Lawyers with the Obama administration are working to prevent full judicial review of one of the most controversial aspects of President Bush's war on terror – his claim of authority to hold US citizens and legal residents in indefinite military detention without charge as enemy combatants.
On Friday, the Supreme Court justices will meet to consider a motion by the Obama administration to dismiss a petition that raises the issue. On the same day, Justice Department lawyers will urge a federal judge in San Francisco to throw out a civil lawsuit that seeks judicial scrutiny of the work of John Yoo, a former Bush administration adviser who helped draft memos that laid the legal groundwork for President Bush's counterterrorism approach.
In recent weeks, President Obama has rejected some Bush policies in the war on terror while embracing others. His position on executive power in antiterror efforts remain ill-defined.
Mr. Obama seized the antiterror agenda on his second day in office, ordering closure of the detention camp at Guantánamo and banning the use of torture by US interrogators. But the administration has also embraced many of the Bush administration's policies – including reliance on the state secrets privilege and a denial of habeas corpus rights to detainees in Afghanistan who were captured in a different country and transported to a US military prison in Afghanistan for indefinite detention.
The recent developments come amid mounting calls in Congress for a truth commission to investigate the Bush administration's antiterrorism policies and practices.
The Justice Department recently released a series of discredited 911-era legal memos written by Mr. Yoo and others suggesting that constitutional rights be bypassed to help win the war on terror. The government also acknowledged the destruction of 92 videotapes of interrogations of terror suspects by the Central Intelligence Agency.
The pending US Supreme Court case involves an appeal filed on behalf Ali Saleh Al-Marri, an alleged Al Qaeda sleeper agent who has been held as an enemy combatant in the US naval brig in Charleston, S.C., for five years and eight months.
Last Friday, Mr. Obama ordered Mr. Marri released from military detention and transferred to the criminal justice system.
The move was hailed by human rights activists who believe terror suspects should be prosecuted in civilian courts rather than held without charge by the military.
But the move is also controversial. It is seen by some analysts as a way of preventing the Supreme Court from ruling on the constitutionality of Marri's military detention. The high court was to hear the case in April.
Marri's lawyers are urging the justices to hear the case and issue a decision. "It is especially important that the prospect of further military detention be dispelled, once and for all, after years of intensive litigation in the lower courts, now that the issue is squarely presented," writes Jonathan Hafetz of the American Civil Liberties Union in his brief to the high court.
He says contrary to government statements, Marri's habeas corpus petition is not moot. "The president's memorandum directing Al-Marri's transfer to civilian custody does not repudiate the possibility that Al-Marri will be returned to military custody and detained without charge," Mr. Hafetz says.
The government may be trying to evade high court review to preserve a legal precedent in the appeals court favorable to the government, the lawyer says. In response, government lawyers suggest the Supreme Court vacate the Fourth US Circuit Court of Appeals decision in the Marri case.
But even if the Supreme Court vacated the Marri decision, the government would still have the precedent from a similar case, involving former enemy combatant Jose Padilla as precedent to justify future open-ended detentions of a US citizen or legal resident as an enemy combatant.
Nowhere in the government's brief does the Obama administration renounce President Bush's assertion of executive power to designate and detain enemy combatants without charge.
Meanwhile, in San Francisco, administration lawyers are working to defend Mr. Yoo in a civil lawsuit filed by lawyers on behalf of Mr. Padilla, the former enemy combatant.
As in the Al-Marri case, Padilla's lawyers spent years challenging the constitutionality of his military detention. Then, the day before the Supreme Court was to consider hearing his appeal, the Bush administration transferred Padilla to the criminal justice system. Padilla was convicted in a Miami trial and is serving a 17-year prison sentence.
Yoo was a key architect of the military detention program who authored a series of controversial legal opinions justifying harsh interrogation techniques that came to be known as the "torture memos," the lawsuit says.
"Yoo intentionally used the memos to evade well-established legal constraints to justify illegal policy choices that he knew had already been made," writes Jonathan Freiman, a Yale Law School lecturer and lawyer for Padilla. "Yoo acted with specific intent of immunizing government officials from criminal liability for participating in practices that he knew to be unlawful." Yoo's lawyers counter that he did nothing more than offer legal advice to government officials. "It was the president, not Yoo, who made the enemy combatant designation," they write.
As part of that litigation, several memos were made public by the Justice Department this week. Three are being used in Mr. Yoo's defense. Their release offered a glimpse of a backshop discussion over how to circumvent fundamental constitutional protections seen as potentially complicating efforts to win the war on terror.
A memo coauthored by Yoo in October 2001 concludes that the Fourth Amendment's prohibition against unreasonable searches and seizures would not apply to US forces ordered to find and neutralize terror suspects on American soil. US military forces "must be free to use any means necessary to defeat the enemy's forces, even if their efforts might cause collateral damage to United States persons," the memo says.
It also justifies the destruction of private property without compensation and suggests free speech and free press rights "may also be subordinated to the overriding need to wage war successfully."