Thursday, May 21, 2009

President Obama on National Security, the Rule of Law, and Tranparency in Government

President Obama's speech today outlining his plans for Guantanamo Bay and detainees there reflects the sharp break that the Obama administration made from the Bush administration on inherent executive authority, the rule of law, and transparency in the conflict against terrorists.  Some highlights:

On Torture:  The President "categorically reject[ed] the assertion that [so-called enhanced interrogation techniques are] the most effective means of interrogation," and "[w]hat's more, they undermine the rule of law."  "In short, they did not advance our war and counterrorism efforts--they undermined them, and that is why I ended them once and for all."

On Guantanamo Bay:  The President, after comparing the few benefits (merely "three convictions in over seven years") to the many drawbacks (including the loss of moral authority, our allies' objections, and its recruitment value for terrorists), concluded: "By any measure, the costs of keeping it open far exceed the complications involved in closing it.  That's why I argued that it should be closed throughout my campaign, and that is why I ordered it closed within one year."

On Trial of Detainees:  The President said that "whenever feasible, we will try those who have violated American criminal laws in federal courts . . . ."  Detainees who violated laws of war will be tried in military commissions with new rules that bring them "in line with the rule of law."  Those ordered released by the courts--and President Obama specifically cited the Uighurs--must be released, because the President, too, is "bound by the law."  Yet others will be transferred to other countries.  And finally for those who pose a continuing danger, but who cannot be prosecuted, the administration will apparently work out a plan with the aid of Congress and within the rulings of the courts:  "In our constitutional system, prolonged detention should not be the decision of one man.  If and when we detrmine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight."

On Transparency in Government:  The President said that there is a delicate balance between security concerns and transparency, but "[w]henever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions--by Congress or by the courts."  Specifically, the President committed to overhauling his administration's use of the State Secrets Privilege; but he also reiterated his opposition to any independent commission to investigate Bush administration excesses, saying that "our existing democratic institutions are strong enough to deliver accountability."

In these areas and throughout the speech, the President references "the rule of law," Congressional and judicial oversight, and transparency and accountability--seldom-heard language from the Bush administration in matters of national security.  Clearly the Obama administration represents something different.

Or does it?

Recall that the Obama administration already adopted positions of the Bush administration in two closely watched and key constitutional areas--the definition of detainable individuals, and the State Secrets Privilege.  As to the former, the administration proposed a definition in the habeas cases in the D.C. District that was all but the same as Bush administration definition of "enemy combatant."  (Two judges now have ruled on the proposed definition.  One adopted it in its entirety; the other dropped a component of it that wasn't supported by law.)  And as to the latter, the administration asserted precisely the same sweeping State Secrets Privilege in Mohamed, the extraordinary rendition case before the Ninth Circuit.  (The Ninth Circuit ruled against the administration.)  (In another case, the administration sought to appeal a lower court's order extending habeas to Bagram Airfield in Afghanistan.)

And even in today's speech, the President supported some of his positions primarily on the basis of policy, and only secondarily on the basis of constitutionality.  The President's position on torture is a good example: He banned it (primarily) because it "did not advance our war and counterterrorism efforts," and (only secondarily--"what's more") because it "undermine[s] the rule of law."

In the speech today--as in prior speeches, actions, and orders--President Obama articulated a markedly different balance of powers than we saw from the Bush administration.  There are no claims of inherent executive authority, absolute secrecy with regard to national security concerns, Presidential authority without regard to U.S. or international law, or even strained interpretations of U.S. and international law.  And the speech itself reflected exactly the kind of transparency that the President praised in the speech.

But if key policies don't change, does any of this matter?  Perhaps, but we can't know yet.  Some policies, after all, may change: the President committed to try certain detainees in regular Article III courts, for example, and he committed to releasing detainees already ordered to be released.  Moreover, other hold-over policies might turn out to be well justified; for example, the administration's reassertion of the sweeping State Secrets Privilege in Mohamed might turn out to meet a much higher threshold--a Totten threshold.

But we don't know yet how many detainees will actually be transferred to Article III courts (and whether the administration will be able to overcome objections to such transfers), whether the administration will actually be able to find a home for the Uighurs, and whether the administration was validly protecting national security by asserting a sweeping State Secrets Privilege in Mohamed.  Until we know, it's difficult to assess the benefits of the administration's new positions on separation of powers and transparency.

In the meantime, President Obama's transparency means at least that we can hold him (and others) accountable:  We at least know who to blame for what.  But as the President suggested in his speech today, voters were able to do that in the last election.  And they did it with a much less transparent executive.

SDS

http://lawprofessors.typepad.com/conlaw/2009/05/president-obama-on-national-security-the-rule-of-law-and-tranparency-in-government.html

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