15 Apr Due Process?
I in no way believe that Deb exhibits “virtually pathological level of tribal loyalty and monumental intellectual dishonesty,” and I doubt that Glenn does either. That said, I am not sure that Deb’s (clearly initial) thoughts on the Obama administration avoids Glenn’s basic critique — that Obama supporters justify his increasingly Bush-like policies by de-emphasizing substance in favor of personality and process, focusing on the superiority of Obama’s coterie of advisors and his decision-making process instead of on the policies that the process ultimately generates. I freely concede the personality and process argument, but I draw the opposite conclusion: that Obama’s superior advisers and decision-making process means that it is even more indefensible that he has abandoned a number of his most important campaign promises concerning national security. I never expected Bush’s advisers — the Yoos and Addingtons — to support sensible limits on the power of the Executive. But I certainly expected — and continue to expect — Obama’s advisers to do so. And yet, time and again, Obama mimics the worst excesses of the Bush administration.
One example: Obama’s appalling position on whether a federal court has the authority to order the Executive to disclose classified information that it would rather keep secret. That position directly contradicts the idea that Obama has “categorically repudiated” the Bush administration’s radical “constitutional theory of the unlimited, inherent authority of the executive.” Here’s Glenn:
The brief filed by Obama on Friday afternoon (.pdf) has to be read to believed. It is literally arguing that no court has the power to order that classified documents be used in a judicial proceeding; instead, it is the President — and the President alone — who possesses that decision-making power under Article II, and no court order is binding on the President to the extent it purports to direct that such information be made available for use in a judicial proceeding. From page 5 of the Obama Brief, filed after its loss on Friday:
That’s about as clear as it gets. There is only one branch with the power to decide if these documents can be used in this Article III court proceeding: The Executive. What the President decides is final. His decision is unreviewable. It’s beyond the reach of the law. No court has the authority to second-guess it or to direct the President to comply with a disclosure order.
With respect, I am also not convinced by Deb’s defense of the Obama administration’s decision to appeal Judge Bates’ extension of habeas rights to three detainees at Bagram. As she characterizes it, that decision simply reflects the administration’s determination to give its inter-agency task force the time it needs to complete its work. Even putting aside the gross unfairness of asking detainees who spent up to six years in captivity without any kind of judicial process to wait an additional six months — which Deb acknowledges — I don’t think the administration’s appeal is “plainly designed to leave options open, and to try to keep more decisions from being forced before they’ve been made.” Read the brief that Deb cites and judge for yourself: is it the work of a reluctant Justice Department trying to complete its review process, or of a zealous Justice Department trying desperately to avoid judicial scrutiny of US detention practices in Afghanistan? It seems to me that the latter is true — page after page, the brief attacks Judge Bates’ careful and limited extension of Boumediene to Bagram: the US does not have complete control over Bagram (p. 6); Bagram does not have a “unique history” that makes it equivalent to an unincorporated territory of the US (p. 7); providing the Bagram detainees with habeas would undermine the military’s detention regime in Afghanistan (p. 8); providing the Bagram detainees with habeas would divert the military from its efforts to combat terrorism (I’m not making that up — p. 9) and force it to alter its combat operations (I’m not making that up, either — p. 10).
Deb? Your thoughts?