Due Process

by Deborah Pearlstein

“That 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.”

So writes Glenn Greenwald on his Salon blog this week entitled “An emerging progressive consensus on Obama’s executive power and secrecy abuses.” I take it Glenn’s blog is much read by the “legal left” (thanks Politico), and recently much embraced by the late-night left, Olbermann and Maddow.

Indeed, Glenn cites Kevin’s writing here at Opinio Juris as evidence in support of his position.

“International law professor Kevin Jon Heller of Opinio Juris said 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.”

For the record, may I please be excused from the putative “progressive consensus” on this one? Here are some reasons why I ask.

First, I left my corporate law firm back in 2003 to help the then-Lawyers Committee for Human Rights (now Human Rights First) start up a new program on law and security issues in part because I was appalled by “the very legal theories” of the Bush/Cheney regime. Among the theories I put at the top of that list: (1) a constitutional theory of the unlimited, inherent authority of the executive; (2) a political theory of the law as an obstacle to power, rather than the best-we-have and in all events mandatory-in-our-country tool to ensure the appropriate exercise of power; and (3) a policy theory that viewed process (due or otherwise) as a meaningless irritant – whether the process was an internal administrative mechanism for, say, setting up a system of military trials, or, an administrative and/or judicial process for figuring out whether we have the right people in custody.

By my count, the Obama administration has categorically repudiated theory #1 (in, for example, its Guantanamo habeas briefs), and has effectively repudiated theory #2 (in, for example, appointing the likes of Anne-Marie Slaughter and Harold Koh to the State Department). So what about theory #3 – how about a little process, for, say, the Bagram detainees? That brings me to…

Second, the Administration announced on Day 2 that it was creating a new inter-agency task force and was giving it 6 months to figure out how to handle non-Gitmo detainee issues going forward. I vigorously supported – and support – the creation of that task force. Its conceit was one I think is amply justified by the legal, political and policy complexities of its topic – namely, that the Administration was not yet sure and had not yet decided on the best course forward on detainees. (Yes – the Bagram habeas question is complex. Anyone who thinks it’s not hasn’t paid attention to the detainees’ own litigating strategy – which is to start out with a minority class of detainees there whose case for habeas is far more plausible than for many others at Bagram under current law.) So the Administration was going to get a lot of interested parties around the table, hear a range of views, study the issue, and come to a conclusion that had not been predetermined. Struck me as a rather dramatically un-Bush-like approach.

It has also struck me that the only way for the Administration to take its own internal process seriously is to preserve as full a range of options for the task force to choose from as it can – even as it is forced in interim court filings to take positions on questions before it has complete (or any) answers. I hardly agree with everything the Administration has said in its recent litigating positions on detainee matters (written, as best I can tell, by career attorneys scrambling in the DOJ civil division). And I can scarcely imagine the human toll taken on those individuals who may have been detained wrongly and have waited far too long already for some resolution of their case. But these briefs are plainly designed to leave options open, and to try to keep more decisions from being forced before they’ve been made. (The latest Bagram brief, for instance, asks the trial court to certify the case for interlocutory appeal and in that context argues that interlocutory review is appropriate because, pursuant to the statutory standard, there exists “a controlling question of law as to which there is substantial ground for difference of opinion” – namely, whether Boumediene should be read to extend habeas rights to Afghanistan.) Seems to me that most other litigating approaches would render the Administration’s own task force process less than what it was sold to be.

Could be this all means I suffer from a “virtually pathological level of tribal loyalty and monumental intellectual dishonesty” in Glenn Greenwald’s eyes. But my read is that they’ve got some months yet before their process comes due.


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