The Obama Administration has already taken several laudable steps to separate itself from illegal policies and practices of its predecessor, and I applaud them for it. I’m glad Attorney General Holder released some of the shocking legal memoranda prepared by the Bush Office of Legal Counsel, which authorized blatantly unlawful and unconstitutional acts by the executive branch. But I choked a bit on Mr. Holder’s statement that “Americans deserve a government that operates with transparency and openness.” I agree wholeheartedly, but I find this sentiment glaringly at odds with some of the Justice Department’s own recent actions.
In several pending court cases that began before President Obama took office, summarized by blogger Glenn Greenwald, among others, the Obama Justice Department has recently taken positions that appear to embrace the Bush Justice Department’s expansive view of Presidential power. For example, in a lawsuit brought against the Jeppesen company, a Boeing subsidiary, by five alleged victims of “extraordinary rendition,” the Obama administration invoked the “state secrets” doctrine to keep certain documents out of the hands of the plaintiffs, with the apparent aim of depriving them of their day in court. In this and other recent cases where Eric Holder’s Justice Department has taken similar positions, no administration official has bothered to offer any explanation for doing so. So much for transparency and openness! Yet these actions cry out for an explanation because, on their face, they are so conspicuously at odds with President Obama’s and the Attorney General’s own declared values and promises.
It’s beginning to appear that what we have is a President who disagrees with many of the specific policies and practices of his predecessor but who reserves the right to adopt them himself — or other, possibly equally illegal practices — if he feels the need in the future. This should serve as another sad reminder of the need to ensure that honoring our obligations under domestic and international law is not left up to the whim of whoever happens to be our President at any given time. A good first step would be a thorough investigation by an impartial panel of experts into all US government counterterrorism practices since 9/11, in a manner that enables criminal prosecutions to be undertaken where warranted. Only by demonstrating that lawlessness has serious consequences can we ensure that whether we have a government that obeys the law does not remain a matter of Presidential preference.