Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

March 3, 2009

Meet The New Unitary Executive, Same As The Old Unitary Executive

by Doug Mataconis

The Obama Administration is adopting some of the same legal theories that President Bush used to enhance the powers of the Presidency:

A federal appeals court rejected the Obama administration’s attempt Friday to stop a judge in San Francisco from reviewing a challenge to the wiretapping program ordered by former President George W. Bush.

Hours later, President Obama’s Justice Department filed papers that appeared to defy the judge’s order to allow lawyers for an Islamic organization to see a classified surveillance document at the heart of the case. The department said the judge had no power to enforce such an order.

As Glenn Greenwald notes, in doing so the Obama Administration is adopting the same legal arguments that the Bush Administration was criticized for:

[The Obama Administration is arguing that] there is only one branch with the power to decide if these documents can be used in this Article III court proceeding: The Executive. What the President decides is final. His decision is unreviewable. It’s beyond the reach of the law. No court has the authority to second-guess it or to direct the President to comply with a disclosure order. That’s the mentality — and even the language — drawn directly from the earliest Yoo Memorandum that created the theoretical foundation for what would be the omnipotent presidency:

Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

In the context in which Obama is now invoking this theory, think about what it means: if, as happened here, the President breaks the law, then he can just label the relevant evidence “classified” and refuse to turn it over to a court which is attempting to rule on the legality of the President’s actions. Once the President decrees that a court is barred from reviewing the relevant evidence because the President claims it is “classified,” that’s the end of that. It’s irrelevant that courts rule that the documents should be usable or even that Congress has created all sorts of mechanisms to enable federal courts to use classified information in judicial proceedings

Apparently, it’s okay now that a Democrat is doing it.

Change we can believe in !

H/T: The Crossed Pond

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  • Merf

    Um, you didn’t actually think there would be a change, did you?

    At the state of 2012, we will still be in Iraq, torture will still be in use, and Gitmo will still be open. And we will still have the Patriot Act.

    The Who wrote a song about this, didn’t they? Meet the new boos, same as the old boss? And something about getting down on our knees and praying that we don’t get fooled again?

    Nothing, of course, about researching the candidate.

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