Reply #361: "assertions of the state secrets privilege" is policy . . .

[defendandprotect]

Posting this for the record, mainly ---

UPDATE: In addition to Roth's TPM article, also very worth reading is this analysis from The Washington Post's Dan Froomkin, who says there "there is something utterly un-American" about Obama's position. As Roth concludes: "That looks like a pretty broad consensus in opposition to the Obama administration's position. And it's the opposite of change we can believe in."


and a lot of interesting material in both of these links . . .

Glenn Greenwald
Thursday April 9, 2009 19:32 EDT
TPM: "Obama Mimics Bush on State Secrets"

Not having Greenwald's training in constitutional law (and perhaps lacking Olbermann's all-conquering self-confidence), we wanted to get a sense from a few independent experts as to how to assess the administration's position on the case. 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.

This controversy is clearly growing, as well it should. These radical theories were not ancillary to the liberal critique of Bush/Cheney lawlessness but central to it. Last night on CBS News, Katie Couric repeatedly asked Eric Holder about this issue, and -- as The Washington Independent's Daphne Evitar noted --

Holder was forced to say that he has reviewed the cases where the Obama administration invoked "state secrets" and agreed with virtually everything the Bush administration did in those cases with regard to that doctrine, making clear (as Evitar put it) "that the Obama administration is unlikely to depart dramatically from the Bush administration’s position on the use of the state secrets privilege."

The Bush administration's use of the "state secrets" privilege was the linchpin of its efforts to shield its criminality from judicial review and -- as Democrats, progressives and other Bush critics repeatedly argued -- was one of the principal prongs of its lawlessness and radicalism. Yet here is the Obama administration doing exactly the same thing and now admitting that they intend to continue to do so. Relatedly, Jim White digs up some election year Obama quotes to underscore what a betrayal of Obama's constant commitments these actions are.

http://www.salon.com/opinion/greenwald/2009/04/09/tpm/index.html


AND . . .
Glenn Greenwald
Saturday April 11, 2009 08:41 EDT
Obama and habeas corpus -- then and now

“Though he has made many promises regarding the need for our country to rejoin the world community of nations, by filing this appeal, President Obama has taken on the defense of one of the Bush administration’s unlawful policies founded on nothing more than the idea that might makes right,” she said.

Back in February, the Obama administration shocked many civil libertarians by filing a brief in federal court that, in two sentences, declared that it embraced the most extremist Bush theory on this issue -- the Obama DOJ argued, as The New York Times's Charlie Savage put it, "that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team." Remember: these are not prisoners captured in Afghanistan on a battlefield. Many of them have nothing to do with Afghanistan and were captured far, far away from that country -- abducted from their homes and workplaces -- and then flown to Bagram to be imprisoned. Indeed, the Bagram detainees in the particular case in which the Obama DOJ filed its brief were Yemenis and Tunisians captured outside of Afghanistan (in Thailand or the UAE, for instance) and then flown to Bagram and locked away there as much as six years without any charges. That is what the Obama DOJ defended, and they argued that those individuals can be imprisoned indefinitely with no rights of any kind -- as long as they are kept in Bagram rather than Guantanamo.

Last month, a federal judge emphatically rejected the Bush/Obama position and held that the rationale of Boudemiene applies every bit as much to Bagram as it does to Guantanamo. Notably, the district judge who so ruled -- John Bates -- is an appointee of George W. Bush, a former Whitewater prosecutor, and a very pro-executive-power judge. In his decision (.pdf), Judge Bates made clear how identical are the constitutional rights of detainees flown to Guantanamo and Bagram and underscored how dangerous is the Bush/Obama claim that the President has the right to abduct people from around the world and imprison them at Bagram with no due process of any kind

more . .
http://www.salon.com/opinion/greenwald/2009/04/11/bagram/index.html