In an extraordinarily well-researched and well-written review of the way the Obama Administration conducts detention policy, Charlie Savage details the behind-the-scenes debates over how to define the legal status of present and potential detainees. The Bush Administration took an easily-formulated hard line position on these and other Executive power issues, simply claiming a broad Article II power, with a little AUMF justification thrown in, to detain whomever they pleased in whatever way felt necessary.
The Obama Justice Department is being led by individuals who made no secret of their disagreement with the Bush policy. But, once in office, they're finding the issue to be significantly more difficult to resolve when there are national security considerations that must balance their views on the law.
Even if, as Mr. Savage quotes a former Bush lawyer as saying, the changes made by the Obama Administration are largely about tone rather than substance, they still mark an important shift. Even in the context of a legal system dominated by judicial review, what the Executive says about its powers matters.
What this article reveals more than anything else, though, is the application of thoughtful consideration to these pressing national security concerns. It's surely easier to just ask John Yoo to draft a memorandum outlining the government's position on detention and torture and just accept the result as Administration policy. The result, however, isn't the kind of legal framework that America should have when it conducts something as fraught and delicate as detention policy in the context of a war against a shadowy network of combatants without flag or uniform.
Even if your politics lead you to disagree with the result, it can't be defensibly argued that the improvements in procedure aren't a good thing. A considered approach is more likely to stand the test of time, and to survive review by the courts, and I for one would rather live under a government that thinks before it acts.
The Obama Justice Department is being led by individuals who made no secret of their disagreement with the Bush policy. But, once in office, they're finding the issue to be significantly more difficult to resolve when there are national security considerations that must balance their views on the law.
Even if, as Mr. Savage quotes a former Bush lawyer as saying, the changes made by the Obama Administration are largely about tone rather than substance, they still mark an important shift. Even in the context of a legal system dominated by judicial review, what the Executive says about its powers matters.
What this article reveals more than anything else, though, is the application of thoughtful consideration to these pressing national security concerns. It's surely easier to just ask John Yoo to draft a memorandum outlining the government's position on detention and torture and just accept the result as Administration policy. The result, however, isn't the kind of legal framework that America should have when it conducts something as fraught and delicate as detention policy in the context of a war against a shadowy network of combatants without flag or uniform.
Even if your politics lead you to disagree with the result, it can't be defensibly argued that the improvements in procedure aren't a good thing. A considered approach is more likely to stand the test of time, and to survive review by the courts, and I for one would rather live under a government that thinks before it acts.
— C.
