More continuation of Bush administration lawlessness from the Obama administration

While I was out sick there were a couple of stories relating to the Obama administration's disturbing developing habit of maintaining some of the very same Executive powers that led to so many abuses during the last eight years that I wanted to blog about. As usual, however, Glenn Greenwald covered them and did so far better than I would have done. So I'll simply highlight his posts on them if you haven't already read them.

"Obama's efforts to block a judicial ruling on Bush's illegal eavesdropping"

The Obama DOJ's embrace of Bush's state secrets privilege in the Jeppesen (torture/rendition) case generated substantial outrage, and rightly so. But it's now safe to say that far worse is the Obama DOJ's conduct in the Al-Haramain case -- the only remaining case against the Government with any real chance of resulting in a judicial ruling on the legality of Bush's NSA warrantless eavesdropping program ...

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One of the worst abuses of the Bush administration was its endless reliance on vast claims of secrecy to ensure that no court could ever rule on the legality of the President's actions. They would insist that "secrecy" prevented a judicial ruling even when the President's actions were (a) already publicly disclosed in detail and (b) were blatantly criminal -- as is the case with the NSA warrantless eavesdropping program, which The New York Times described on its front page more than three years ago and which a federal statute explicitly criminalized. Secrecy claims of that sort -- to block judicial review of the President's conduct, i.e., to immunize the President from the rule of law -- provoked endless howls of outrage from Bush critics.

Yet now, the Obama administration is doing exactly the same thing. Hence, it is accurately deemed "a blow to the Obama administration" that a court might rule on whether George Bush broke the law when eavesdropping on Americans without warrants. Why is the Obama administration so vested in preventing that from happening, and -- worse still -- in ensuring that Presidents continue to have the power to invoke extremely broad secrecy claims in order to block courts from ruling on allegations that a President has violated the law?

"Is Obama embracing the lawless, omnipotent executive?"

According to Obama, only the President has the power to decide what is done with classified information, and neither courts nor Congress have any power at all to do anything but politely request that the President change his mind. Therefore, the President has the unilateral, unchallengeable power to prevent any judicial challenges to his actions by simply declaring that the relevant evidence is a secret and refusing to turn it over to a court, even if ordered to do so. That's the argument which the Obama DOJ is now aggressively advancing -- all in order to block any judicial adjudication of Bush's now-dormant NSA program.

"Preventing a judicial ruling on the power to imprison without charges"

After being held in captivity as an accused "enemy combatant" by the U.S. Government for more than five years without charges or a trial of any kind, Ali Al-Marri -- who was a legal resident in the U.S. and was on U.S. soil at the time of his detention -- was, two weeks ago, finally indicted and charged with various crimes in a federal court. The indictment came as the U.S. Supreme Court was set to rule whether the Constitution allows the President to imprison legal residents inside the U.S. as "enemy combatants" and keep them imprisoned indefinitely with no charges or trial (both sides of the appellate court decision agreed that the legal analysis is the same for the power to imprison U.S. citizens). But now there will be no such ruling, because the Obama administration (over the objections of Al-Marri's ACLU lawyer) successfully convinced the Court to dismiss the case on the ground that the indictment of Al-Marri renders the question "moot." This critical question will thus remain unresolved by the Supreme Court.

Meanwhile, Ed Brayton notes that President Obama has reserved the right for himself to use signing statements, one of the principal means by which President Bush asserted - hundreds of times - his intention to disregard the laws of this nation.

And this article from Dahlia Lithwick which dissects and rebuts any reasons that the Obama administration might have for not holding the previous administration accountable to the rule of law (as it is obligated to do.)

Having inherited an undifferentiated mass of legal "war on terror" doctrine from the Bush administration's constitutional chop shop, President Obama finds himself in the position of being Bush's Secret-Keeper. Picking its way warily through a minefield of secrecy and privacy claims, the Obama administration this week released nine formerly classified legal opinions produced in the Office of Legal Counsel (while holding back others that are being sought) and brokered a deal whereby Karl Rove and Harriet Miers will finally testify about the U.S. attorney firings (but not publicly). Meanwhile, the administration clings to its bizarre decision to hold fast to the Bush administration's all-encompassing view of the "state secrets" privilege, and the Nixonian view of executive power deployed to justify it. The Obama administration has also been quick to embrace the Bush view of secrecy in cases involving the disclosure of Bush era e-mails and has dragged its feet in various other cases seeking Bush-era records. If there is a coherent disclosure principle at work here, I have yet to discern it.

After going on to examine some hypothetical reasoning for this behavior, Lithwick concludes

The fundamental mistake underpinning all the thinking above is that openness about past errors leads inexorably to ugliness, politicization, and rancor. But it's worth recalling for a moment that we are already knee-deep in ugliness, politicization, and rancor. Transparency is not necessarily the first step toward indiscriminate prosecutions of everyone who ever worked for President Bush. It doesn't mean that from now until forever, each administration will criminalize the policy differences of the administration before. It doesn't mean that all mistakes are war crimes, or that hereinafter all investigations are all "perjury traps." That's the kind of binary, good/evil thinking we were supposed to have left behind us last November.

If President Obama has some better rationale for hiding the markers along the road to torture or eavesdropping from the American people, it's time we heard it. But keeping this information from us for our own good is not an acceptable argument. The most recent OLC memos demonstrate precisely why the last eight years were so extraordinary. The suggestion that we just need to get over it is starting to sound extraordinary, too.