The day they took office the Obama administration had a legal problem. In fact they had several, left behind by their predecessors. These problems did not grow out of the rule of law, but outside of the rule of law. All of the current shocking news about the Bush administration is the result of revelations of law breaking. The Geneva Conventions were ignored, Americans were spied upon without a court order, and prisoners were kept in custody for years without charges being filed. And they were tortured. All kinds of government materials were classified that were embarrassing but not secret, and Congress was not kept legally informed for its oversight purposes. The U.S. military was prepared to act against its own countrymen. Our personal phone calls, e-mails, medical and financial records were surveilled by mass means, illegally and without privacy protection.
Rather early on President Obama and Attorney General Holder reaffirmed that no one is above the law. For that reason, the Obama lawyers must not give undue weight to the Bush lawyers' extra-legal opinions and the positions of his Office of Legal Counsel should not be assumed to have legal standing.
Claiming state secrets, over classification of materials, threats to national security, warrantless wiretapping, can never trump the rule of law coming solidly out of the Constitution. This is where the three co-equal branches of government come in. Here are some simple examples:
Duly sworn judges have the right to rule on evidence. They have security clearances, in effect. Duly elected members of the legislature have the right to practice oversight of the executive branch's execution of the laws passed by Congress. They also have security clearances in effect. Disagreements go to court to be adjudicated. Neither the executive branch nor the courts make laws. Courts interpret the laws. Legislators ratify U.S. treaties into international law. The Fourth Amendment protects people from unreasonable search or seizure, and limits what the military can do within the U.S. Bill of Rights civil liberties cannot be permanently abridged by mere executive fiat.
Lawyers in the current administration who come out with legal arguments in adherence to a number of Bush positions are on shaky ground. Protecting Executive power prerogatives is not a good enough argument when those Executive powers are clearly not legal. This means that today's lawyers and courts must look to the experts and go further back to find precedents that are on solid ground. The Justice Department's move to try a detainee on formal legal charges is the kind of legal decision making that is a step in the right direction.
See also Behind the Links, for further info on this subject.
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