Pushing Back on the Executive Branch

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On most issues I am firmly in the liberal camp, but have recently voiced disagreements with some on the left I usually agree with. The responses have been somewhat surprising. There are issues concerning the presidency and the executive branch in general, and Barack Obama should not be above criticism if he contributes to them. Defenders have said he is just getting started so it is too early to make even preliminary evaluations, that relatively minor retreats from Bush administration policies are sufficient concessions to civil libertarians, that the economic mess crowds out consideration of other issues, or that we ought to give him the benefit of the doubt as he works out his stance towards the Constitution in the expectation he will eventually end up in the right place.

I understand he has been in office for just over a month but his decisions on detainees at Bagram and the State Secrets privilege should not be ignored. They are noteworthy in and of themselves; moreover, early decisions give us the best indication of what to expect. If the first ones are hostile towards human rights and transparency what reason is there to expect better? Does it make any sense to say that he has been so busy getting the stimulus bill together that he has not had time to think about how we treat those who have been warehoused for years in extrajudicial limbo? When would that time arrive? What reason is there to expect additional reflection would change his first thoughts? While the broad outlines so far sketched out (such as closing Guantánamo in a year) have been good the early details have not.

Even rolling back Bush’s power grabs all the way to January 20th, 2001 would not be sufficient to restore our traditional honoring of civil liberties and human rights. The environment that Bush inherited was the foundation from which his abuses were launched. Removing them would just leave the platform on which the next Bush (God help us) could rebuild. While you could argue that the Clinton administration’s use of rendition was generally valid – though I do not agree – there can be no question that it operated outside of judicial or Congressional oversight. That in turn forces those defending it to use qualified language, such as saying the Clinton administration "generally used the practice to allow suspects to face criminal prosecutions, rather than solely to undergo interrogation". The absence of a formalized extradition treaty creates a loophole big enough to rationalize using it for a much wider variety of purposes. You "generally use" it one way, we’ll generally use it another.

If we want to reduce the chance of history repeating itself we should look at our assumptions prior to Bush. We may have had a certain amount of complacency, naïveté or indifference to the precedents that would later be used to justify activities that outraged us. What we know now should make us willing to question items that have long been considered as settled, and two recent developments are greatly encouraging examples of that. In the first Steven Aftergood reports (via) that Judge T.S. Ellis, III has overruled an executive branch classification claim in an ongoing lawsuit. Judges have typically been very deferential towards government classification, allowing it to do so largely unchallenged. Ellis has ruled that not only will he review the documents but so will the jury, and it will decide whether they remain classified. It is an almost astonishing display of good sense: The overwhelming bulk of evidence suggests that secrecy is invoked to quash embarrassing, unethical or criminal behavior. Finding a way for the courts to check these claims instead of accepting them at face value seems several decades overdue.

The second is the announcement by senators Sheldon Whitehouse and Patrick Leahy that a commission on torture during the Bush years may be formed. Now, I have been sorely disappointed by Leahy in the past and thought his unwillingness to play Constitutional Hardball with the Bush administration made him look impotent and clownish. Also, Congressional committees seem to take forever and produce reports instead of action. Those reservations aside it seems possible the Senate will proceed regardless of the White House’s position. Whitehouse said "When push comes to shove, we are the legislative branch of government. We have oversight responsibilities. And we don’t need the executive branch’s approval to look into these things just as a constitutional matter." If that really is his and the Senate’s position it would mark a welcome return of a kind of principled but adversarial check on the president that has been missing much longer than eight years. Here’s hoping the attitude is contagious.

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