Pity the Poor Imperial Executive



If there’s ever a case for the president to stand up to Congress and do things his way, it’s when he is within his Constitutional authority and is defending the principles of the Bill of Rights against a hostile American public and legislature. That is, if the president should ever be “tough” and uncompromising, it is to withstand the lynch-mob mentality of the rest of political culture and defend the rights of individuals.

There was a chance for Obama to do this, and it wouldn’t have even cost him much politically. He was elected by voters who knew that he was promising a different approach to civil liberties and the war on terrorism than Bush and the Republicans. He promised during his campaign to protect the Fourth Amendment, stop torture, close Guantánamo, end the lawless military commissions, and restore habeas corpus. He had the political capital to achieve these goals in 2009 and beyond.

Then, even his party in power turned on this supposed goal of his. They refused to fund the closing of Guantánamo. They expressed reservations about trying Khalid Sheikh Muhammed in a civil proceeding. They did not unify behind their president in the way that Republicans unified behind Bush as he trampled the rule of law with everything he did in the war on terror.

Of course, this analysis is charitable to Obama. It assumes that he indeed wanted to stand up for due process and was betrayed by his own party. But let’s be charitable. After all, it always helps to assume the best of an administration before we tear apart its latest pronouncements to show that, even taking the executive at its word, there is no excuse for its behavior.

Attorney General Eric Holder is whining and complaining about Congress for butting in on the question of executive detention of accused terrorists. The administration, and Holder especially, used to be adamant that civil trials were the way to go. Now Holder is blaming others for the politicization of detention policy. “He scolded Congress for suggesting that the federal court system could not handle a terrorism case,” reports CBS News.

In particular, the attorney general protests that “the prosecution of Khalid Sheikh Mohammad and his co-conspirators should never have been about settling ideological arguments or scoring political points.” He says, “Too many people – many of whom certainly know better – have expressed doubts about our time-honored and time-tested system of justice.”

But here’s where the Orwellian irony comes in. Holder intones: “Decisions about who, where and how to prosecute have always been – and must remain – the responsibility of the executive branch. Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments.”

And now for the real kicker: “I know this case in the way that members of Congress do not... I respect their ability to disagree, [but] this is an executive branch function – a unique executive branch function.”

Wow. Just wow.

This is unspeakably brazen because Holder has advanced two complaints, not strictly contradictory but definitely at odds in spirit: One, that Congress has questioned Obama’s wisdom to decide to use the federal civil court system to try suspected terrorists, and two, Obama’s current decision to renege on this promise, and instead try accused 9/11 terrorists and others by military commission, is a “unique executive branch” decision. The presidency, you see, has “access to the evidence. . . necessary to make” these decisions.

Obama – and most liberals – correctly criticized Bush’s detention policy on at least two grounds: One, that such procedures as military commissions were inherently more lawless than normal prosecution, especially without the protections afforded to POWs in an officially declared war; and two, such decisions, while appropriately a function of the executive branch, were not to exclude totally the role of Congress and the federal judiciary. Congress, being a coequal political branch, has the authority to shape detention policy with the executive. And the court system has the right to question such detentions and ensure that bare minimum legal requirements, such as the right of habeas corpus, be respected.

Obama made these points over and over. So did almost everyone on the left side of the spectrum, including most congressional Democrats, who talked about such questions between about 2002 and 2008.

But now Obama’s attorney general is making the exact opposite point: He is saying that the presidency knows better than Congress (or the people, presumably), and detention policy must be the sole province of the executive branch. He is singing a rendition of Bush’s broad defense of executive supremacy without even changing a single note.

At the same time, he is daring to attack Congress for having not trusted civilian trials! All this while he simultaneously defends the president for not wanting to go through with civilian trials.

But the real absurdity comes in his essentially blaming Congress and others for interfering with Obama’s detention policy. If indeed detention policy is a “unique executive branch function,” why didn’t he and Obama stand up against the Republicans, the moderate Democrats, and the skeptical American public back when they said they favored civilian trials? If it’s really up to the executive branch to determine how to go forward with the trials of terrorists, why didn’t he and Obama make this point two years ago – back when they presumably believed that military commissions were not the way to go?

Oh, the poor imperial presidency. It has every right and power in the world to detain people forever, and to try them in military commissions without traditional due process. This, after all, is a “unique executive branch function.” Yet it is such a delicate flower, that poor, beleaguered executive branch, that some fellow Democrats and Congressional Republicans are capable of forestalling its efforts to bring about justice through their insistence on “scoring political points.”

Poor, poor Obama. He can bomb Libya without even giving a nod to Congress, but he can’t bear to stand up to his own party when they criticize him for doing the (relatively) right thing.

Of course, I am being very charitable here, and assuming that Obama really wanted to restore the rule of law back in 2009. Even if this is so, his betrayal of these promises so as to embrace the Bush approach is sickening and inexcusable. But maybe the charitable interpretation is wrong. Maybe he was always lying. Those are really the only options.

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