Legal left cools toward Obama
By: Josh Gerstein
April 13, 2009
It’s not just Paul Krugman anymore.
A growing chorus on the legal left is cooling toward President Barack Obama as a result of recent actions by the Justice Department vigorously defending the Bush administration in what it termed the war on terror.
“Obama Position on Illegal Spying: Worse Than Bush,” a large graphic declared over the weekend on the home page of a respected group advocating freedom on the Internet, Electronic Frontier Foundation.
Obama has been pilloried by a liberal TV icon who was one of President George W. Bush’s most vociferous critics, MSNBC’s Keith Olbermann.
“During his run for the presidency, Barack Obama, who taught constitutional law at the University of Chicago, argued strongly against the Bush administration’s use of executive authority, including its self-justification, its rationalization of the warrantless wiretapping of American citizens,” Olbermann said on his show last week. “That was then. This is now. ... Welcome to change you cannot believe in — or sue over.”
Obama is also under withering attack from an attorney who was one of the most widely read critics of Bush’s legal strategy in the war on terror, Glenn Greenwald. He recently blasted Obama administration moves as “extremist” and “bizarre.”
“Reading this brief from the Obama DOJ is so striking — and more than a little depressing — given how indistinguishable it is from everything that poured out of the Bush DOJ regarding secrecy powers in order to evade all legal accountability,” he wrote on Salon last week, before calling his fellow civil libertarians to rise up. “It is simply inexcusable for those who spent the last several years screaming when the Bush administration did exactly this to remain silent now or, worse, to search for excuses to justify this behavior,” he said.
The new wave of criticism was triggered by two actions in recent weeks by the Justice Department.
First, earlier this month, the department presented an expansive series of arguments urging a federal court in San Francisco to throw out a lawsuit over warrantless surveillance first filed against Bush. The department’s brief not only asserted the state secrets privilege, which has long infuriated civil libertarians, but also made a sweeping assertion that Americans have no rights to challenge surveillance that violates the law unless the information is improperly released.
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Then, on Friday, the department issued similarly broad arguments against a court ruling giving legal rights to some detainees held by the U.S. military at Bagram Air Base in Afghanistan. The government motion said the decision could aid “enemies of the United States” by allowing them to use “the U.S. court system as a tactical weapon.” The filing led to a New York Times editorial Monday sharply criticizing Obama for positioning Bagram as “the next Guantanamo.”
Obama administration officials insist that critics are jumping the gun. A Justice Department official said some of the recent arguments are essentially intended to buy time for a review Obama has ordered of procedures and policies regarding detainees.
The official, who asked not to be identified, said Obama deserves credit for announcing the closure of Guantanamo and banning the use of torture. The aide also pointed to Attorney General Eric Holder’s statement to CBS News last week that he soon expects to reverse the Bush administration assertion of the state secrets privilege in at least one case.
But liberal attorneys, who set up groups such as “Habeas Lawyers for Obama” during the campaign, complain that Obama is walking away from statements he made as a senator and presidential candidate rebuking the Bush administration for putting prisoners beyond the reach of the law.
“Obama has said no place should be out of reach of the law. Now, he’s done precisely that,” said Jonathan Turley, a law professor at George Washington University. “You have this administration routinely stating principles as a precursor to violating those very same principles.”
Several organizers of Habeas Lawyers for Obama declined to be quoted or interviewed by POLITICO.
However, one who spoke but asked not to be named because he regularly deals with top Obama officials, said he understands the growing skepticism. “I can understand people’s concern and frustration and I am concerned myself,” the lawyer said. “The tone of the Bagram filing was more strident than I certainly would have hoped.”
The Obama supporter said he is confident that Obama’s senior legal team at the Justice Department and the White House will translate in time to vastly different policies.
“There just a world of difference between the people who are handling those legal areas and those who were before,” the attorney said, though he added that he thought the Obama legal team was “absolutely overwhelmed” by the amount of work it faces.
Still, critics such as Greenwald insist that the recent Obama administration acts on secrets and Bagram need to be publicly denounced.
“It would require a virtually pathological level of tribal loyalty and monumental intellectual dishonesty not to object just as vehemently as we watch the Obama DOJ repeatedly invoke these very same theories and, in this instance, actually invent a new one that not even the Bush administration espoused,” he wrote.
“When Bush asserted the power to abduct people and put them in prison for life with no charges, he was a Constitution-hating tyrant. When Obama does it, he’s being really careful and cautious and doing it to protect us for really good reasons even if we can’t know what they are and he won’t tell us,” Greenwald wrote, mockingly summarizing the arguments of Obama defenders.
Holder has set a speech Wednesday night at West Point, which would be a logical forum to lay out the administration's views in more detail. Aides would not discuss specifics of his speech but said it would address "rule of law" issues.
Still, the anger could intensify Thursday when more Bush administration memos are expected to be released in connection with an ACLU lawsuit. An earlier release of similar memos put the focus on perceived transgressions of the Bush administration. Now, activists may hone in instead on how the Obama White House is following in Bush’s legal footsteps.
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