The Finer Points of Confusion

Noah Feldman, "A Prison of Words"

Perhaps what’s most important here is what Mr. Obama's lawyers do not say. The Bush White House long insisted that the president had inherent power as commander in chief to do whatever it took to defend the country — including overriding American and international law. The Obama filing, however, is silent on the topic of inherent executive power. Indeed, the magic words "commander in chief" never even appear.

Technically, the Obama lawyers have not abandoned the argument for broad presidential power, just implied that such authority is unnecessary to get them what they want.

Yet omitting the claim to unfettered executive authority shows respect for Congress and international standards. In effect, the Obama administration is saying to the courts that if the detainees cannot be held as a matter of federal or international law, judges should release them. This approach is brave — so brave it might even prove foolhardy if the courts, sick of nearly a decade of detention, decide to clear the decks.