Obama and The (Quasi?)Imperial Presidency

The always worth reading Charlie Savage had a really important piece in the NyTimes four days ago which in the midst of all the financial meltdown news slipped through the cracks.

Savage writes:

The Obama administration has told a federal judge 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.

Obama got some pushback from ertswhile progressive allies, arguing that this decision was indeed very Bush-like.

To me, what this signals is further proof that A)Obama was telegraphing exactly what he would do as president during the campaign and B)a lot of folks weren’t listening closely enough.

What Obama made clear was that he rejected George Bush’s frame of the Global War on Terror (emphasis on Global) but he did accept a War on Terrorism frame.  Or perhaps better War on Terrorists.  A war specifically on al-Qaeda in Afghanistan/Pakistan and its allies The Taliban(s).

The actions Obama has taken to date are logical corollaries of that basic premise.

Re: Ending The Global War on Terror

1)Shutting down Gitmo, supporting the SCOTUS ruling that Gitmo prisoners have habeus corpus rights.

2)Ending the War in Iraq.
–Bush’s Fight them in a place of our choosing rather, except that the “them” wasn’t the same “them” as who actually planned and executed the 9/11 attacks.

3)Ending Torture and Extraordinary Rendition. (Emphasis on Extra-ordinary–potential keeping of “non-extraordinary rendition”).
–This practice also was largely a factor of the global framework of Bush’s presidency.

Re: Undertaking a War against al-Qaeda/Taliban

1)Sending 17,000 more troops to Afghanistan

2)Expanding missile strikes into Pakistan

3)This legal decision (for the time being at the least) concerning detainees at Bagram in Afghanistan.

Savage notes:

The Supreme Court rejected the Bush administration’s legal view for prisoners held at Guantánamo in landmark rulings in 2004 and 2006. But those rulings were based on the idea that the prison was on United States soil for constitutional purposes, based on the unique legal circumstances and history of the naval base.

So on one level this decision by the Obama Justice Dept. is seen as supporting the Bush-Cheney Regime which argued that prisoners were not American citizens and therefore not open to US courts.  But Obama has done so only insofar as it accords with his Af-Pak view of the war as opposed to Bush’s Global War.  [I’m not necessarily defending this argument, only saying there is a difference and I can imagine a legitimate argument being made for the Obama decision]. On the other hand, Bush & Crew also argued that they were not uniformed soldiers in an army, hence outside the bounds of the Geneva Conventions–a position Obama seems quite opposed to.  Arguing that prisoners at a prison in Afghanistan should not have access to the US court system is not the same as saying they do not rightfully have Geneva Convention rights (e.g. no torture).

i.e. The Third Article of the Geneva Convention states:

d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Such a regularly constituted court affording guarantees recognized by civilized peoples need not be the US criminal court system.  I think the US criminal court system passes that particular bar, but I can certainly (and easily) imagine a military court (or perhaps the International Court) that could just as well qualify under those criteria.

For all the howls that Obama is now a Bush-lite, the real issue is that any president Bush, Obama, Republican or Democrat to come, is making these decisions, when in reality they are the proper province of the Legislative Branch.  This point was the central and I think substantially correct one of Benjamin Wittes’ recent book Law and the Long War.  While I’m not sure I agree with all of Wittes’ later recommendations about how exactly he would like to see the legal frame enacted by Congress, he is 100% correct that the legal questions surrounding this war are really the job of Congress.  What we have had to date concerning is that the President makes some decisions and then at certain points is rebuffed by the Supreme Court (e.g. Boumediene case).  But the Supreme Court can only say what The Executive has done is wrong and not really promote what should be done instead.  Which is exactly where The Legislative Branch comes in.

Otherwise the legal issues will, as we have seen with Bush and are seeing with Obama, be subordinated to The Executive’s Foreign Policy Paradigm.  Rather The Congress should bind any and all Executives to a legal framework with which The Executive will have to work relative to its own particular foreign policy outlooks.