Lawyers Warned White House that Courts Would Overturn Gitmo Policies

Guantanamo/Detainees

Lawyers Warned White House that Courts Would Overturn Gitmo Policies

Posted Jun 23, 2008, 05:44 am CDT
By Debra Cassens Weiss

The administration rejected advice from the solicitor general and other lawyers that its Guantanamo policies would be overturned by the federal courts.

In an e-mail, top State Department lawyer John Bellinger III told the White House that its system of detention of terrorism suspects wouldn’t survive without a broad congressional mandate, the Washington Post reports.

"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," he wrote.

A similar warning was sounded by Solicitor General Paul Clement in a White House meeting, according to the book The Terror Presidency, written by former Justice Department official Jack Goldsmith. Clement warned of the result despite what he saw as solid legal arguments in support of the detention policies.

The decision to reject that advice had the effect of inviting court intervention and undermining a White House effort to advance presidential powers, observers told the newspaper. In the most recent ruling on June 12, the U.S. Supreme Court ruled the Guantanamo detainees had a constitutional right to seek habeas corpus.

One White House official involved in detainee policy told the Post the administration knew the court’s latest ruling was a possibility. "I don't think it takes a rocket scientist to say there was a chance that the administration could lose this case," he said. But the administration proceeded anyway. "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," he said.

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Guantanamo/Detainees