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OLC Concluded President’s Powers Over Military and Captured Combatants — Including U.S. Citizens — is Absolute

We already knew that the Justice Department’s Office of Legal Counsel held a broad view of executive power. But the memos released today suggest the OLC lawyers took that theory to a whole new level.

In the memo (pdf) concerning the “President’s power as Commander in Chief to transfer captured terrorists to the control and custody of foreign nations,” which I wrote about earlier, former OLC lawyer Jay Bybee cites a legal case from 1862 (couldn’t he find anything more recent?) and wrote that “the President’s discretion in exercising the Commander-in-Chief power is complete, and his military decisions are not subject to challenge in the courts.” Such power includes “the power to ‘dispose of the liberty’ of prisoners captured during military engagements.”

He goes on: “Our constitutional history and practice confirms this: the President has since the Founding era exercised exclusive and virtually unfettered control over the disposition of enemy soldiers and agents captured in time of war.”

Wow. That’s a lot of control. And no meddling Congress or judiciary is going to get in his way.

In another memo (pdf), “Re: Applicability of 18 U.S.C. 4001(a) to Military Detention of United States Citizens”, former Deputy Assistant Attorney General John Yoo arguesdthat the President’s unfettered power extends even to U.S. citizens deemed enemy combatants, such as Jose Padilla.

In fact, even a U.S. law that states that “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress” does not apply if the President has decided that a U.S. citizen is an “enemy combatant,” Yoo wrote.

“As we explain below, the President’s authority to detain enemy combatants, including U.S. citizens, is based on his constitutional authority as Commander in Chief. We conclude that section 4001(a) [the US law referenced above] does not, and constitutionally could not, interfere with that authority.”

It’s worth noting that many of these opinions are no longer the official opinions of the Office of Legal Counsel. While some of the opinions released today have been explicitly withdrawn (not including the two referenced above), parts of others — particularly concerning the unfettered power of the president in wartime — have been disavowed, and we’ll be looking more carefully into exactly which parts of which memos still stand.

Still, the fact that the Bush administration was operating for several years with this understanding of the law raises serious questions about exactly how and against whom that unfettered executive power was exercised.

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