So far, there are at least 6 legal cases in which Obama’s Department of Justice has embraced Bush’s positions on civil liberties and executive power:
1. I have already posted on Mohamed v. Jeppesen Dataplan, where Obama’s DOJ sought to use the “state secrets privilege” to block (alleged) victims of rendition and torture from suing the transport company used by the CIA.
2. The Obama DOJ again invoked the state secrets privilege in the case of Al-Haramain v. Obama, this time in order to block a judicial ruling on Bush’s illegal surveillance program.
After this argument was rejected by the court Obama appealed again – this time embracing Cheney / Addington theories of executive power and asserting that no court can challenge the President’s decision to withhold classified documents.
Here is Glenn Greenwald’s exegesis:
In the context in which Obama is now invoking this theory, think about what it means: if, as happened here, the President breaks the law,then he can just label the relevant evidence “classified” and refuse toturn it over to a court which is attempting to rule on the legality of the President’s actions. Once the President decrees that a court isbarred from reviewing the relevant evidence because the President claims it is “classified,” that’s the end of that.
In both of the above cases, Obama adopted the Bush innovation of using the state secrets privilege to throw out entire lawsuits, rather than just sensitive pieces of evidence.
3. In the case of Al-Marri v. Spagone, Obama’s DOJ successfully blocked a Supreme Court ruling on the legality of Bush’s practice of detaining U.S. residents as “enemy combatants” indefinitely without charges or trial.
They blocked the ruling by finally bringing criminal charges against Al-Marri, and then convincing the Supreme Court that the questions regarding the legality of his 6 year detention were thereby rendered moot.
On the positive side, Al-Marri is finally getting his day in court. Here is a video update from Al-Marri’s lawyer.
4. On top of all of this, last month Obama sided with Bush in asserting that “enemy combatants” held at Bagram Airfield in Afghanistan have no rights to challenge their detention in U.S. courts.
This means that Obama’s promise to close Guantanamo becomes almost irrelevant,since detainees can now just be taken to Bagram for indefinite,extralegal detention. About 600 prisoners are now held at Bagram, and it is about to undergo a $60 million expansion. Bagram threatens to become Obama’s Guantanamo.
5. Then there is the email case,where Obama’s DOJ is siding with the former administration in “trying to kill a lawsuit that seeks to recover what could be millions of missing White House e-mails.”
6. And finally the DNA case,where Obama’s DOJ “turned down a request… to disavow a Bush Administration stance on prisoner’s access to DNA evidence in post-conviction proceedings.”