Bush Power Grabs Exceeded Only by Obama’s

Three days go, WaPo wrote that the Obama administration was considering an executive order on [keeping in place] “prolonged” detention.

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said.

I like the way the piece suggestes Obama retaining the “authority to incarcerate terrorism suspects indefinitely” is only because Congress “could stall plans to close . . . Guantanamo Bay.” I’m sure if Congress hopped to Obama’s tune, he’d relinquish that argument, right?? Close Guantanamo tomorrow, right? It’s all Congress’ fault, after all.

Heh. “Anger key supporters.” No kidding. LOTS of ‘bots bought the statement that BO would remove all that was Bush. Not so fast. Still, the WaPo piece has all the feel of a “trial balloon” designed to gauge public acceptance of an idea before actually doing it.

Glenn Greenwald at Salon agrees, but offers some other interesting points.

If you’re interested, do read it. I’ve taken very little and it’s pretty good.

Anonymous trial balloon articles like this one are difficult to comment on because it’s obviously designed to announce that a certain policy is being considered before it’s actually written, and so none of the key details is known. Would Obama’s new detention powers apply only to current “War on Terror” prisoners at places like Guantanamo and Bagram, or would they also apply to future, not-yet-abducted detainees as well? Would these powers apply to detainees picked up anywhere in the world, far away from “war zones”? Would there be any judicial review or other meaningful oversight provisions so that — even in theory — this was something other than the unilateral, unchecked presidential power to detain indefinitely without charges? None of these important details is known (though the article notes that, under one White House proposal, “ongoing detention would be subject to annual presidential review”; the Emperor, sitting alone, will decree once a year whether they must remain in a cage).

Greenwald takes issue with the WaPo article also as sloppy journalism and he’s got a point. He says as a “trial balloon,” the WaPo story is hard to evalutate. But he then outlines what he sees as a pattern of behavior from the BO administration. Greenwald says the BO will work with appropriate agencies and within established practice as long as it gives him what he wants. When it doesn’t, he’ll do an end run.

There has now emerged a very clear — and very disturbing — pattern whereby Obama is willing to use legal mechanisms and recognize the authority of other branches only if he’s assured that he’ll get the outcome he wants. If he can’t get what he wants from those processes, he’ll just assert Bush-like unilateral powers to bypass those processes and do what he wants anyway. In other words, what distinguishes Obama from the first-term Bush is that Obama is willing to indulge the charade that Congress, the courts and the rule of law have some role to play in political outcomes as long as they give him the power he wants. But where those processes impede Obama’s will, he’ll just bypass them and assert the unilateral power to do what he wants anyway (by contrast, the first-term Bush was unwilling to go to Congress to get expanded powers even where Congress was eager to give them to him; the second-term Bush, like Obama, was willing to allow Congress to endorse his radical proposals: hence, the Military Commissions Act, the Protect America Act, the FISA Amendments Act, etc.).

Czars anyone? I mentioned this possibility myself back in January, suggesting that Obama might “fill [cabinet] slots as necessary for political cover and set up a more loyal organization outside official channels.” Then I wondered:

As a practical matter, who do these czars report to? Will they have their own staff? If a local government or, heaven forbid, a citizen wants help on climate change, who ya gonna call? Whose paperwork are you going to fill out and who will be accountable to you? When the office of the czar inevitably points a finger at an existing agency and the agency points to the czar, what will get done?

Back to Greenwald:

This [bypassing other authority and asserting unilateral authority] was also the mentality that shaped Obama’s “civil liberties” speech generally and his “prolonged detention” policy specifically. In that speech, Obama movingly assured us that some of the Guantanamo detainees will be tried in a real court — i.e., only those the DOJ is certain ahead of time they can convict. For those about whom there’s uncertainty, he’s going to create new military commissions to make it easier to obtain convictions, and then try some of the detainees there — i.e., only those they are certain ahead of time they can convict there. For the rest — meaning those about whom Obama can’t be certain he’ll get the outcome he wants in a judicial proceeding or military commission — he’ll just keep them locked up anyway. In other words, he’ll indulge the charade that people he wants to keep in a cage are entitled to some process (a real court or military commissions) only where he knows in advance he will get what he wants; where he doesn’t know that, he’ll bypass those pretty processes and assert the unilateral right to keep them imprisoned anyway.

A government that will give you a trial before imprisoning you only where it knows ahead of time it will win — and, where it doesn’t know that, will just imprison you without a trial — isn’t a government that believes in due process. It’s one that believes in show trials.

And here again, with this Executive Order proposal, we see this same mentality at play. According to the Post article, one motive behind the Executive Order is that “White House officials are increasingly worried that reaching quick agreement with Congress on a new detention system may be impossible.” In other words: we’ll be happy to work with Congress as long as they give us what we want; if they don’t, we’ll just do it anyway using unilateral presidential powers. It’s certainly possible — in fact, I’d say it’s likely — that if Congress passes a preventive detention law, it will be even more Draconian than the one Obama wants. But a President who recognizes Congressional authority only when he likes the outcome — and ignores it when he doesn’t — isn’t a President who actually recognizes Congressional authority at all.

Oh SNAP!!

Greenwald also directed readers to a Rachel Maddow piece (I know, I know) that takes issue with Obama on nearly identical grounds. Worth viewing.

Most of this story was lost in the flurry of Michael Jackson coverage. Still, to anyone paying the least amount of attention, BO’s moves here should not have been a surprise at all. Obama has deliberately asserted that the public has no right to examine his past in the same manner as other candidates. He established something of a shadow cabinet by creating so many czars that he can bypass many if not most of the established agencies and levers of US government. Really, the guy has been saying “do as I say, not as I do” all along. Some just didn’t want to hear it.

So, when is Obama NOT Bush? When he goes to church.

According to Time:

Now, in an unexpected move, Obama has told White House aides that instead of joining a congregation in Washington, D.C., he will follow in George W. Bush’s footsteps and make his primary place of worship Evergreen Chapel, the nondenominational church at Camp David.

Oh, snap.