White House Dismissed Legal Advice On Detainees

Michael Abramowitz
Washington Post
Saturday, June 21, 2008

Senior lawyers inside and outside the Bush administration repeatedly warned the White House that it was risking judicial scrutiny of its detention policies in Guantanamo Bay if it did not pursue a more pragmatic legal strategy that considered the likely reaction of the Supreme Court. But such advice, issued periodically over the past six years, was ignored or discounted, according to current and former administration officials familiar with the debates.

In August 2006, for example, the top lawyer at the State Department told senior officials at the White House that unless they won a congressional mandate that broadly supported their system of detaining terrorism suspects, their goal of keeping the detainees locked up was in jeopardy. "I can virtually guarantee you, without a legislative basis, federal courts are not going to be willing to uphold the indefinite detention of unlawful combatants," John B. Bellinger III warned in an e-mail.

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The e-mail, disclosed by former White House officials familiar with the intense internal debates over detainee policy, was one of several red flags for the White House in its fierce battle to keep the detention facility in Cuba free of judicial oversight.

The result, they said, has been a series of losses at the Supreme Court, including last week's 5 to 4 ruling that detainees at Guantanamo have a constitutional right to a review of their detention in federal courts -- a ruling that holds out the prospect of heavy litigation and close judicial scrutiny of decision-making that the administration has long argued is best left to the president.

"Through misjudgment and overreaching, the White House ended up with the very result it sought to avoid -- heavy judicial involvement and erosion of deference to the president's view of wartime necessities," said Matthew Waxman, who worked on detainee affairs at the State Department and the Pentagon before leaving last fall to teach law at Columbia University.

Full article here.

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