During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.
“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.
“No, your honor,” Mr. Letter replied.
Judge Schroeder asked, “The change in administration has no bearing?”
Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.
James Joyner collects some outrage here, David Luban writes here.
We should separate out two levels of response, on the level of politics, and then the level of principle. As a political matter, nothing is remotely surprising about this. The people who are now making policy for Obama on this topic are, by and large, the same people who made policy for Clinton, and it was under his watch that most of these policies began. The logic of executive power is playing its role, too: note the shift between applying each principle in all possible cases and the language of individualized response to particular cases. It's not the power that's bad (no one who ever gets power thinks that it's bad), it's that the uses to which that power has been put that are objectionable. But we, unlike those who came before us, will judge these things aright as they are--and who could object to applying a policy in cases where it should apply?
On the level of principle, things become murky. In Luban's argument, for instance, I cannot quite sort out whether he objects to the application of state secrets in this case, or just in general. The argument against their use in general is unlikely to bear much weight: I can easily imagine instances where the state-secret protection might be useful. Perhaps this is wrong as a general orientation, but the task of those who would oppose it is to show exactly where, and why, what I am inclined to believe is wrong. If the argument is intended to be against the use or continuation of the argument in this specific case, then the level of outrage appears to be misapplied (I find this to be the most persuasive explanation; I suspect most of the reaction has to do with continuing a Bush policy and not the merits of the policy itself). The strongest argument available is to note the general concentration of power in the hands of the (read: any) administration; then one argues not against the intended effects of the policy, but against the manner in which it is enacted--and this is more likely to be effective.
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