Friday, April 10, 2009

I (still) like our new President. But.

I do not like this. Or, for that matter, the previous affirmations of the State Secrets privilege for a program whose existence everyone is aware of and, thus, what's to endanger? Especially when what's at issue is whether sworn officers of the courts--specifically, judges--can look at evidence to determine whether the plaintiff has a case.

Given the undeniable fact that the previous administration's Department of Justice left the present administration's DOJ with several big fat legal Gordian Knots to unpick (that, I might add, should never have been tied to begin with), I still hold out hopes that Obama's folks are erring on the side of caution until they can figure out the scale of the messes and then proceed as they would prefer--something like what we've seen with the handling of the financial crisis. It's still very early in this administration, after all. But as more than a few people are pointing out, it was precisely the Bush administration's indiscriminate use of the State Secrets privilege that candidate Obama used as part of his critique of that administration's intrusions on civil liberties. Absent some sort of thorough--and constitutionally-satisfactory--rationale for what's going on from the Department of Justice, I confess to some queasiness about these decisions.

I signed up for a whole lot of stuff when I signed up with Obama, some of it with a fair amount of assurance, some on faith. One of those things I signed up for was that he, with his background in constitutional law, would restore a respect for civil liberties that had had been sorely lacking in the Bush administration. Thursday's actions don't square with what I signed up for.

UPDATE: Here is a Department of Justice statement, issued this morning, regarding yesterday's case.


R. Sherman said...

The case you cite is only one of many wherein the current administration is quietly maintaining precedent set by the previous, which precedent expands the power of the executive branch. I believe this is ubiquitous in every administration, regardless of party.

The reason for this is quite simple. Each branch zealously and jealously guards its own power. When a person becomes POTUS, S/he realizes that suddenly, all the power of the executive branch is concentrated in him/her. Very, very quickly does that realization go to one's head and protecting that concentration and expanding it become paramount goals.

Case in point: The War Powers Act passed during the Ford Administration to require the president to consult Congress and obtain its permission for continued military action after the military has been deployed in combat for more than ninety days. Each president who has deployed the military, from Ford to Carter to Reagan to Bush I to Clinton to Bush II nominally complied, bet each one informed Congress that his compliance was without prejudice to any future position questioning the law as an unconstitutional usurpation of Executive power by Congress.

Other examples in the current administration since January 20:


Torture prosecutions.

Legal Relief In Federal Courts for GWOT Detainees.

The more things "change," . . .


R. Sherman said...

I hate to be self-referential, but this post reminded me of this, which is why I trust no politician, regardless of the party mantle s/he happens to be wearing at any given moment.


Pam said...

I'm so behind on so many things, including following the details of the Obama presidency (I fear that I still am celebrating that GW is out of office, and not paying attention to BO) - but I have notice the whole executive power thing. It seems to be a disease of sorts - rampant - and it seems that one can often not view it in themselves. I read an article recently about his generation being the 'narcissitic' generation - and perhaps this feeds in, I don't know. I'm just happy there is energy - but I don't like what the status quo has been all about.