Congress The Civil Libertarians Of Last Resort?

OK, what the f%&! is going on here? The Obama Administration has an empirically good team on civil liberties at the Justice Department. And yet in the last few days, DoJ lawyers have backed up President Bush's extreme use of state secrets privileges, Leon Panetta - in a generally solid hearing at the Senate Intelligence Committee - told the panel that some detainees were "too dangerous to prosecute" and may have to be held for a long time, and now Elena Kagan, nominated as Solicitor General, has agreed that "enemy combatants" can be detained without trial:

Harvard Law Dean Elena Kagan, President Obama's choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.

She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.

Now reading further, Kagan was apparently led by the nose by Huckleberry Graham on this one. And this isn't totally bad, but there's a significant amount of mission creep that can result. For example, with whom are we at war? When is that war considered over? What is the battlefield? For an Administration that is trying not to use the phrase "war on terror," their stated policies are not necessarily reflecting that. Not to mention the fact that the Supreme Court has ALREADY RULED in this matter and decided that "enemy combatants" as defined by the Bush Administration have habeas corpus rights. Simply put, we are not a nation of laws if we have a separate set of them for some people. The rules of criminal justice can easily apply to all, at the minimum by charging suspects with a crime and giving them a trial.

Perhaps the good that's coming of this is the pressure it is putting on Congress to act, and how they are actually meeting the challenge. Russ Feingold blasted the Administration for their decision to invoke the state secrets privilege, and he is asking for a classified briefing on the matter as well as pushing his own legislation that would limit how state secrets can be used. Similarly, Patrick Leahy is being very adamant about the need for investigating the crimes of the Bush Administration, even talking to the White House counsel about it:

Senate Judiciary Chairman Patrick Leahy and White House Chief Counsel Greg Craig discussed on Tuesday the Senator's proposal to set up a truth and reconciliation commission to investigate potential crimes of the Bush administration.

"I went over some of the parameters of it and they were well aware at the White House of what I'm talking about," Leahy told the Huffington Post. "And we just agreed to talk further."

The dialogue between the Vermont Democrat and the president's office is a new phase in a delicate process concerning how best to handle potential crimes in the previous White House. Leahy proposed an investigatory commission on Monday, after which the president -- speaking at his first news conference -- said he did not currently have an opinion on the plan. Obama went on to say that he would rather look forward than backward, but he promised to prosecute any crime -- whether committed was a former White House official or everyday citizen [...]

Leahy did add an important ripple to the story in the interview with the Huffington Post: Congress will likely proceed with investigations regardless of whether Obama is on board.

"Oh yeah," Leahy said when asked if he would go forward without Obama's endorsement. "I think the Senate and the Congress as whole has an oversight responsibility that has to be carried out here anyway. Now it is much easier with the cooperation of the administration. A lot of things with the subpoenas I issued the past few years, we got a lot of information but a lot of it was held back."

I am unhappy with some of the moves by the Administration on these issues thus far, but am heartened by Congress stepping up to perform its oversight functions.

....the House is introducing a companion bill on the state secrets privilege today, with Rep. Jerrold Nadler (D-NY), John Conyers (D-MI), Zoe Lofgren (D-CA), and Tom Petri (R-WI) signing on.