspects who could not reasonably fall within the scope of the AUMF. That we will capture such individuals is more than an idle possibility. Congress would be within its constitutionally-assigned role to begin to develop a framework for authorizing this and future Presidents to detain terror suspects, providing flexible guidance as to the circumstances in which this power will exist as well as its operative limits.

At present, neither the President nor the Congress quite knows what to do with the detainees at Guantanamo who for various reasons are not eligible for trial. This is a national embarrassment, and it might have been avoided if President Obama’s predecessor had recognized the role Congress should play in creating a structure for Presidential action. Congressional involvement might not have resulted in the blank check of authority President Bush appeared to desire, but engagement in the democratic process itself would have created a mechanism for greater accountability in respect to the measures the President ultimately elected to pursue.

Further, it might just have avoided the United States being responsible for a couple dozen individuals spending the rest of their days in physical isolation and legal limbo—suspected of the most profound wrongdoing, but ineligible for the most basic determinations of guilt and punishment.

State Secrets

In the second development, Attorney General Eric Holder announced a series of new procedures that must be followed before an executive agency of the federal government can assert the state secrets privilege in any litigation. President Obama’s predecessor was criticized for routinely invoking the state secrets privilege in a number of lawsuits over that administration’s domestic electronic surveillance program and its practice of extraordinary renditions. Many hoped President Obama would reverse or at least limit the controversial practice of asserting the privilege in these and like cases. But President Obama continued the practice of his predecessor in asserting the privilege, effectively shutting down the litigation of many controversial cases.

Perhaps in response to that criticism and to make good on his campaign promises, the President’s Attorney General has implemented a new process for internally evaluating the legitimate invocation of the state secrets privilege. Under this new process, all government agencies, including the intelligence community, must convince a team of Justice Department lawyers and the Attorney General that the release of information would present a significant harm to national defense or foreign relations. This is contrary to the current practice, which permits the head of a department or agency to make the determination that disclosure of information would be harmful to national defense or foreign relations.

There is no doubt that this new procedure, which goes into effect on 1 October 2009, could make it more difficult for an agency to invoke the state secrets privilege. First, the Attorney General, an official who is at least somewhat removed from the requesting agency, theoretically can make a more independent assessment of the issue. Second, a higher standard of harm must be shown in order for the privilege to be asserted. This procedure has been recognized as a step in the right direction by the American Civil Liberties Union and others who have been litigating for the release of protected information.

It is important, however, not to miss what is going on here. By unilaterally declaring a new policy for the implementation of the state secrets privilege, the President seems to be tacitly acknowledging that his predecessor asserted the privilege in situations where it was not justified.

At the same time, if the President alone can set the terms, scope, and procedure for how the privilege is to be invoked, what assurances do we have that this President is invoking it in a more legitimate way and, more to the point, what is to prevent this or some future President from again changing direction and improperly asserting the privilege? By keeping the decision on this issue within the sole prerogative of the Executive, Mr. Obama looks much like his predecessor.

Like the issue of indefinite detention, this is a situation that calls out for congressional action. Given the murky origins of the state secrets privilege, Congress can and should accept responsibility for codifying its dimensions. Codification through the deliberative process, too, would allow for greater accountability through Congress and the courts.

The true benefit of congressional involvement in national security matters is that adherence and respect for our constitutional values will not depend solely upon the personality of the person who occupies the Oval Office or upon the nature of the immediate crisis at hand. Rather, adherence to these constitutional values will be a function of the full engagement in the deliberative process of both political branches of our government.

Lawrence Friedman t
eaches constitutional law and state constitutional law and Victor Hansen teaches criminal law and criminal procedure at New England School of Law. Their book, The Case for Congress: Separation of Powers and the War on Terror, has just been published by Ashgate.
——–