Many have been quick to attack Obama, charging he has broken his campaign promises to restore and defend civil liberties. Some of these charges are utterly unwarranted, and fueled from a misunderstanding of the real issues. A case in point: the claim that Obama's support for continuing renditions is a breach of promise, rests on a shaky foundation that fails to differentiate between renditions and extraordinary renditions. There is a world of difference between these two terms. Many other charges leveled against Obama have been related to DOJ legal briefs filed in preexisting trial cases, which supported the Bush Administration's previously held positions in these cases. All of these either falsely attribute motives for the briefs, or are as yet unproven.
There are sound reasons why an incoming President should not begin the term by completely upsetting the apple cart left by the previous President. It is not the duty of a sitting President to initiate criminal investigations into the acts of the Previous President. That is clearly a Congressional duty. If a President were to do this, it would assure a dark future in America: partisan witch trials whenever the party of the sitting President changed. A new President's DOJ should not get involved with wholesale changes in government arguments previously presented in ongoing Federal Court cases. An important element of justice is stability, and stability requires continuity. A new President sails into dangerous uncharted waters if claiming that past law, previously supported by the DOJ is suddenly unconstitutional, because of an election result. Again, this only will lead to horrible Partisan factionalism in the future. A President's duty is to enforce law, unless it is egregiously offensive to the Constitution. Law, enacted prior to a President's inauguration should be invested with a great sense of its legitimacy. If the President does not like the law, (s)he should petition Congress to change it, and not attempt to legislate from within the Executive Branch.
These are many of the reasons that Obama's DOJ has presented arguments in preexisting trial cases that many have viewed as breaking campaign promises. There has also been a great deal of noise generated by pro-Bush factions in false flag operations, as a means to prove that Bush acted properly when President. The left-side of the political bipolarity has allowed itself to be corrupted with an ailment that once only predominated on the right: CONSPIRACY. Ditto-heads are repugnant be they from the left or the right.
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Recently, a very good litmus test for Obama's rectitude of intent towards supporting human rights has arisen from a DC Circuit court case. It is the April 2, 2009, Memorandum Opinion issued by Judge John D. Bates, rendering a narrow decision applying Boumediene v Bush to govermental objection for allowing pleas for habeas corpus relief made by four detainees held at The Bagram Theater Internment Facility, Bagram Air Force Base, Afghanistan, deciding that three of the four pleas could continue.
Judge John D. Bates, cannot in any stretch of the imagination be defined as a "liberal" judge. He is a former Reagan appointed US Attorney for the District of Columbia, 1980-1987; Chief, Civil Division, Office of the U.S. Attorney, District of Columbia, 1987-1997; and Deputy independent counsel, Office of the Independent Counsel, 1995-1997. he was appointed to the Federal bench by GW Bush, receiving his commission on December 14, 2001. He was appointed to the FISA Court by Chief Justice Roberts. Bates is also not a simple knee-jerk rightist. His past decisions have managed to rankle both sides of the partisan schism. He has shown himself to be a Judge who rules without concern for the effects upon party politics, and a believer in habeas corpus. In short, Judge Bates is a REAL Conservative.
On January 22, 2009, Judge Bates asked Obama's incoming DOJ whether they intended to revise the previous stated position made by the government. The DOJ responded on February 22, 2009 with a terse two sentence negative, and many loudly claimed that Obama was reneging on his campaign promises, but the actual response was not clear as a bell:
This Court's Order of January 22, 2009 invited the Government to inform the Court by February 20, 2009, whether it intends to refine its position on whether the Court has jurisdiction over habeas petitions filed by detainees held at the United States military base in Bagram, Afghanistan. Having considered the matter, the Government adheres to its previously articulated position.
In his Memorandum Opinion, Judge Bates, using a careful application of Boumediene as his guide, ruled that a subset of detainees held at Bagram had a right to habeas corpus appeals to their detention in Federal Courts. The subset applied to detainees who met a three point test: 1) they had been captured outside of Afghanistan and then transported to Bagram; 2) they were not Afghan citizens; and 3) they had been detained without being charged for a substantial period of time. The one detainee not allowed to pursue habeas corpus relief in this memorandum, Haji Wazir, is an Afghan citizen, yet Judge Bates' court order left open a chance of still receiving it, based upon further replies from both the government and his counsel.
Some may believe that this decision did not reach far enough, yet consider the ramifications. Judge Bates' Opinion decided that habeas corpus can in some instances even reach to detention within a theater of war. The rationale should seem proper for anyone who believes in human rights:
It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war. It is quite another thing to apprehend people in foreign countries -- far from any Afghan battlefield -- and then bring them to a theater of war, where the Constitution arguably may not reach. Such rendition resurrects the same specter of limitless Executive power the Supreme Court sought to guard against in Boumediene -- the concern that the Executive could move detainees physically beyond the reach of the Constitution and detain them indefinitely.
Is this not a restatement of two complaints against King George in the Declaration of Independence?
For depriving us, in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
In my mind, this case is a litmus test for the Obama Administration. do they now walk away, and accept this decision as possessing the force of law, or do they appeal it to a higher court?
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