And this administration continues to go down a bafflingly conservative rabbit hole.
The Obama administration has decided not to seek new legislation from Congress authorizing the indefinite detention of about 50 terrorism suspects being held without charges at at Guantanamo Bay, Cuba, officials said Wednesday. Instead, the administration will continue to hold the detainees without bringing them to trial based on the power it says it has under the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the president to use force against forces of Al Qaeda and the Taliban.
In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies. But President Obama’s advisers are not embracing the more disputed Bush contention that the president has inherent power under the Constitution to detain terrorism suspects indefinitely regardless of Congress....
Well, bully for them! That way they can only violate the Constitution a little instead of a lot. Congratulations on working that out, people!
[...] Still, the position surprised some critics who had expected after a speech by Mr. Obama in May that he would seek legislation to put the system of indefinite detention on firmer political and legal ground. In that speech at the National Archives, Mr. Obama said that he was considering continuing indefinite detention in some limited cases but that he would not act unilaterally. “We must recognize that these detention policies cannot be unbounded,” he said at the time. “They can’t be based simply on what I or the executive branch decide alone.” He said he would “work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.” [...]
Yeah, well, it's a bit late for that. To say nothing of the fact that the very concept of indefinitely detaining someone without charges is absolutely antithetical to the Constitution, and, allegedly, our values.
Frankly, I expect that the administration decided not to go for legislation at this time because whenever they floated the trial balloons, they got significant push back from people at large, resulting in a twitchy Congress. For entirely understandable reasons, people are perfectly happy with the concept of indefinite detention without legal basis, as long as it's done in a way that doesn't make them have to think about it. As soon as you come out and say, "The president is going to ask Congress to pass a law making it legal for individuals to be detained indefinitely without any sort of trial or real opportunity to fight their imprisonment," people discover that they really dislike that concept. There is, after all, no reasonable way to ensure that it would only be used against terrorists and noncitizens. What happens if a citizen and resident of the US is accused of being a terrorist, with information of a sort that the government doesn't want heard in any court anywhere? It's not an unreasonable fear; that's essentially what happened to Jose Padilla. Eventually the government was bludgeoned by the courts into actually bringing a case, which they did win -- though the case is being appealed. Mind, it's a particularly fruitless appeal. It's possible, though not probable, that the Court of Appeals will agree with Padilla and overturn the conviction. However, it's unlikely in the extreme that the Supreme Court would sustain that result. Even if they did, the government has too much invested to simply let it go-- even though it's an entirely different adminstration.
But I digress.
And then there's this bit of information:
By Carrie Johnson
Washington Post Staff Writer
Wednesday, September 23, 2009
The Obama administration will announce a new policy Wednesday making it much more difficult for the government to claim that it is protecting state secrets when it hides details of sensitive national security strategies such as rendition and warrantless eavesdropping, according to two senior Justice Department officials. The new policy requires agencies, including the intelligence community and the military, to convince the attorney general and a team of Justice Department lawyers that the release of sensitive information would present significant harm to "national defense or foreign relations." In the past, the claim that state secrets were at risk could be invoked with the approval of one official and by meeting a lower standard of proof that disclosure would be harmful. That claim was asserted dozens of times during the Bush administration, legal scholars said.
The shift could have a broad effect on many lawsuits, including those filed by alleged victims of torture and electronic surveillance. Authorities have frequently argued that judges should dismiss those cases at the outset to avoid the release of information that could compromise national security.
The heightened standard is designed in part to restore the confidence of Congress, civil liberties advocates and judges, who have criticized both the Bush White House and the Obama administration for excessive secrecy. The new policy will take effect Oct. 1 and has been endorsed by federal intelligence agencies, Justice Department sources said. "What we're trying to do is . . . improve public confidence that this privilege is invoked very rarely and only when it's well supported," said a senior department official involved in the review, who spoke on the condition of anonymity because the policy had not yet been unveiled. "By holding ourselves to this higher standard, we're in some way sending a message to the courts. We're not following a 'just trust us' approach."
[...] Under the new approach, a team of career prosecutors must review and the attorney general must approve any assertions of the state secrets privilege before government lawyers can make that argument in court. Officials said the new policy will ensure that the secrecy arguments are more narrowly tailored and that they are not employed to hide violations of law, bureaucratic foul-ups or details that would embarrass government officials...
[...] Since February, a Justice Department task force of eight lawyers has been sifting through about a dozen pending cases in which state secrets arguments have been made. So far, they have reversed course in only one lawsuit -- a bizarre case in federal court in the District in which a former agent for the Drug Enforcement Administration accuses the State Department and the CIA of installing listening devices in a coffee table in his home.
It's going to be interesting to see how much, if at all, this changes the government's approach. You're not likely to bring this sort of thing up with a team of government prosecutors in the first place unless you're fairly certain they'll agree with you, so it may limit the number of issues presented for state secrets arguments in the first instance. But if you do bring it to that committee, I'd wager that it has a good chance of being approved.
And, of course, as noted in the article, this has no effect on the cases that the Obama Administration inherited from Bush that are already making their way through the courts, and in which, much to the courts' own surprise, the Obama administration has asserted a state secrets privilege every bit as sweeping as the Bush administration.
Add to that the fact that Obama has been given to using signing statements with the bills he signs, much as Bush had done, and really, one begins to wonder why we bothered electing a Democrat in the first place if he's going to act like a vaguely moderate-to-conservative Republican.
Posted by iain at September 24, 2009 12:21 PM
