White House Dismissed Legal Advice On Detainees

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By Michael Abramowitz
Washington Post Staff Writer
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.

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.

"The administration pursued the policy course it wanted," said former State Department counselor Philip D. Zelikow, who was involved in some of the debates over detainee policy. "It planned for the best instead of preparing for the worst, and decided that it would prefer to fight for what it wanted."

Even some conservative allies of the administration agree that the White House may have mishandled elements of its strategy, but they pin most of the blame for the administration's predicament on the leanings of the Supreme Court.

"It may well be fair to fault the Bush administration politically for failing to work with Congress early on to develop a statutory framework governing Guantanamo detainees," said M. Edward Whelan III, a former Bush Justice Department official who now heads the Ethics and Public Policy Center. "But the narrow Supreme Court majorities in the Guantanamo cases deserve far harsher criticism for their gross misreadings of the law and their abandonment of sound precedent on which the administration reasonably relied."

White House officials said it is unfair to second-guess their strategy, given the narrow divisions on the court. "I don't think it takes a rocket scientist to say there was a chance that the administration could lose this case," said one top official involved in detainee policy, referring to last week's ruling. But he argued that "it would be very unusual for a Congress and executive branch to formulate national security policy based on the expectation that the Supreme Court would misinterpret the Constitution."

From the days soon after the Sept. 11, 2001, attacks, the Bush administration has been divided over what to do with al-Qaeda and Taliban members and others picked up in Afghanistan and elsewhere. Hundreds of terrorism suspects were sent to the naval facility at Guantanamo Bay on the theory that it would be easier to keep them outside the formal U.S. court system.

Administration officials debated whether the detainees were protected by the Geneva Conventions; whether the president could order detentions without an act of Congress; and whether the detainees had the right to appeal their detentions.

A key issue for the White House was maximizing the power of the president -- a motivation that led the administration into a troubled Supreme Court strategy, according to several participants in these debates. A turning point, they said, came in 2004, when the Supreme Court announced that it would review whether the government could hold Yaser Esam Hamdi, a U.S. citizen whom the administration considered an enemy combatant, without trial or charge.


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