Why Dawn Johnsen Is Important
Here's yet another civil liberties issue where the Obama Administration has decided to mirror the Bush Administration in order to defend their practices.
The Obama administration yesterday appealed a judge's decision granting three detainees at a U.S. military prison in Afghanistan the right to challenge their detention in U.S. courts, arguing partly that compliance would inhibit the future capture of Pakistani citizens for detention by U.S. forces in Afghanistan.
The appeal makes clear that, despite the ruling this month by U.S. District Judge John D. Bates, the Obama administration for now wants to stick with a policy set by President George W. Bush that those incarcerated by U.S. troops in foreign prisons have no U.S. legal rights. But officials said that did not foreclose a change of heart after the completion in July of a comprehensive review of detainee policy.
"While that review is pending, we concluded that it was necessary to appeal this ruling," said Justice Department spokesman Dean Boyd. Otherwise, he said, the detainees would immediately have access to U.S. courts, which the administration has long said would impose large burdens on its military forces in the region.
That's really not the issue at all, and the Obama lawyers are making rash assumptions to maintain untrammeled power. The judge's ruling applied to non-Afghans who were captured in areas completely separate from the Afghan conflict, who ought to have the right to habeas corpus proceedings to challenge their detentions in court. The lawyers let their slip show just a couple paragraphs later, explaining that the American system of justice is simply too taxing.
Holding such proceedings would force the military to reveal details about the "the place of capture" and the "identity of U.S. or foreign forces or entities" that conducted the operation, the appeal said. It added that keeping records on such matters and litigating the cases would divert U.S. forces from their counterterrorism missions.
Following the law would divert their attention, so, stuff it.
Glenn Greenwald has lots more on this, as you would expect, including the powerful use of then-candidate Obama's words against him - in talking about the Supreme Court's decision in Boumediene, which allowed habeas rights for all prisoners at Guantanamo, Obama said:
Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.
He's essentially turned his back on that argument now, considering that Bagram and Guantanamo are no different when it comes to the subjects who were picked up around the world and flown far away to these prisons without formal charges made.
One thing he does not address is the importance of a strong, independent voice at the Office of Legal Counsel. As I understand it the OLC is the Supreme Court inside the executive branch. The decisions that the executive wants to make get checked by the legal opinions coming out of OLC. Now, in the Bush Administration those opinions were manufactured by the likes of John Yoo and Jay Bybee to achieve a desired result. By all accounts, Dawn Johnsen is quite different, and she has repeatedly gone on record against the use of state secrets and other deprivations of the Bush Administration. But she is not yet in office, with her confirmation being held up in the Senate. What exactly does this mean? Is there any review process going on inside DoJ? Is the acting OLC chief a Bush-era retread or someone without strong opinions on the issues, getting rolled by Eric Holder and the desires of the President to defend Bush policies? We don't know, as all of that happens outside the public eye. But this certainly does argue for Johnsen to be quickly confirmed, to at least see if the decisions change once an independent voice committed to civil liberties protections and the rule of law has at least some power to dictate what the executive can and cannot do.
...just to update, I sought some clarification here, and OLC wouldn't necessarily have input on every single DoJ decision. It is unclear whether the decision on Bagram would fall under the purview of OLC at all. And the Attorney General can choose to override the OLC, in any case. I still think Johnsen's absence isn't exactly helping matters, and progressives shouldn't be silent in arguing for her confirmation, particularly because the opposition is being led by the conservative smear machine. But it's hard to speculate whether or not her presence would be helpful in this specific case.