President 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 held elsewhere.)
Bates’ ruling 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.
April 15, 2009
Bruce 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.
