Steven G. Bradbury

“ Insofar as the early Supreme Court, relying ont he Captures Clause, commented favorably on Congress's authority to regulate the treatment of prisoners of war—and, indeed, actually suggested taht the exercise of such congressional authority counseled against locating the authority to detain enemy prisoners solely in the general war powers of the President—we have substantial doubts about the assertion that the Captures Clause grants no power to Congress with regard to the detention and treatment of enemy combatants. ”

“ We do not dooubt that the existence of a government interest in preventing catastrophic terrorist attacks is highly relevant in determining whether a particular search would be "resonable" under the Fourth Amendment. Although warrants are often required in the criminal law context, the Supreme Court has recognized warrantless searches to be "reasonable" in a variety of situations involving "special needs" that go beyond the routine interest in law enforcement. ”

“ The prior opinion of this Office suggesting that Congress has no role to play concerning the prosecution of enemy combatants is incorrect. See 4/8/02 Swift Justice Opinion at 17-19. Furthermore, the power " [t] o make Rules for the Government and Regulation of the land and naval Forces," U.S. Const. art. I, § 8, cl. 14, gives Congress a basis to establish standards governing the U.S. military's treatment of detained enemy combatants, including standards for, among other things, detention, interrogation, and transfer to foreign nations. ”

“ Legal Issues Regarding Proposed Broadcasts into Cuba at 2, 11-13 (May 23, 2007) ("Cuba Broadcasting File Memorandum) . We observed that Presidents have authorized by the terms of the treaties where authorized by Congress or where suspension was authorized by the terms of the treat of under recognized principles of international law, such as where another party has materially breached the treaty or where there has been a fundamental change in circumstances. ”

“ The President, like all officers of the Government, is not above the law. He has a sworn duty to preserve, protect, and defend the Constitution and
3
faithfully to execute the laws of the United States, in accordance with the Constitution. Responses of Steven G. Bradbury, Nominee to be Assistant Attorney General for the Office of Legal Counsel, to Questions for the Record from Senator Richard J. Durbin, at 1 (Oct. 24, 2005) . ”

“ The President certainly has significant constitutional powers in this area, but the assertion in these opinions that Congress has no authority under the Constitution to address these matters by statute does not reflect the current views of OLC and has been overtaken by subsequent decisions of the Supreme Court and by legislation passed by Congress and supported by the President. ”

“ As the January 2006 white paper pointed out, " [i] n the specific context of the current armed conflict with al Qaeda and related terrorist organizations, Congress by statute [in the AUMF] had confirmed and supplemented the President's recognized authority under Article II of the Constitution to conduct such surveillance to prevent further catastrophic attacks on the homeland." Id. at 2. ”