Did Obama Change The National Security Paradigm Today?

By Marc Ambinder

In the annals of the Obama administration's reinterpretation of national security law, how important were today's two pronouncements?

One decision seems to perpetuate the status quo; the administration endorsed the Bush-era decision to ask that a lawsuit filed by a detainee against former Secretary of Defense Donald Rumsfeld be thrown out.  (The Washington Independent calls it "another move that suggests the Obama Department of Justice is not making many big policy breaks with its predecessor when it comes to the legal rights of Guantanamo detainees.")  For those who want the administration to rapidly hold the Bush administration accountable for the actions of its officials, this is a step back.  Citing circuit precedent, Obama agreed with Bush that public officials ought to have immunity for the consequences of decisions that were legal at the time.  The Bush folks went further, asserting that detainees couldn't sue the government itself because they had no habeas rights. Obama's lawyers don't dispute the right for Gitmo detainees to sue the government itself -- a big difference; they have not foreclosed upon the possibility of government redress for detainees found to be wrongly held, either. But no major paradigm change here.  

The other policy change today marks the beginning of a fairly dramatic departure from Bush administration's policy. Unlike President Bush, President Obama does not believe that the executive branch has the inherent authority to detain battlefield captives; indeed, according to the administration, Congress can authorize this exercise of power. The motion today does not preclude the executive branch from claiming some sort of power, too. Indeed, by limiting its scope to Guantanamo, it preserves (for now) the Bush administration's assertion of executive authority when it comes to detainees held elsewhere.

That question is under formal review -- but a Justice Department official acknowledged that it would be quite discordant if the administration were to suddenly reclaim the majority of the power that today it relinquished.

Bottom line: in the future, Congress and the president will determine the scope of executive detention authority. And -- and -- those detainees will get their cases heard in court.

This article available online at:

http://www.theatlantic.com/politics/archive/2009/03/did-obama-change-the-national-security-paradigm-today/1513/