Obama's Power Grab

By Dan Froomkin
12:10 PM ET, 04/15/2009

Obama in explanation mode yesterday. (AP Photo/Gerald Herbert)

President Obama yesterday showed the nation once again how good he is at explaining complicated things. Next up on his agenda should be an explanation -- or, rather, a clarification -- of his views on presidential power and George W. Bush's counterterrorism legacy.

It's past time for Obama to address his apparent adoption of positions he formerly characterized as extremist, and his suddenly cooling commitment to transparency when it comes to embarrassing secrets left over from the Bush era.

In the past few weeks, we've seen the Obama Justice Department make absurdly broad invocations of the state secrets privilege to protect Bush's spying programs from judicial review. We've seen the administration argue that foreign detainees -- as long as they are being held in Afghanistan rather than at Guantanamo -- can be imprisoned indefinitely without formal charges. We've seen how Obama, after staying out of the debate over accountability for torture and other unlawful legacies of the Bush administration, is now, apparently, taking sides by balking at requests from his own top legal advisers to release incriminating memos.

It's getting increasingly hard to reconcile candidate Obama, who eloquently criticized Bush's executive power overreach, with President Obama. This is especially true because his underlings consistently duck questions, leaving it entirely unclear why he's taking the positions he now takes and what, if anything, made him change his views.

So an explanation is called for from the man himself. And since the first 100 days of an administration are so defining, he ought to do it sometime in the next two weeks.

Supporters who put faith in Obama's campaign pledges to restore the nation's moral authority were heartened by his actions on his first and second full days in office. "Transparency and the rule of law will be the touchstones of this presidency," he declared on Jan. 21. On Jan. 22, he banned torture and ordered the eventual closure of Guantanamo.

Some of those same supporters still hope that the administration's more recent actions can be chalked up to bureaucratic inertia and a steep learning curve. Perhaps Obama has a compelling explanation for the evolution of his thinking on these issues. Or perhaps the president, who has on many occasions admitted that he will inevitably make mistakes, could admit he's made some here.

Every day seems to bring more signs of Obama's retreat from his previously stated goals.

Evan Perez and Siobhan Gorman write in the Wall Street Journal today: "The Obama administration is leaning toward keeping secret some graphic details of tactics allowed in Central Intelligence Agency interrogations, despite a push by some top officials to make the information public, according to people familiar with the discussions.

"These people cautioned that President Barack Obama is still reviewing internal arguments over the release of Justice Department memorandums related to CIA interrogations, and how much information will be made public is in flux.

"Among the details in the still-classified memos is approval for a technique in which a prisoner's head could be struck against a wall as long as the head was being held and the force of the blow was controlled by the interrogator, according to people familiar with the memos. Another approved tactic was waterboarding, or simulated drowning."

Astonishingly, Attorney General Eric Holder, White House Counsel Greg Craig, and even Director of National Intelligence Dennis Blair are all lined up in support of disclosure. But Perez and Gorman write: "People familiar with the matter said some senior intelligence advisers to the president raised fears that releasing the two most sensitive memos could cause the Obama administration to be alienated from the CIA's rank and file, as happened during the Bush administration when Porter Goss, who was unpopular among CIA officers, headed the agency."

And get a load of this chutzpah. "Intelligence officials also believe that making the techniques public would give al Qaeda a propaganda tool just as the administration is stepping up its fight against the terrorist group in Afghanistan and Pakistan."

Maybe they should have thought of that a bit earlier.

Scott Shane wrote in the New York Times last week: "The Central Intelligence Agency said Thursday that it would decommission the secret overseas prisons where it subjected Al Qaeda prisoners to brutal interrogation methods, bringing to a symbolic close the most controversial counterterrorism program of the Bush administration.

"But in a statement to employees, the agency's director, Leon E. Panetta, said agency officers who worked in the program 'should not be investigated, let alone punished' because the Justice Department under President George W. Bush had declared their actions legal."

There's an argument to be made that the low-level people who just followed orders shouldn't be punished -- although at some point, the "just following orders" argument doesn't cut it anymore. But what's the argument against simply finding out what happened?

R. Jeffrey Smith wrote in The Washington Post on Saturday that an appeal filed by the Obama administration on Friday "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 there's a chance this position, at least, is temporary. Smith wrote that officials said the appeal "did not foreclose a change of heart after the completion in July of a comprehensive review of detainee policy."

The New York Times editorial board wrote on Monday: "In the absence of a fair review process that complies with international and military law, there is no reason to feel confident that everyone detained at Bagram deserves to be there. The administration should focus on putting such a process in place, instead of wasting its energies in an appeal that simply recycles extravagant claims of executive power and perpetuates the detention policies of the Bush administration."

Greg Sargent reported for Whorunsgov.com last week on the White House's continued refusal to say "whether the Obama administration will support legislation introduced by Senate Democrats that would roll back the use of the 'state secrets privilege."

And Sam Stein now reports for Huffingtonpost.com that even the "Vice President's office is declining to weigh in on a bill that would restrict use of the 'state secrets privilege' by the Department of Justice, despite the fact that, as a senator, Joe Biden co-sponsored that very piece of legislation."

Salon blogger Glenn Greenwald, who has been consistently critical of Obama's backsliding, misses Obama the presidential candidate: "So that Barack Obama -- the one trying to convince Democrats to make him their nominee and then their President -- said that abducting people and imprisoning them without charges was (a) un-American; (b) tyrannical; (c) unnecessary to fight Terrorism; (d) a potent means for stoking anti-Americanism and fueling Terrorism; (e) a means of endangering captured American troops, Americans traveling abroad and Americans generally; and (f) a violent betrayal of core, centuries-old Western principles of justice. But today's Barack Obama, safely ensconced in the White House, fights tooth and nail to preserve his power to do exactly that."

And in another post, Greenwald speculates about motive: "There is, as [House Speaker Nancy] Pelosi said this week, clearly a strong aversion -- one might say 'desperation' -- on the part of the Obama White House to avoid anything that could increase the pressure to commence investigations and prosecutions of Bush crimes....

"Preserving the President's general ability to block lawsuits alleging illegal conduct on the part of the President obviously enables Obama to invoke that power whenever there are allegations that he is breaking the law. The power to abduct people and put them in cages indefinitely without having to answer to anyone about what you're doing -- the power Obama is claiming he possesses in the Bagram case -- is obviously a potent authority that a typical President fighting a 'war' would instinctively want to wield. And Howard Fineman was likely correct when he told [MSNBC's Keith] Olbermann on Tuesday night that Obama is petrified of alienating the permanent intelligence and military establishments in Washington which might be alarmed by any attempt to abandon these vast powers, particularly where reversing course could raise the likelihood of prosecutions.

"Ultimately, though, motives don't matter. Simply put, there is no excuse, justification or mitigation for advocating blatantly unconstitutional and tyrannical powers or claiming that secrecy shields the President from the rule of law."

Right-wing bloggers are taking pleasure in all the consternation from the left. Glenn Reynolds writes for Pajamas Media: "What surprises me is that these people are surprised. It seemed obvious to me that Obama had no real commitment to civil liberties, and that talk to the contrary was just to fool the rubes."

Meanwhile, Jane Sutton writes for Reuters: "A young Guantanamo prisoner from Chad was given permission to telephone a relative but instead called the al Jazeera television network and said he was being beaten and abused at the U.S. detention camp....

"Mohammad el Gharani,...now 21, has been held at Guantanamo for seven years. He was ordered freed by a U.S. district judge in Washington in January, a week before U.S. President Barack Obama took office and ordered the prison operation shut down within a year....

"He told al Jazeera he had been beaten with batons and teargassed by a group of six soldiers wearing protective gear and helmets after refusing to leave his cell.

"'This treatment started about 20 days before Obama came into power, and since then I've been subjected to it almost every day,' he told Al Jazeera.

"'Since Obama took charge he has not shown us that anything will change.'"

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