The Wall Street Journal editors see President Obama "channeling Cheney" in citing the President's Article II "inherent powers" (legalese for powers that inhere in a given branch or office, as essential to the function of same) in a major case involving an Islamic charity accused of supporting terrorism. In a nutshell, the Justice Department has told federal judges in the case that private litigants cannot have access to classified documents, lest intelligence "sources and methods" be compromised. The charity seeks to prove that the Bush administration illegally wiretapped its phones, in violation of the Foreign Intelligence Surveillance Act of 1978 (FISA). Team 44 takes the legal position that the President's Article II Constitutional powers trump federal statutes--as, in matter of legal hierarchy, they in fact do. Only were the Supreme Court to hold that the President has no inherent powers could this bar be surmounted. Such a position would, of course, equally apply to Congress and the Supreme Court, in terms of their inherent powers. One inherent power of the courts, under American law, is the power of judicial review. so look for the Supremos to take a pass on this one.
Team Obama released Bush 43 legal memos (52 in all, written in the period 9/25/01 - 5/30/05, posted by propublica) & trashed them, the WSJ suggests, perhaps as cover for their legal position in this case; former top Bush 43 legal adviser John Yoo explains why legal positions for protecting the homeland after 9/11 were taken by Team Bush 43 at a time when everyone expected to be hit again in short order.
Now, even better news, on continuity of sound Bush policies: The Justice Department was invited by a federal judge, in a case seeking a writ of habeas corpus filed on behalf of a detainee held at Bagram base in Afghanistan, to change the Bush administration's position, which was that the federal courts lack jurisdiction over detainees held on foreign soil. Team Obama declined the invitation. A brilliant Weekly Standard article explains why Team Obama did the right thing, again:
President Obama's legal team has reversed course from statements he made during the campaign, fully embracing some of the most controversial terrorist detention positions of his predecessor. These include (1) indefinite detention of alleged terrorists--without charge--is proper in the fight against terrorism; (2) such detention is appropriate even if the suspected terrorist was not apprehended on the battlefield; (3) alien unlawful enemy combatants held abroad may be imprisoned without rights to lawyers or courts; (4) the executive branch has the sole power to decide who should be detained; and (5) these combatants have no constitutional right to habeas corpus. In the legal brief drafted by President Bush's Justice Department, and fully adopted by President Obama's Justice Department, the government warned the judge that a ruling against it would have a "crippling effect on war efforts" and is simply "unthinkable both legally and practically."
In essence, Team Obama is taking exactly the same position team Bush 43 took over Guantanamo. There the Supreme Court, an a disgraceful decision, held that Gitmo is not truly foreign soil because the US acts as a sovereign there. (In earlier LFTC posts--LFTC 6/26/08 - "Sovereignty & the Supremes' Humbug"; LFTC 6/16/08 - "Habeas Corpus Suicide Pact"; LFTC 12/12/07 - "Habeas Corpus: Supremes Hold Trumps"--I addressed this absurd contention, and will not re-do this here. Team 44 may prevail, as not even the Supremos can fashion a sovereignty argument to give them jurisdiction over Bagram. They may try to find something else, but 44 is making the effort to protect American lives, so give him due credit.
All hail!!! Apostle Barack's Damascus Road conversions come not a moment too soon. May he soon experience a similar one as to his economic policies.
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