Why Are Obama Lawyers Sticking to the Same Positions as Bush's DOJ?

Posted by Liliana Segura, AlterNet at 11:55 AM on March 6, 2009.

Investigative reporting website ProPublica has been tracking the lawsuits brought forth against Bush's national security apparatus and, this week, it published its findings thus far. The good news is that it is all put together in a handy chart. The bad news: "In a half-dozen national security lawsuits … the Obama administration has so far largely stuck by the positions taken by the Bush administration."

"These decisions may be a temporary fix that will buy the administration time to think through its views," writes Christopher Weaver. "Or, it could indicate that the new administration simply doesn't want to be squeezed into making policy in the court room."

Among the cases is a habeas petition filed on behalf of four prisoners at Bagram Air Base, in which, last month, lawyers for the Obama administration denied them the right to challenge their detention (a right granted to prisoners at Guantanamo last year). "Having considered the matter," Obama's Department of Justice lawyers said, "the Government adheres to its previously articulated position."

"That position," according to ProPublica, "includes the concept of a global battlefield that would allow indefinite detention of prisoners like the petitioners, who say they were picked up outside Afghanistan, far from any traditional battlefield."

Other important cases include a National Security lawsuit into the the Bush administration's "lost" e-mails (Obama's DOJ is trying have the case thrown out) and the ACLU-led civil suit on behalf of five victims of extraordinary rendition against Boeing subsidiary Jeppesen DataPlan Inc. (Obama lawyers stuck to the Bush tactic of asserting the government's "state secrets" privilege in order to block the suit).

While it is distressing that the Obama administration has thus far fallen in lock-step behind some of the most worst obfuscation tactics of the Bush DOJ, one notable exception was its recent decision to file criminal charges against Ali Saleh Kahlah al-Marri, the sole remaining U.S.-based "enemy combatant" who has been held in a naval brig in Charleston, South Carolina without charge for years. (Bush's famous legal memos "assert the president's total control over military operations, even domestically.") Today, the Supreme Court vacated a lower court decision giving the president the power to indefinitely detain U.S. citizens or residents without charge or trial.

Jonathan Hafetz, a staff attorney with the ACLU, which brought the case, said in a press release Friday:

"While we would have preferred a Supreme Court ruling that U.S. citizens and lawful residents detained in the U.S. cannot be held in military custody as 'enemy combatants' without charges or trial, the Supreme Court nonetheless took an important step today by vacating a lower court decision that had upheld the Bush administration's authority to designate al-Marri as an 'enemy combatant.' Congress never granted the president that authority and the Constitution does not permit it. We trust that the Obama administration will not repeat the abuses of the Bush administration having now chosen to prosecute Mr. al-Marri in federal court rather than defend the Bush administration's actions in this case."

To see ProPublica's national security case chart, go here.

Tagged as: torture, obama, supreme court, rendition, aclu, doj, department of justice, ali saleh kahlah al-marri, indefinite detention, propublica

Liliana Segura is a staff writer and editor of AlterNet's Rights and Liberties and War on Iraq Special Coverage.