Decoding Obama Law

Judging by his campaign rhetoric, President Obama's national security legal doctrine -- call it the Obama Doctrine -- would appear to be a model of restraint, where the powers of the executive are checked by a transparent screen and obsequious Congressional oversight.

Seventy days in, however, we know very little about how Obama the President thinks. We can judge him by his actions; in response to a flurry of pre-cooked court decisions, Obama's national security lawyers have been very active.

So far, the administration has thrice sustained the Bush administration's claim of the State Secrets Privilege in urging civil suits against Bush administration officials to be quashed. It has refused several entreaties from judges to re-argue points of law first used by the Bush administration. It has used a signing statement to affirm the right of the federal government to fire whistleblowers. It has treated as secret a draft version of an Internet Protocol treaty, leading Wired magazine to morph Obama's photograph into Bush's.

Obama was inaugurated after a cascade of court rulings and Congressional actions that limited the authority of the executive branch and created a patchwork of rules, laws and precedents. Some of the harder questions have been dealt with, from torture to secrecy issues related to detainee politics to the habeas rights of all Guantanamo detainees and most other detainees held elsewhere.

Obama has ordered a review of the status of every Gitmo detainee. Most of their cases will be disposed of quite easily; Yemen is already building facilities -- detainee halfway houses -- to accept, re-educate and release dozens of them. Other countries are willing to repatriate many of the several hundred who remain in custody.

There are currently 14 "high value" detainees in U.S. custody, and those adjudications will be quite difficult to complete without harming someone's interest -- the rule of law, the safety of the country, the personal safety of the detainee, the sovereignty of other countries.

Likewise, Obama has ordered his attorney general to review all 23 Bush era assertions of the state secrets privilege. Administration officials say they're in a bind. The fate of most of the cases hinge on the successful application of the privilege, and so in deciding to retract the privilege, the administration fears it will set a precedent that will weaken what President Obama believes is a lawful extension of the executive's authority to protect national security information.

Administration officials say that Obama wants to find a case where he can retract the privilege without harming the privilege.

For the true predictors of what an Obama national security doctrine will look like, we'll have to wait a while. Three contentious provisions of the Patriot Act expire at the end of 2009 as does the Congressional authorization for the NSA's domestic surveillance program. Obama's own sympathies lie with civil libertarians, but he has incorporated the experience of his advisers, most of whom are arguing for a less obvious balance between security and liberty. Obama's counterterrorism adviser, John O. Brennan, knows more about the NSA program than anyone in Obama's inner circle, and while not privy to the Bush administration's secret debate over its legality, he is said to believe that the program worked.

So while detainee issues remain flashy, I don't think the Obama administration will be challenged by too many new cases outside of the current Gitmo/Bagram population. Obama doesn't want to capture the bad guys who are out there; he wants to kill them, and he has the means and authority to do that. Whatever Obama's detainee policy will be once it's fully fleshed out, I doubt it will be strained by lots of new high profile captures.