Obama Channels Cheney Obama adopts Bush view on the powers of the presidency.
The Obama Administration this week released its predecessor's post-9/11 legal memoranda in the name of "transparency," producing another round of feel-good Bush criticism. Anyone interested in President Obama's actual executive-power policies, however, should look at his position on warrantless wiretapping. Dick Cheney must be smiling.
In a federal lawsuit, the Obama legal team is arguing that judges lack the authority to enforce their own rulings in classified matters of national security. The standoff concerns the Oregon chapter of the Al- Haramain Islamic Foundation, a Saudi Arabian charity that was shut down in 2004 on evidence that it was financing al Qaeda. Al-Haramain sued the Bush Administration in 2005, claiming it had been illegally wiretapped.
At the heart of Al-Haramain's case is a classified document that it says proves that the alleged eavesdropping was not authorized under the Foreign Intelligence Surveillance Act, or FISA. That record was inadvertently disclosed after Al-Haramain was designated as a terrorist organization; the Bush Administration declared such documents state secrets after their existence became known.
In July, the Ninth Circuit Court of Appeals upheld the President's right to do so, which should have ended the matter. But the San Francisco panel also returned the case to the presiding district court judge, Vaughn Walker, ordering him to decide if FISA pre-empts the state secrets privilege. If he does, Al-Haramain would be allowed to use the document to establish the standing to litigate.
The Obama Justice Department has adopted a legal stance identical to, if not more aggressive than, the Bush version. It argues that the court-forced disclosure of the surveillance programs would cause "exceptional harm to national security" by exposing intelligence sources and methods. Last Friday the Ninth Circuit denied the latest emergency motion to dismiss, again kicking matters back to Judge Walker.
In court documents filed hours later, Justice argues that the decision to release classified information "is committed to the discretion of the Executive Branch, and is not subject to judicial review. Moreover, the Court does not have independent power . . . to order the Government to grant counsel access to classified information when the Executive Branch has denied them such access." The brief continues that federal judges are "ill-equipped to second-guess the Executive Branch."
That's about as pure an assertion of Presidential power as they come, and we're beginning to wonder if the White House has put David Addington, Mr. Cheney's chief legal aide, on retainer. The practical effect is to prevent the courts from reviewing the legality of the warrantless wiretapping program that Mr. Obama repeatedly claimed to find so heinous -- at least before taking office. Justice, by the way, is making the same state secrets argument in a separate lawsuit involving rendition and a Boeing subsidiary.
Hide the children, but we agree with Mr. Obama that the President has inherent Article II Constitutional powers that neither the judiciary nor statutes like FISA can impinge upon. The FISA appeals court said as much in a decision released in January, as did Attorney General Eric Holder during his confirmation hearings. It's reassuring to know the Administration is refusing to compromise core executive-branch prerogatives, especially on war powers.
Then again, we are relearning that the "Imperial Presidency" is only imperial when the President is a Republican. Democrats who spent years denouncing George Bush for "spying on Americans" and "illegal wiretaps" are now conspicuously silent. Yet these same liberals are going ballistic about the Bush-era legal memos released this week. Cognitive dissonance is the polite explanation, and we wouldn't be surprised if Mr. Holder released them precisely to distract liberal attention from the Al-Haramain case.
By the way, those Bush documents are Office of Legal Counsel memos, not policy directives. They were written in the immediate aftermath of a major terrorist attack, when more seemed possible, and it would have been irresponsible not to explore the outer limits of Presidential war powers in the event of a worst-case scenario. Based on what we are learning so far about Mr. Obama's policies, his Administration would do the same.