There’s a lot of buzz about Obama’s willingness (or not) to perpetuate the worst legal abuses of the CheneyBush administration. The excellent writing this week is daunting. Here’s a meal-to-go for the lunchtime crowd from four indispensable chefs. One’s a snack; all four will bring on indigestion:

Scott Horton vivisects the al-Marri case in, The Enemy Combatant Canard. Enemy combatant is the category of war prisoner Bush abused more than the English language in order to keep whomever he wanted in a hell hole.

Charlie Savage‘s front-page NYT piece today, Obama’s War on Terror May Resemble Bush’s in Some Areas, on which tools Obama may keep from the Cheney tool box.

[T]he [Obama] administration’s changes may turn out to be less sweeping than many had hoped or feared — prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies.

Glenn Greenwald‘s summary of where we are now, with comments on Charlie Savage’s piece.

The bottom line is this: most of the key civil liberties and Constitutional questions that linger from the dark Bush/Cheney era remain unresolved thus far. Obama has not yet embraced or rejected most of them. And that is by design.

Jane Mayer in The New Yorker, in Hard Cases, asks, Will Obama institute a new kind of preventive detention for terrorist suspects?


One of several issues is whether we need a "National Security" Court. The answer is an emphatic "No".

[I]t is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

That often-quoted line is from a classic English case from 1924. The "seen to be done" applied to real or apparent impropriety on the part of a tribunal. It was assumed that it applied to the physical appearance of the litigants and witness in open court and that there would be a public record of the proceedings, even if its release were delayed.

It’s a given that secret courts operate in secret, according to secret rules. The likelihood is that they would perpetuate the worst excesses of the CheneyBush administration. Among its vulnerabilities is, as with the process in the FISA court, that only one side – the government’s – tends to be allowed to argue its case. Such a court would remove the cloak of the law and immunize government from having to prove its case to rational, unconflicted minds. What’s left is naked power, otherwise known as tyranny:

Thomas Jefferson and James Madison shared one definition of the term “tyrant”–a ruler who deprived a person of his freedom without operation of law and without accountability before a court. Which perhaps explains why American historians are consistently ranking George W. Bush at the very bottom of the list of all American presidents; the man, ultimately, is guilty of tyranny.

Domestic and international security is not achieved by prohibiting our fellows from seeking justice or imprisoning them for life without a chance to be heard. Real security is achieved by allowing those who feel aggrieved their due process and their day in open court. That’s one reason we have the talking shop known as United Nation’s General Assembly. Assemblies don’t make decisions, they can diffuse conflict by giving the aggrieved a forum, by publicizing wrongs and subjecting them to peer criticism. That is empowering in itself and it’s one reason John Bolton and the Cheneyites hate the UN as much as they hate unions.

Real security is achieved by having our legislative and judicial branches vigorously compete with the executive, not by having them lay down before it. The court we need is at the federal court house. It worked for Capone, Noriega, Nixon’s felons, and the bombers of Oklahoma City. Public trials are the price for legitimately bringing the full weight of government onto the shoulders of those we claim have committed acts we cannot tolerate. Without them, we are left with Judge Roy Bean and Texas justice, Pinochet’s Chile, or worse.

I agree with Glenn that the jury is still out on what Obama will do. That that’s intentional is a gloomy sign. Obama may want to pick his battles. Bush left him many and Republicans have nothing left but obstructionism to keep them from the wilderness. But Obama may also be wondering if he can wear the Ring without being subject to its sway. From Ulysses to Nixon, literature, history and the courts are full of those who believed their own fairy tales.

We keep our government from becoming a tyranny, even of the kind, only through the rule of law:

We don’t place faith in the Goodness and kindness of specific leaders — even Barack Obama — to secretly exercise powers for our own Good. We rely instead on transparency and on constant compulsory limits on those powers as imposed by the Constitution, by other branches, and by law. That’s what it means to be a nation of laws and not men.

Those are not the thoughts of naive idealists or the radical rantings of a lefty liberal. They are a street politician’s game plan, even if said in a charming 18th century idiom. Jefferson’s ambition was matched only by his writing; his PR hacks were masters at infighting and innuendo. Madison could out-think and out-write his contemporaries. And Franklin out-bed Bill Clinton long before zippers were invented.

The last word I leave to Stirling Newberry, from 2004, on Why Justice Must be Seen to be Done:

We must have, at long last, real freedom, and real truth.
Or we will, ourselves, have committed a crime.
And "Where there is crime, there is no justice."