Bush Appointees Buck Barack Obama on Terror Policies

by Josh Gerstein

President Barack Obama's claims of broad executive authority to carry out the war on terror are drawing fire from an unexpected source: federal judges nominated by President George W. Bush, who asserted the sweeping powers in the first place.

In recent weeks, three different Bush appointees considering cases relating to war-on-terror detainees have rejected arguments from Obama's Justice Department, which adopted virtually unchanged the positions the Bush administration had staked out.

In each case, the Bush-appointed judge said the executive branch was overstepping its authority and claiming more powers than the law allowed.

"It took a while for the courts to turn on George Bush. Obama's not getting that same period," said Jonathan Turley, a liberal legal analyst at The George Washington University. "The fact that these are Republican appointees tends to add an exclamation point to their decisions."

"Even Republican judges are seeing through the arguments and the idea that the war on terror justified depriving prisoners of constitutional protections," said Jonathan Hafetz of the American Civil Liberties Union.

The irony, of course, is that Democrats railed against Bush for what many saw as a power grab in the months and years after the Sept. 11 attacks - when Bush and Vice President Dick Cheney asserted vast executive branch authority to wage wars in Afghanistan and Iraq and to hold prisoners in Guantanamo Bay and elsewhere. In the years since, courts from the Supreme Court on down have begun to pare back that authority, saying in several high-profile rulings that Bush overstepped his bounds.

Since taking office, Obama has adopted many of these broad claims to executive authority as he's inherited the war on terror from the past administration - but he is now facing some of the same legal constraints that Bush began to encounter in his closing years in office, sometimes in sharply worded decisions that show some courts have decided it's time to rein in executive power.

"For seven years, the Bush administration, in tandem with Congress, were able to stop any judge from actually looking at the evidence" in detainee cases, Hafetz said. "They're finding that the emperor has no clothes and the detentions lack evidentiary support."

In April, Judge John Bates turned aside the arguments of the Obama and Bush administrations in ruling that some prisoners at the U.S.-run Bagram Air Base in Afghanistan were entitled to challenge their detention in court if they were captured outside Afghanistan.

"Such rendition resurrects the same specter of limitless executive power the Supreme Court sought to guard against: ... the concern that the executive could move detainees physically beyond the reach of the Constitution and detain them indefinitely," wrote Bates, who was appointed to the district court in Washington in 2001 and is a former aide to Whitewater independent counsel Kenneth Starr.

Earlier this month, San Francisco-based Judge Jeffrey White surprised many legal analysts when he refused to dismiss a lawsuit an alleged Al Qaeda operative and convicted terrorist, Jose Padilla, brought against former Justice Department attorney John Yoo over his alleged involvement in Bush's decision to hold Padilla in a South Carolina Navy brig for more than three years.

"Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct," wrote White, a former federal prosecutor nominated by Bush in 2002. "The specific designation as an enemy combatant does not automatically eviscerate all of the constitutional protections afforded to a citizen of the United States. ... The court finds that the complaint alleges conduct that would be unconstitutional if directed at any detainee."

And in a ruling last week, Judge Richard Leon was anything but bashful as he second-guessed the Obama and Bush administrations' claims that a Syrian detainee, Abdul Rahim Abdul Razak al-Janko, could be held at Guantanamo even though he was considered a spy by Al Qaeda and tortured at some length before he was captured by the U.S. in Afghanistan.

"Surely, extreme treatment of that nature evinces a total evisceration of whatever relationship might have existed!" wrote Leon, who was appointed in 2002 and served as a counsel to congressional Republicans in the Iran-Contra investigation in the '80s.

Several legal analysts said they doubted the judges were acting out of any desire to trip up Obama. They noted, for example, that Leon began ruling for some Guantanamo prisoners last November, when Bush was still in office.

"I don't think it's partisan or personal," said David Rivkin, a conservative attorney and lawyer for the administrations of Presidents Ronald Reagan and George H.W. Bush.

Rivkin called the rulings "bad" and "deeply violative of constitutional principles," but he said the decisions from Bush judges were a logical outgrowth of Supreme Court decisions pushing the judiciary to assert itself.

"The fundamental thing is human nature: Where you sit is where you stand," Rivkin said. "Their institutional interest - that is a far more compelling motivator of behavior than political inclinations. ... You can be a great armchair general, overseeing things happening in a faraway exotic place. You can be the one to run Bagram."

Another analyst said the ideological lines blurred in the detainee cases. "When it comes to coercive state power, those legal issues don't always divide neatly along liberal/conservative, partisan lines," said Matthew Waxman, a law professor at Columbia University.

Even after the stinging defeats, the Obama Justice Department is continuing to fight at least two of the rulings. Government lawyers requested and received a stay of Bates's decision on habeas rights at Bagram.

And in a filing just last week in another suit Padilla brought against other officials, the Justice Department all but trashed White's decision. The government complained that the ruling in favor of Yoo "contains numerous and critical errors, ignored controlling Supreme Court and other precedent, and for these reasons should not be followed."