Barack Obama’s claim to czarlike powers in a perpetual global war
against international terrorism has been blunted by a judicial appointee
of former President George W. Bush. Last week, in the case Fadi
al Maqaleh, United States District Judge John D. Bates denied
that President Obama could make suspected "enemy combatants"
disappear into the Bagram Theater Internment Facility at Bagram
Airfield in Afghanistan without an opportunity for exoneration.
(While President Obama has abandoned the term enemy combatant
for Guantanamo Bay detainees, he has retained the label for detainees
is a welcome check on an emerging pattern of mightily expansive
claims of executive authority by the new administration. In early
February, President Obama sought another imperial power before the
United States Court of Appeals for the 9th Circuit in the case Mohammed
v. Jeppesen Dataplan. The complaint alleged that the plaintiffs
had been seized by American personnel, taken to airports, stripped,
blindfolded, shackled to the floor of a Gulfstream V, and taken
to destination countries for torture and harsh incarceration. The
District Court dismissed the complaint because then-President Bush
and Vice President Cheney argued that state secrets would be exposed
if the case were litigated. During oral argument before the 9th
Circuit, Obama echoed the state-secrets argument made by Bush and
Cheney. Similarly, the president who promised "change"
is wielding the tool of state secrets in aiming to dismiss, without
the gathering of evidence, challenges to the National Security Agency’s
Terrorist Surveillance Program, which entailed warrantless phone
or e-mail interceptions of American citizens on American soil in
contravention of the Foreign Intelligence Surveillance Act of 1978.
This defense has failed before Judge Vaughn R. Walker in early rounds
of the litigation. And, again, the state-secrets privilege is the
administration’s response, if ancillary to a defense of retroactive
immunity, in a brief filed last week to the efforts
of the Electronic Frontier Foundation to sue Bush administration
officials for the NSA’s wiretapping.
Fein is a constitutional lawyer with Bruce Fein & Associates Inc.
and author of Constitutional
Peril: The Life and Death Struggle for our Constitution and Democracy.