An Emerging Progressive Consensus on Obama's Executive Power and Secrecy Abuses

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 individual

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

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 supportersas the most trustworthy and praiseworthy authorities on these matters.

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:

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.

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."

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 Jurissaid 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."

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):

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)?


(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. . . .

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" . . . .

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.

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.

* * * * *

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.

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.

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.

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."

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