Monday
Mar092009
War on Terror Watch: Obama Keeps a Grip on Bush's Executive Powers
Monday, March 9, 2009 at 6:28
Related Post: War on Terror - Obama Keeps a Grip on Bush Executive Power (Part 2)
Here's a case that, because of its complexity, won't make the front page in the War on Terror.
Ali Saleh Kahlah al-Marri has been held in a US prison for six years. He is suspected of being an Al Qa'eda terrorist, but until last week no charges were brought. Instead the Bush Administration, in an extension of their "unlawful combatant" construction for Guantanamo Bay, had argued that al-Marri was an imminent danger without allowing a criminal trial.
Last week the Obama Administration finally brought criminal charges (two counts of support for terrorism) against al-Marri, remedying the immediate issue of his status. That, however, left the question: was the Bush Administration justified in suspending habeas corpus, the fundamential legal principle that a person cannot be held without formal arrest and arraignment. As of March 2009, the legal precedent was Yes: the U.S. Court of Appeals had ruled last year that the President had legal authority to imprison al-Marri indefinitely without charge.
Obama and advisors could have put money where their mouth is in their commitment to match security and values, supporting the effort to overturn that precedent. Instead, on Friday the Justice Department asked the US Supreme Court to rule the al-Marri case irrelevant, given the filing of criminal charges. The Court denied the request, vacating the Court of Appeals decision. At the same time, it balked at hearing the case to give a definitive ruling on Bush's grab of power.
This is now becoming part of a pattern. The new Administration will announce specific decisions as a change of course from Bush: there is the principle of closing Guantanamo Bay within 12 months and the principle against torture. It has released specific documents showing how and why Bush advisors twisted the law to rationalise an unlimited extension of Executive power.
However, when it comes to repudiating in law, rather than words, that sweeping grab of Presidential authority, the Obama Administration is saying to the courts, "Not your business." Not the courts' business to scrutinise the Bush claim for warrantless surveillance of anyone within the US, not the courts' business to consider the rendition of detainees to other countries, not the courts' business to consider the indefinite imprisonment of a person on US territory.
Last year, we wrote that this would be a fundamental challenge for Obama: could a President willingly surrender the power, which might or might not be used but was always available, claimed by a predecessor? If the answer is No, it appears this will have to come from the courts, not the 44th President of the United States.
Here's a case that, because of its complexity, won't make the front page in the War on Terror.Ali Saleh Kahlah al-Marri has been held in a US prison for six years. He is suspected of being an Al Qa'eda terrorist, but until last week no charges were brought. Instead the Bush Administration, in an extension of their "unlawful combatant" construction for Guantanamo Bay, had argued that al-Marri was an imminent danger without allowing a criminal trial.
Last week the Obama Administration finally brought criminal charges (two counts of support for terrorism) against al-Marri, remedying the immediate issue of his status. That, however, left the question: was the Bush Administration justified in suspending habeas corpus, the fundamential legal principle that a person cannot be held without formal arrest and arraignment. As of March 2009, the legal precedent was Yes: the U.S. Court of Appeals had ruled last year that the President had legal authority to imprison al-Marri indefinitely without charge.
Obama and advisors could have put money where their mouth is in their commitment to match security and values, supporting the effort to overturn that precedent. Instead, on Friday the Justice Department asked the US Supreme Court to rule the al-Marri case irrelevant, given the filing of criminal charges. The Court denied the request, vacating the Court of Appeals decision. At the same time, it balked at hearing the case to give a definitive ruling on Bush's grab of power.
This is now becoming part of a pattern. The new Administration will announce specific decisions as a change of course from Bush: there is the principle of closing Guantanamo Bay within 12 months and the principle against torture. It has released specific documents showing how and why Bush advisors twisted the law to rationalise an unlimited extension of Executive power.
However, when it comes to repudiating in law, rather than words, that sweeping grab of Presidential authority, the Obama Administration is saying to the courts, "Not your business." Not the courts' business to scrutinise the Bush claim for warrantless surveillance of anyone within the US, not the courts' business to consider the rendition of detainees to other countries, not the courts' business to consider the indefinite imprisonment of a person on US territory.
Last year, we wrote that this would be a fundamental challenge for Obama: could a President willingly surrender the power, which might or might not be used but was always available, claimed by a predecessor? If the answer is No, it appears this will have to come from the courts, not the 44th President of the United States.
Reader Comments (2)
I heard an interesting theory on Twitter, that is that Obama only pursued the Bush Administration power grabs because he knew he would LOSE, thus giving up the powers.
I don't know if that's true, or even if Obama is that kind of Machiavellian operator, but it is something to consider...
That would fit in with Charles Gannon's thesis of Obama-jitsu, which he has mentioned in comments on EA....