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08/06/2013

Ajam v. Obama: The President's Power to Make Peace (with One Person)
Michael Ramsey

At SCOTUSblog, Lyle Denniston has an interesting post about Ajam v. Obama, a pending case involving a Guantanamo inmate (Ajam) whom the President wants to release, but whose release is impeded by various congressional restrictions on transfering prisoners out of Guantanamo.  Those restrictions, Ajam argues are unconstitutional as an infringement of exclusive presidential power:

Here is the core of the new constitutional argument his lawyers make: “From the proposition that only the President can direct the use of military force against a specific target within the broad scope of a congressional authorization to use military force, it follows that only the President can determine whether and when to desist from the use of that force against a specific target.” (italics in the original)

Citing the example of tactical decisions made when U.S. military forces were operating in Iraq, and a retreat that was ordered from the city of Fallujah, the document said that a presidential or military commander decision to order a retreat is the corollary of deciding no longer to act against Ajam. “Like other acts of desisting, a decision to transfer or release a detainee reflects tactical judgment uniquely for the Commander-in-Chief, and subject entirely to his risk-benefit analysis as commanding general,” the filing contended.

I agree with the basic argument that the President has sole power to make tactical command decisions.  (Ajam might want to cite this article; but see here).  However, it may be -- though I haven't double checked -- that all the congressional restrictions at stake here are in the form of restrictions on spending, to which I'm much more sympathetic, constitutionally speaking.  As I see it, the difference is that Congress lacks an enumerated power to make tactical command decisions, but it does have the power to limit spending.

As Denniston notes, the President has similarly argued in signing statements that the restrictions on Guantanamo transfers are unconstitutional.