Obama’s defense of Bush policies

Strange to see the vigor with which Obama’s DoJ is defending Bush policies. Daphne Eviatar in the Washington Independent:

Well, he doesn’t get to go free, but Ali Saleh Kahlah al-Marri — the last remaining “enemy combatant” who was picked up and held for the past six years without charge on U.S. soil — will finally have the privilege of being transferred to a real federal prison (from a South Carolina Navy brig) and charged in an actual U.S. federal court.

While that doesn’t mean that al-Marri will get out anytime soon, it does at least give him an opportunity to see and contest the charges against him. He will reportedly be charged with providing material support to Al Qaeda.

Today, President Obama issued an official presidential memorandum sealing the deal:

[I]t is in the interest of the United States that Ali Saleh Kahlah al-Marri be released from detention by the Secretary of Defense and transferred to the control of the Attorney General for the purpose of criminal proceedings against him.

One reason it’s in the interest of the United States is because it means the government can now ask the Supreme Court to dismiss the appeal pending in his habeas corpus case, as it’s said it will do. The appeal is a direct challenge to the government’s authority to hold a lawful U.S. resident indefinitely and without charge on U.S. soil.  Al-Marri’s lawyers at the American Civil Liberties Union have said they want to pursue the appeal to the Supreme Court, to obtain a ruling on the issue and “make sure that no American citizen or lawful resident will ever again be imprisoned without charge or trial.” However, it is difficult to imagine that the Supreme Court would choose to address the issue in al-Marri’s case, now that it no longer has to.

In as similar case, involving Jose Padilla, a US citizen held as an enemy combatant without charge by the Bush administration, the Supreme Court dismissed his appeal as soon as he was transferred to civilian custody for a criminal trial.

As a general matter, the Supreme Court will not decide a constitutional issue such as this one unless it is necessary to resolve a pending case.  The transfer of al-Marri from Defense Department to Justice Department custody would seem to render the issue moot. However, SCOTUSblog noted yesterday that al-Marri’s lawyers could argue that because the government could change its mind in the future and transfer al-Marri back to military custody, the Supreme Court should go ahead and decide the case.

As I’ve written before, that seems unlikely to me, but here’s SCOTUSblog’s learned analysis of how that scenario might play out.

And Glenn Greenwald is similarly wondering:

he Obama DOJ’s embrace of Bush’s state secrets privilege in the Jeppesen (torture/rendition) case generated substantial outrage, and rightly so.  But it’s now safe to say that far worse is the Obama DOJ’s conduct in the Al-Haramain case — the only remaining case against the Government with any real chance of resulting in a judicial ruling on the legality of Bush’s NSA warrantless eavesdropping program.  Here’s the first paragraph from the Wired report on Friday’s appellate ruling, which refused the Obama DOJ’s request to block a federal court from considering key evidence when deciding whether Bush broke the law in how he spied on Americans:

A federal appeals court dealt a blow to the Obama administration Friday when it refused to block a judge from admitting top secret evidence in a lawsuit weighing whether a U.S. president may bypass Congress, as President George W. Bush did, and establish a program of eavesdropping on Americans without warrants.

And here are the two paragraphs from the AP report:

The Obama administration has lost its argument that a potential threat to national security should stop a lawsuit challenging the government’s warrantless wiretapping program. . . .

The Obama administration, like the Bush administration before it, claimed national security would be compromised if a lawsuit brought by the Oregon chapter of the charity, Al-Haramain Islamic Foundation, was allowed to proceed.

Let’s just pause for a moment to consider how remarkable those statements are.  One of the worst abuses of the Bush administration was its endless reliance on vast claims of secrecy to ensure that no court could ever rule on the legality of the President’s actions.  They would insist that "secrecy" prevented a judicial ruling even when the President’s actions were (a) already publicly disclosed in detail and (b) were blatantly criminal — as is the case with the NSA warrantless eavesdropping program, which The New York Times described on its front page more than three years ago and which a federal statute explicitly criminalized.  Secrecy claims of that sort — to block judicial review of the President’s conduct, i.e., to immunize the President from the rule of law — provoked endless howls of outrage from Bush critics.

Yet now, the Obama administration is doing exactly the same thing.  Hence, it is accurately deemed "a blow to the Obama administration" that a court might rule on whether George Bush broke the law when eavesdropping on Americans without warrants.  Why is the Obama administration so vested in preventing that from happening, and — worse still — in ensuring that Presidents continue to have the power to invoke extremely broad secrecy claims in order to block courts from ruling on allegations that a President has violated the law?

Obama defenders take note: …

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