[Peace-discuss] "Progressive" presidency

[C. G. Estabrook]

	Wall Street Journal [editorial page] - March 9, 2009
	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.
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