War on Terror: Obama Keeps a Grip on Bush Executive Power (Part 2)

Related Post: War on Terror Watch - Obama Keeps a Grip on Bush’s Executive Powers

Within The New York Times report on its Friday interview with President Obama, obscured by the article's misleading focus on Afghanistan, is a revealing insight into the Obama Administration's approach on the "War on Terror": talk the talk, but no walking the walk when it comes to giving back legal rights.

Obama's answer to the Times reporters was definitive, "We [must] ultimately provide anybody that we’re detaining an opportunity through habeas corpus. to answer to charges."

In fact, it was too definitive. Before the Times published the article on the interview, "Aides...said Mr. Obama did not mean to suggest that everybody held by American forces would be granted habeas corpus or the right to challenge their detention."



Oh.

Apparently, the President was referring "only to a Supreme Court decision last year finding that prisoners held at Guantánamo Bay, Cuba, have the right to go to federal court to challenge their continued detention". He was not referring to the US prison at Camp Bagram, Afghanistan, where there are more than 600 detainees and where the number is expected to double in the near-future.

And, as we noted earlier this morning, he must not be referring to the indefinite detention of a US citizen on US soil, since his Justice Department is refusing to vacate the principle that habeas corpus can be suspended by the President.

Nope, when the President refers to restoring the legal rights of "anybody", what he must mean is "anybody whom the Supreme Court, after years of hearings and attempted blocking and evasion by the Justice Department, rules has legal rights".

Perhaps the unnamed, unseen "aides" can call us to ensure there are no more corrections to be made.

War on Terror Watch: Obama Keeps a Grip on Bush's Executive Powers

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.