Obama gets the Charlie Savage treatment, and it isn't pretty:
In little-noticed confirmation testimony recently, Obama nominees endorsed continuing the C.I.A.'s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone.
The administration has also embraced the Bush legal team's arguments that a lawsuit by former C.I.A. detainees should be shut down based on the “state secrets” doctrine. It has also left the door open to resuming military commission trials.
During their confirmation hearings, Solicitor General nominee Elena Kagan endorsed the view that someone financing Al Qaeda could be defined as an enemy combatant and held without trial indefinitely, and Leon Panetta suggested that he might continue the extraordinary rendition program.
Still, Obama is the boss, and his recent executive orders ostensibly outlaw extraordinary rendition, and it is ultimately Obama's decision, not Kagan's, how to deal with suspected terrorists or their funders. As Glenn Greenwald points out, what's disconcerting is that the most important questions have yet to be answered, such as whether or not terrorists will be prosecuted in civilian courts.
There really is no other viable option that preserves the rule of law and appropriately restricts the president's power. There's no real reason not to try terrorist suspects in civilian courts, that we believe they are terrible people is not a sufficient excuse to deny them due process, because being "a bad person" isn't a crime. If we have to release them because of insufficient evidence, but the government still believes them to be guilty, then the proper thing to do is keep tabs on them. Meanwhile, the military commissions are discredited as an avenue for justice because of the perception that they've been reverse engineered to secure convictions, and the fact that we just lock up whomever we feel like for as long as we want seriously hurts our interests abroad. There are sufficient legal structures in place to facilitate the safe use of confidential information as evidence, and we have successfully convicted terrorists in civilian courts before. There's a lot of talk about how the commissions are necessary for national security, but what exactly are we protecting if not a society that operates through due process of law?
Congress recently signaled they would be willing to step in and check Obama after he abused the state secrets doctrine to block a lawsuit filed on behalf of Binyam Mohamed, they may have to do so again.
-- A. Serwer
