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An Emerging Progressive Consensus on Obama’s Executive Power and Secrecy Abuses April 14, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, Torture.
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by Glenn Greenwald

“with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them.”

In the last week alone, the Obama DOJ (a) attempted to shield Bush’s illegal spying programs from judicial review by (yet again) invoking the very “state secrets” argument that Democrats spent years condemning and by inventing a brand new “sovereign immunity” claim that not even the Bush administration espoused, and (b) argued that individuals abducted outside of Afghanistan by the U.S. and then “rendered” to and imprisoned in Bagram have no rights of any kind — not even to have a hearing to contest the accusations against them — even if they are not Afghans and were captured far away from any “battlefield.”  These were merely the latest — and among the most disturbing — in a string of episodes in which the Obama administration has explicitly claimed to possess the very presidential powers that Bush critics spent years condemning as radical, lawless and authoritarian.

It is becoming increasingly difficult for honest Obama supporters to dismiss away or even minimize these criticisms and, especially, to malign the motives of critics.  After all, the Obama DOJ’s embrace of many (though by no means all) of the most radical and extremist Bush/Cheney positions — and the contradictions between Obama’s campaign claims and his actions as President — are now so glaring and severe that the harshest denunciations of Obama’s actions are coming from those who, during the Bush years, were held up by liberals and by Obama supporters as the most trustworthy and praiseworthy authorities on these matters.  

The Electronic Frontier Foundation (EFF) — which, to the cheers of liberals everywhere, was one of the nation’s most stalwart defenders against the Bush assault on core civil liberties — declared last week:  “In Warrantless Wiretapping Case, Obama DOJ’s New Arguments Are Worse Than Bush’s.”  On Tuesday night, Keith Olbermann began his show by announcing:  

President Obama‘s Justice Department now is not just defending Bush officials from lawsuits surrounding National Security Agency domestic spying, but seeking to expand the government’s authority by making it immune from any legal challenge regarding wiretapping — ever.

Olbermann went on to add that “the Obama administration is just flat-out dead wrong about this” and then contrasted Obama’s campaign statements on transparency with his conduct as President and concluded:  “That was then, this is now.”  Law Professor Jonathan Turley — who, as a regular on Olbermann’s show during the Bush years, was one of the single most-cited and praised sources by the netroots on matters of executive authority — said that Bush officials should wave a “Mission Accomplished” banner because they “have Barack Obama adopting the same extremist arguments and, in fact, exceeding the extremist arguments made by President Bush.”

Meanwhile, Josh Marshall’s TalkingPointsMemo surveyed a panel of experts last week — including one from Center for American Progress, headed by Obama transition chief John Podesta — to ask and answer these questions about Obama’s argument in the illegal surveillance cases:

Does it represent a continuation of the Bushies’ obsession with putting secrecy and executive power above basic constitutional rights? Is it a sweeping power grab by the executive branch, that sets set a broad and dangerous precedent for future cases by asserting that the government has the right to get lawsuits dismissed merely by claiming that state secrets are at stake, without giving judges any discretion whatsoever?

In a word, yes.

Sen. Russ Feingold — probably the single most praised liberal politician of the last eight years — declared himself “troubled” by the Obama administration’s conduct on secrecy and illegal surveillance and said he would seek to enact legislation to limit Obama’s powers as soon as possible.  Nancy Pelosi vowed Congressional action to limit the Obama DOJ’s position, proclaiming:  “we can never have a repetition of what was done under the Bush administration or a continuation of that.”  

When asked about investigations of Bush crimes, Pelosi also said “we have a little bit of difference of opinion between the White House and the Congress” because the White House “wants to go forward” (Beltway code for allowing Bush crimes to go uninvestigated and unpunished) whereas Congressional Democrats “believe that we have to take a look at what happened[, since] there may be criminal activity.”  And early Obama booster Andrew Sullivan warned: “with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them.”

The Obama DOJ’s conduct with regard to detainee rights at Bagram is provoking even harsher criticism among the favorite sources of progressives.  The New York Times Editorial Board — a leading establishment voice opposing Bush radicalism — today condemned what it called “The Next Guantanamo” and lambasted Obama for advancing “extravagant claims of executive power and perpetuat[ing] the detention policies of the Bush administration.”  Charlie Savage, who won a Pulitzer Prize at The Boston Globe for exposing Bush’s use of signing statements to break the law, in February described the Obama DOJ’s position as “embracing a key argument of former President Bush’s legal team” and as “a blow to human rights lawyers who have challenged the Bush administration’s policy of indefinitely detaining ‘enemy combatants’ without trials.”  

Last night, Digby lamented that “it’s clear that the Holder DOJ is going to keep at least some of the legal pillars of the Bush GWOT regime in place” and that “it’s profoundly disappointing that the administration is actually seizing more executive power in the case of the states’ secrets argument and perpetuating a lawless prison regime outside our borders.”  The American Prospect‘s Adam Serwer complained this morning that “what the Obama administration is essentially arguing is that it has the authority to detain terror suspects indefinitely without trial and without charges” and that Obama’s position “stands in stark contrast to statements Obama made during the campaign.”

International law professor Kevin Jon Heller of Opinio Juris said that “the Obama administration’s stance on Bagram is deplorable” and that Obama was trying to “create a legal black hole” in Afghanistan identical to what Obama vehemently condemned at Guantanamo.  The ACLU’s Jonathan Hafetz warned that the Obama position was creating “the new Guantanamo” and, if they prevail, “the Obama administration will continue to be free to create a prison outside the law.”  Liberal law professor Darren Hutchinson said of Obama’s Bagram position:  “This is the same argument that the Bush administration made” and, because of it, “Bagram could become the functional equivalent of Guantanamo Bay.”  And on Thursday, former DOJ official Bruce Fein — one of the most eloquent (and widely-cited-by-liberals) authorities on the Bush assault on the Constitution — extensively detailed what he called “an emerging pattern of mightily expansive claims of executive authority by the new administration” as part and parcel of “President Barack Obama’s claim to czarlike powers in a perpetual global war against international terrorism.”

Perhaps most significantly, Digby last night documented that Marty Lederman — a hero to the netroots when he used his blog and authority as a former OLC official to mercilessly critique the Bush approach to executive power and is now Obama’s number 3 OLC official — emphatically condemned (last year) the Bush policy of denying rights to Bagram detainees:  exactly the policy which the Obama DOJ is now defending.  Digby wrote (emphasis added):

I continue to wonder where Marty Lederman is in all this since he went to the Justice department. There is nobody who was more critical of these same policies during the Bush years and for whom I have more respect. But I wonder if he is using his thorough analyses of the Bush policies to end them?

In the wake of the Boumadiene decision [Lederman] wrote:

As I noted below, the two most important questions the Court did not answer are:

(i) Would habeas rights extend to alien detainees held in foreign locations other than GTMO (such as Bagram)?

and

(ii) What is the substantive standard for who may be indefinitely detained?

The Court was not, however, completely silent on these questions; it provided hints about how they might be resolved. . . .

So, as for the first question: Would habeas rights extend to alien detainees held in foreign locations other than GTMO? That is to say, can the military avoid the impact of Boumediene simply by detaining or transferring all alleged alien enemy combatants to a different facility, such as at Bagram?

Short answer: No. . . .

Most importantly, the Court strongly implies that if, as in this case, the government chooses a foreign detention facility for the very purpose of avoiding judicial review (or perhaps even if the military retains a prisoner at a battlefield locale for the same reason), the Court will not look kindly upon such efforts. As I noted below, I believe the single most important sentence in the opinion might be this one: “The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain.”  The political branches will not be permitted “to govern without legal constraint” or to “have the power to switch the Constitution on or off at will” . . . .

During the Bush years Lederman’s position couldn’t have been clearer that detainees such as those who applied for habeas corpus at Bagram clearly were, should be subject to the writ. Read his posts in this fascinating exchange if you doubt me. He even suggested that the Bagram prisoners, who he admits have been held in the absolute worst of conditions, should be sent to Guantanamo where at least they’d have some rights. It’s very difficult to believe that he would endorse this appeal.

Though Lederman acknowledged practical difficulties that might prevent full habeas hearings for Bagram detainees, he clearly stated that the crux of the Boumediene ruling applies to Bagram as it applies to Guantanamo — the exact opposite of the claim the Obama DOJ is now pressing.

Even for the hardest-core Obama loyalists, it’s rather difficult to attribute these increasingly harsh condemnations of Obama’s civil liberties, secrecy and executive power abuses to bad motives or ignorance when they’re coming from the likes of Russ Feingold, TalkingPointsMemo, the Center for American Progress, Nancy Pelosi, EFF, the ACLU, The New York Times Editorial Board, Keith Olbermann, Jonathan Turley, The American Prospect, Bruce Fein, Digby, along with some of the most enthusiastic Obama supporters and a bevvy of liberal law professors and international law experts — those who were most venerated by progressives during the Bush era on questions of the Constitution and executive power. 

 * * * * *

That the Obama DOJ has repeatedly embraced the very legal theories responsible for much of the intense progressive rage towards the Bush/Cheney regime is now beyond dispute.  The question of motive — of why Obama is doing this — is far less clear.  Motives in general are notoriously difficult to discern.  It’s often hard to know one’s own motives, let alone those of others, and one can only speculate about the reasons for Obama’s actions.

There is, as Pelosi said this week, clearly a strong aversion — one might say “desperation” — on the part of the Obama White House to avoid anything that could increase the pressure to commence investigations and prosecutions of Bush crimes.  As Slate‘s Dahlia Lithwick succinctly put it:  “by keeping the worst of the Bush administration’s secrets hidden, the Obama Justice Department can defer awkward questions about prosecuting the wrongdoers.” 

Preserving the President’s general ability to block lawsuits alleging illegal conduct on the part of the President obviously enables Obama to invoke that power whenever there are allegations that he is breaking the law.  The power to abduct people and put them in cages indefinitely without having to answer to anyone about what you’re doing — the power Obama is claiming he possesses in the Bagram case — is obviously a potent authority that a typical President fighting a “war” would instinctively want to wield.  And Howard Fineman was likely correct when he told Olbermann on Tuesday night that Obama is petrified of alienating the permanent intelligence and military establishments in Washington which might be alarmed by any attempt to abandon these vast powers, particularly where reversing course could raise the likelihood of prosecutions.

Ultimately, though, motives don’t matter.  Simply put, there is no excuse, justification or mitigation for advocating blatantly unconstitutional and tyrannical powers or claiming that secrecy shields the President from the rule of law.  Nor is the faith-based belief that Obama is a Good Person who therefore deserves trust even remotely rational or relevant.  As Professor Turley put it on Countdown:  “It doesn‘t matter if you are a good person doing bad things. You are doing bad things.”  These secrecy and detention powers are among the most dangerous and tyrannical powers a President can seize, and Obama’s attempt to cling to them is deplorable no matter his “motives.”

It’s certainly true that Democrats and liberals, in general, overwhelmingly approve of the job Obama is doing.  That makes perfect sense.  It is inconceivable that many progressives would say otherwise three months into the tenure of a new Democratic President.  The country is still celebrating the fact that George Bush and Dick Cheney are no longer in power.  And there are many important areas in which, from a progressive perspective, Obama’s preliminary actions are encouraging:  budget policy, changes in tone and even mindset in some spheres of America’s foreign policy, reversals of Bush’s most controversial domestic policies, some excellent presidential appointments.  By themselves, Obama’s future judicial nominees can justify efforts to elect him.  To condemn Obama’s executive power and secrecy abuses is not to posit that Obama is the general equivalent of Bush or that his victory over McCain/Palin was irrelevant.

It’s also possible Obama may (or may not) take actions in the future — releasing the last OLC torture memos, granting full due process rights to Guantanamo detainees, offering habeas hearings to abducted-and-rendered Bagram prisoners — that could substantially improve his record in the areas of accountability, transparency and adherence to Constitutional guarantees.  If he does those things, credit will be warranted — but only if and when he does them.  And thus far, he has not.  In most instances, he has done the opposite.

Whatever else one might say, the rule of law, the Constitution, and core civil liberties are the centerpiece of a healthy and well-functioning government, and nothing justifies an assault on those safeguards.  That was the argument most progressives made throughout the Bush presidency, and the more Obama continues on the Bush/Cheney path in this area, the more solid the progressive consensus against his actions becomes.  

UPDATE:  On Friday, I suggested to Greg Sargent on Twitter that the White House should be forced to say whether Obama supports passage of the State Secrets Act — legislation which would significantly limit Obama’s power to invoke “secrecy” as a means of blocking judicial review of presidential actions and which (during the Bush years) was supported by leading Senate Democrats, including Joe Biden and Hillary Clinton, as a response to Bush’s use of the same doctrine.  The Act was re-introduced in February of this year by Russ Feingold, Arlen Specter, John Conyers and others as a response to Obama’s abusive invocation of the privilege in the rendition/Jeppesen case. 

Sargent reports today that he posed the question and the White House simply refuses to say whether Obama supports or opposes the legislation.  As Sargent notes, the Act “represented the consensus view of the Democratic Party a year ago” and this question thus “sets up an unappetizing political prospect: The President would be opposing the corrective that is favored by prominent Senate Dems and once enjoyed the support of his Vice President and Secretary of State.”

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the Bush administration’s use of executive power, released in May 2006. His second book, “A Tragic Legacy“, examines the Bush legacy.

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