Obama’s Use of State Secrets Is More of the Same

Throughout his administration, President Bush invoked a little-known and less-understood doctrine called the State Secrets Privilege. The privilege allows the Executive to suppress evidence in a court case if, in the Executive’s estimation, revealing that evidence in court would compromise national security. The use of the privilege is not unprecedented. Bush, however, didn’t merely use the privilege to get evidence thrown out. He tried to have whole cases dismissed. (Please read this article from Lewis & Clark Law Review for more information about the abuse of the State Secrets Privilege.)

In the arena of warrantless wiretapping, the administration argued that it could not provide documentation to plaintiffs that they were wiretapped, since even providing evidence of wiretapping would compromise national security. And, since the plaintiffs can’t prove they were ever wiretapped, they have no standing to bring a case, so the administration also requested that the case be dismissed. Thankfully, Judge Vaughn Walker of the U.S. District Court for the Northern District of California rejected the Bush administration’s assertions.

But now, the Obama administration is in town, and given his memorandum ordering more transparency in government, he’s going to reject the Bush administration’s assertion that entire cases can be thrown out due to the State Secrets Privilege.

Just kidding! In fact, Obama’s Justice Department has gone even further in asserting opacity when it comes to the State Secrets Privilege. On Friday, the Ninth Circuit Court of Appeals rejected the Obama administration’s arguments — which were a continuance of the Bush administration’s arguments — that the State Secrets Privilege can be used to dismiss entire cases.

Immediately following the ruling, Obama’s Justice Department filed a new brief in which it asserted that it will not comply with the Ninth Circuit Court’s ruling because — drumroll, please — no court has the authority to compel the Executive to release top secret information, for any reason whatsoever. In case you think I’m misinterpreting the brief, here you go:

In addition, the relevant Executive Branch official must determine that plaintiffs’ counsel have a “need to know” the information. In this case, the relevant official, the Director of the National Security Agency (“NSA”), has determined that counsel do not have a need to know. This decision is committed to the discretion of the Executive Branch, and is not subject to judicial review. Moreover, the Court does not have independent power, either under its supervisory authority, or under authority analogous to that granted by the Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3, to order the Government to grant counsel access to classified information when the Executive Branch has denied them such access. Therefore, the Government respectfully suggests that the Court should not take further steps at this time that would result in plaintiffs’ counsel being granted access to the classified information at issue.

Any determination made by the Executive that information is top secret is final. It is not subject to judicial review. Ever. At all. Period. What the Executive says, goes. There is no other instance — none! — anywhere in this country where any body has ever asserted that its decisions are outside the scope of judicial review, save legislation passed by Congress restricting review. This is solely Congress’ power, and not the president’s, as articulated in Article III, § 2 of the Constitution:

In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

There is nowhere to be found anywhere in the Constitution the assertion that the president can make decisions that are outside the scope of judicial review. Indeed, the existence of such a rule would be detrimental to our republic. Imagine: the president asserts the State Secrets Privilege for a malicious, disingenuous, non-secret reason, but because the president’s claims of privilege are non-reviewable by anyone, there is no one to appeal to in order to contest the legitimacy of the president’s assertion. If true, this doctrine would mark the first time in the history the United States that a single branch of government cannot be checked by any other branch. This is extremely dangerous.

What will the Obama apologists say now? I have famously complained that Obama’s policies are “more of the same,” whether they be continuances of Clinton-era policies, or Bush-era policies. Which wedge of the Obama Wheel of Apology does this action fall under? Shall we file unilateral executive authority under pragmatism? Or perhaps it is more akin to the I, Claudius explanation, in which Obama will one day pull his mask off and reveal himself to be a progressive socialist who has been working behind the scenes to undermine the system even as he pretends to uphold it? Can this be explained by team of rivals or bipartisanship? What other buzzword that is used to explain away the lack of significant change is appropriate here? Obama can do no wrong!

Okay, coyness aside. The Obama administration has made a bad decision. This is absolutely the wrong assertion to make. And I find it surprising, especially in light of the memorandum mentioned above, that Obama would claim such broad authority in this matter. Unless, of course, the Justice Department is working independently of Obama’s personal agenda, in which case, it’s time for someone to sit down and have a serious talk with Eric Holder about how the Constitution works.

But I seriously doubt this is the result of a rogue Justice Department. No, Obama has made a bad call, here. He is acting terribly like George W. Bush in his assertion of powers that are not his. It doesn’t matter if Obama is a great guy; no one person — not even a “benevolent dictator” — can be invested with such broad powers. It’s illegal, it’s unconstitutional, and given Obama’s background as a constitutional law scholar, he should know better. It’s shameful and he needs to stop it. This is not the change I voted for. (H/T Glenn Greenwald, of course.)

Obama, Mexico, and the Drug War

Remember the War on Drugs? Sure you do. It was after the Cold War and before the War on Terror. It continues to be an attempt to crack down on the illegal drug trade into the U.S. It turned out to be little more than an excuse to continue the Cold War in places like Colombia. It also resulted in new domestic judicial rules such as three-strikes-and-you’re-out, and draconian mandatory minimum sentences for drug offenders, over-crowding prisons with disproportionately minority, nonviolent, first-time offenders in possession of small amounts of drugs.

Since September 11, 2001, we haven’t heard much about the War on Drugs. With the attacks of that day, the threat of religiously and ideologically motivated radical Muslim terrorists immediately became more grave than the crime and violence connected to Latin American (mostly) drug cartels. Our collective focus has been on the threat posed by Islamic terrorism since 2001 and we have largely ignored the growing threat posed by increasingly powerful drug cartels on our southern border.

Last year, drug violence and corruption in Mexico surged, especially in towns and cities along the U.S.-Mexico border. In 2008 over 6,000 people were probably killed – that adds up to over 16 people every day – twice as many as in 2007. Many of these killings were particularly gruesome – beheadings and execution style killings. Drug cartels are suspected of downing a plane, killing Mexico’s Interior Minister, and corruption related to drug trafficking has reached the highest levels. The Sinaloa, Gulf, and Tijuana cartels have infiltrated the judiciary, the police, and political parties. The director of Mexico’s Interpol Office and an employee of the U.S. Drug Enforcement Agency were both arrested for collaborating with cartels. Last spring, the Justice Department declared that Mexican drug cartels pose the “largest threat to both citizens and law enforcement agencies in this country and now have gang members in nearly 200 U.S. cities.” And the U.S. Army High Command has determined that due to the violence, corruption and instability caused by drug trafficking in Mexico, its government, along with Pakistan’s, should “bear consideration for rapid and sudden collapse.” Former Drug Czar Barry McCaffrey recently stated that thanks to drug cartels “Mexico is on the edge of the abyss – it could become a narco-state in the coming decade.” Mexico’s foreign minister has had to defend her government against accusations of its being a failed state.

These are damning statements that President Obama’s incoming administration should not take lightly. While I hope the situation in Mexico and U.S.-Mexican relations will be treated with the seriousness they deserve, Obama has not shared his plans concerning Mexico or the Drug War very openly with the American public. Indeed, he appears to have followed Bush’s lead and has focused his foreign policy sights on – you guessed it – Iraq, Afghanistan, Iran, and other problems in the Middle East. Given our country’s complex and numerous entanglements in the region, this is understandable. But with the drug trade destabilizing our southern neighbor and threatening to cross the border and sow violence, corruption, and instability on U.S. soil it is surely necessary to give our attention to all of these situations, however difficult it may be.

The U.S.-led Drug War has always been deeply flawed and arguably ineffective. The U.S. has always been eager to solve the problem by force – instigating violence in other countries (massive military funding to Colombia, Mexico, etc.) and treating the drug trade in the U.S. as essentially a moral and policing problem that can be solved with a zero tolerance approach and enough cops, guns, and jails. The U.S. has been reluctant to pursue cheaper and more effective ways of battling the drug trade – drug treatment for addicts in the U.S., and development aid for farmers in other countries for example. The War on Terror has pushed the War on Drugs to the back burner, and it has pushed ‘soft’ strategies even further back. It seems we have given up trying to reduce the demand or the supply of illegal drugs in the U.S.

So what exactly does Obama plan to do about the threat posed by illegal drug trafficking? He did not mention Mexico or drugs in his inaugural address, and his public statements since being elected haven’t given many clues. The new whitehouse.gov foreign policy agenda page says nothing about Latin America, preoccupied as it is with Middle East concerns. And as a candidate, Obama said little specific about Latin America or drug trafficking, though at least he mentioned Latin America on his campaign website.

It appears President Obama will not be as hands-off as President Bush when it comes to problems in Latin America. He has indicated a desire for closer and improved relations with Mexico. President-elect Obama was visited by President Felipe Calderon in Washington where they discussed economic issues (including Obama’s campaign pledge to renegotiate NAFTA, something Calderon is opposed to), the environment, immigration, and drug trafficking. Neither man gave many details about their discussion, but Obama has indicated support for the Merida Initiative, passed last June, which commits the U.S. to increasing aid to Mexico for equipment and training to combat organized crime. It does nothing to reduce the U.S. demand for drugs, however.

President Obama also envisions an ambitious new Partnership for the Americas”. In a Miami speech during the campaign he declared:

We need an agenda that advances democracy, security, and opportunity from the bottom up. So my policy will be guided by the simple principle that what’s good for the people of the Americas is good for the United States. That means measuring success not just through agreements among governments, but also through the hopes of the child in the favelas of Rio, the security for the policeman in Mexico City, and the shrinking of the distance between Miami and Havana.

This soaring rhetoric is unfortunately not, as far as I can tell, matched by detailed or original strategies for combating the drug trade along the U.S.-Mexico border. Increased cooperation between the U.S. and other Latin American countries will surely be helpful and appreciated, but in the midst of so many other problems, the U.S. may not have the resources or the political will to see these changes through. Yet there are glimmers of hope – commitments to improve cross border partnerships between U.S. and Mexican states and pledges to increase drug treatment programs in the U.S.

It is also instructive to examine the recent decisions Obama and his inner circle have made regarding the Drug War. As a candidate, Obama promised to end DEA raids on medical marijuana dispensaries in California, but since his assuming office raids have continued. Obama’s staff has said that as soon as new Department of Justice officials are appointed the raids will end, heartening news for those who support medical marijuana laws – and a difficult promise to avoid making good on. Obama does not support legalizing drugs – not surprising for a U.S. president – while at the same time advocating more treatment than incarceration for users, a significant shift from previous presidents. He has suggested ending mandatory minimum sentences for non-violent first-time offenders, and ending a federal ban on funding needle exchange programs reversing years of federal drug policy.

This appears promising, yet Obama’s coterie does not have a history of breaking ranks with the War on Drugs consensus. Joe Biden has been a strong supporter of law enforcement solutions, toughening sentencing rules for drug users, and criminalizing drug use. He played a significant part in creating the position of Drug Czar. He has made more moderate decisions in recent years, but many Drug War opponents remain skeptical of him. Rahm Emanuel has been a vocal supporter of the Drug War, at least when it fits his political agenda, and has a mixed record on issues like medical marijuana. Incoming Attorney General Eric Holder also vigorously supported harsher Drug War policies during his years under President Clinton and as U.S. Attorney for the District of Columbia. Obama’s interim Drug Czar – Ed Jurith, a longtime lawyer for the White House Office of National Drug Control Policy, and former Clinton Drug Czar – has been described as “civil and thoughtful” in the ongoing debate over drug policy though he has by-and-large supported the Drug War. It is rumored that Obama’s permanent Drug Czar pick is Republican Jim Ramstad, who has opposed needle exchange programs, a crucial tool in decreasing the spread of HIV and other fatal diseases amongst addicts. While Drug War opponents may not be thrilled with these selections by Obama, many are taking a wait-and-see approach and acknowledging that these individuals are at least politically open to making policy changes.

And in Mexico? Will Obama put forward drug policies innovative and intelligent enough to effectively curb the violence and corruption flourishing along the U.S.-Mexico border? Will he be able to create a new, smarter mix of drug fighting strategies that reduces the violence and corruption that has accompanied drug trafficking in the U.S. and Mexico? While Mexico and the U.S. border states (dealing with the threat of the same drug-related problems) are committed to effectively managing and limiting, if not stopping, the drug trade, it remains to be seen how committed the Obama administration in far-off Washington will be. Inspirational rhetoric is one thing, but confronting difficult societal problems and defeating organized gangs of unrepentant killers is another – just ask former President Bush.

Obama’s Progressive Street Cred

The selection of Rick Warren for the invocation at Barack Obama’s inauguration is troubling, to say the least. Many progressives are rightly outraged at the selection of a man who is virulently anti-choice and homophobic. Yet, this is only the latest in a series of Obama decisions that has left many progressives wondering who it was, exactly, they voted for. Apparently, “change” looks a lot like the Clinton administration. Rahm Emanuel is back. So is Eric Holder, formerly Deputy Attorney General. Most conspicuous of all, Hillary Clinton will be Secretary of State. A bevy of liberal-but-not-quite-progressive apologists have tried to explain away all of Obama’s decisions. Here is a list of some of their justifications:

• Obama is pursuing Abraham Lincoln’s “team of rivals” approach. Authors of this justification also cite Lyndon Johnson’s phrase: it’s better to keep one’s enemies “on the inside, pissing out” rather than “on the outside, pissing in.” By keeping his enemies in the White House, those enemies are not in Congress or on K Street trying to defeat his plans.
• Remember how we all said for six months that Obama’s qualifications don’t matter? Not so much. As such, he’s surrounding himself with a group of people who have experience working in a presidential administration, and the last Democratic presidency was Bill Clinton’s, so it only makes sense that he would choose people from there.
• Obama is sneakier than he seems (think I, Claudius, I suppose). He’s putting a lot of center-left (and, in some cases, center-right) Washington establishment politicians in key positions to pay lip service to that establishment. Don’t worry, it’s only a front. The real reforms are going to happen, but from behind a veil of mainstream non-reform. That’s the only way he can get things done down there.
• Obama does not want to continue the divisive politics of George W. Bush. Even though it might anger those on the hard left, Obama would rather heal and reconcile than punish.  Turn that cheek!

Some of these justifications are disturbing. The last one, that Obama should be conciliatory instead of punitive, is put forth by people who believe that the crimes of the George W. Bush administration should not be investigated. The country needs to heal, they say. It’s time to get on with the business of the United States, where “business” is defined so as to exclude investigations of the previous administration. Of course, this logic ignores the fact that the law has been broken. As Glenn Greenwald has observed, politicians are more than ready to throw the full force of the law at marijuana dealers, but when it comes to prosecuting their own, politicians are equally ready to be lenient, even though the marijuana dealer harmed no one and the politician may have, oh, I don’t know, been responsible for torture, extraordinary rendition, and warrantless wiretapping at the least. When crimes are committed, they should be investigated and prosecuted – not just for poor people, but for everyone, including politicians. For Barack Obama to suggest that Bush administration criminals should go free is to suggest that politicians live in a special class above the reach of the law. It also encourages more illegal activity in the future, once it is known that the government won’t prosecute those activities.

Furthermore, it’s not even up to Barack Obama to decide what is or is not investigated. The cult of personality surrounding him is great (in fact, it contributed to getting him elected), but even though we like him we must not forget that, as the president, he has constitutional limitations. It was irresponsible for the media to even ask what Barack Obama thought about Joe Lieberman being kicked out of the Democratic caucus. On November 5, Obama’s life as a senator ended, even though he didn’t officially resign the position until three weeks later. The president has absolutely no say – none! – in the operation of Congress. It would be different if Obama were acting in his capacity as a senator, but after winning the presidential election, especially in a nation eager for a new leader, any notion of Obama acting solely in his capacity as a senator would be extremely naïve. Obama must repudiate the unconstitutional powers that George W. Bush has claimed for himself, either through complete fabrication or malicious misreading of constitutional law.

Given his opinion of things like same-sex marriage (he tactfully says that same-sex couples should not be allowed to “marry” as such, but then says that they should have the same rights as heterosexual couples), NAFTA/CAFTA, and Israel, no one could confuse him for a true progressive. Obama’s apologists rationalize his decisions by pointing out that Obama never claimed to be a progressive at all!

Or could they? George W. Bush’s method of saying-without-saying is well-documented. While he never explicitly said that Saddam Hussein was behind the September 11 attacks, there is definitely a reason why, in 2001, virtually no Americans thought Saddam Hussein was responsible, but in 2003, one third of Americans thought Saddam Hussein was responsible.

Could it be that Barack Obama, whose campaign P.R. was spectacular, performed the same saying-but-not-saying function? Yes, it is entirely possible that Obama clothed himself in the cloak of progressivism while still wearing the mainstream Democrat’s clothes underneath. He has suggested massive new spending on entitlement programs, but he wants to increase the size of the military. He wants to let the Bush tax cuts expire, but he voted in favor of retroactive immunity for telecommunications companies that assisted the administration in warrantless wiretapping. His foreign policy goals consist of using real diplomacy instead of threats, but he voted in favor of NAFTA. He wants to provide government health care for people who have no health care, but he stops short of suggesting a universal-payer system like Canada’s or Great Britain’s. Obama’s positions are a wash: for every progressive-sounding idea, there is another conservative-sounding one to balance it out.

Or, on the other hand, it could be that Obama never suggested anything, but that he was forthcoming about his non-progressive credentials. It could be that we, the progressive Americans, were so thirsty for a change that we latched onto the only candidate (outside of Dennis Kucinich) who even brought up the issue of health care reform (at those early Republican primary debates, not a single candidate brought up the issue of health care), social reform, and getting out of Iraq (Hillary Clinton and John Edwards failed on at least one of these). We projected onto him the candidate we wanted him to be, ignoring the fact that he was not that candidate. Did we set ourselves up for disappointment? Yes, that is possible, too.

And then there’s the argument that all this complaining is pointless, that Obama isn’t even the president yet, and we should all just wait and see what happens on Jan. 20. Well, Rick Warren will happen Jan. 20, and that gives me even less optimism that, at noon on that day, Obama will suddenly throw aside his centrist mask and shout, “You fools! You thought I was just like Bill Clinton! But you were wrong! Free health care for everybody!” Agreeing to take part in Warren’s Saddleback (which sounds dangerously like “bareback”) debate with John McCain, Obama could conceivably have been seen as paying lip service to evangelical Protestantism, just like every president since Nixon has had to do. But putting Warren on the bill for Inauguration Day? Imagine if George W. Bush had hired Hillary Clinton to give a speech at his second inauguration. Yeah, it’s like.

Most troubling in my opinion, though, is Obama’s own insistence, ever since March of 2007, when he announced his candidacy, that he is not an ordinary politician. His grassroots, fifty-state strategy was unparalleled in its success. His speech about the Rev. Jeremiah Wright was intelligent and it treated the American people as though they, too, could understand long speeches that contained nuanced thoughts, as opposed to the Manichean sound bites of George W. Bush. His political maturity happened after the Vietnam War era, and, as Andrew Sullivan has suggested, the very core of his being is not instilled with a reflexive fear of Republicans and conservatism.

Conservatism demands the acknowledgment of a false dualism in every aspect of life, with the promise that conservatism will lead people to the correct side of this duality. Democrats buy into this framework and then try to argue the opposite side. The true progressive would never let the Republicans frame the debate and then proceed to work within their ill-conceived framework. To the progressive, there is no debate about whether or not health care should be free, or if there should be a premium for minimum services, or if the government should control it. The answer is: the current system of privatized health care doesn’t work and it should not be repaired, it must be rebuilt from the ground up. Obama appeared unafraid to work outside the existing framework and create a new framework that works in the interests of everyone. “Should it be a public solution or a private solution?” is not the correct question. “What solution is best for the country?” Now that’s the right question. It’s a question that Obama appeared to be asking during the campaign, but one that is being substituted by justifications for increasingly conservative behavior.

The Attorney General and the Unitary Executive

The attorney general’s is a strange office. On the one hand, the AG is appointed by the president (with the advice and consent of the Senate, of course). On the other hand, the AG may be required to defy the president, investigate him, or even indict him for criminal acts. It is this duality of the AG role that has put President Bush and Attorney General Alberto Gonzales into hot water over the past four years. As attorney general, it was Gonzales’ job to investigate wrongdoing; however, as a loyal member of the Bush cadre, investigating the boss would have been a capital no-no. So how does the president get away with such obvious nepotism?

Unitary executive.

The phrase has been bandied about for eight years by liberals who have something of an understanding of what it means. “The president has total power” is what they think it means. And that’s the conclusion that the unitary executive theory results in, but it is not the premise.

The unitary executive begins with the president as the head of the executive branch of government. The executive branch encompasses the president, the vice-president (despite what the current vice-president says), the cabinet departments (like the Department of Homeland Security), and the various agencies within those departments (like the Transportation Safety Administration or Immigration and Customs Enforcement, to use the example of Homeland Security). There are also other myriad agencies like the Office of Management and Budget that live under what is called the Executive Office of the President. So far, so good. We’re not entering unknown waters. Of course this is the structure of the executive branch. It makes sense.

The theory of the unitary executive has always been with us, but it was taken to extremes by lawyers from the ultra-conservative Federalist Society. Some of America’s most conservative jurists, including Justice Antonin Scalia, Almost-Justice Robert Bork, and Chief Justice John Roberts, are or were members of the Federalist Society. This is the group responsible for the bogus interpretive theory called “originalism,” which holds that we can divine the intent of the Founding Fathers from the text of the Constitution, and oh, by the way, the Constitution never changes, except and exclusively through the amendment process. (Originalism’s counterpart is the living Constitution or active liberty, which says that the Constitution’s meanings must necessarily change as society changes, otherwise, the Constitution will find itself irrelevant and unenforceable.)

Under the unitary executive theory, the president has complete and total control over every office of the executive branch. The president should be free to fire whomever he wants, for any reason (or no reason at all), at any time. Furthermore, no executive agency should ever defy the president’s wishes, since all executive agencies are, reducto ad absurdum, the president. The president is the Justice Department. The president is the State Department. The president cannot be in conflict with himself; therefore, cabinet departments and agencies cannot be in conflict with the president’s wishes. This theory has been taken to court by the Justice Department, which held that the Environmental Protection Agency cannot sue the U.S. military, since the president would ultimately be the party on both sides, and the president certainly cannot sue himself!

The unitary executive then goes one step further: it declares that the president’s constitutional requirement to “take Care that the Laws [passed by Congress] be faithfully executed” means that the president’s powers cannot be constrained by Congress, since the president has a duty to execute the laws, and any Congressional hindrance of that duty, in the form of statutory limitations on the president’s power, is unconstitutional.

This is where President Bush’s signing statements come into play. Presidents have always issued signing statements, which are little interpretive blurbs written by the president when he signs a bill into law. The signing statements have, until now, been used to set down guidelines indicating how the president will enforce the particular law.

I say “until now” because Bush has used more signing statements than all other presidents combined, and he has used them most often to indicate that he will selectively ignore the parts of laws that restrict his power. Take this example from the Detainee Treatment Act, which Congress thought was going to be used to reign in Bush’s use of torture:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

In these signing statements, the president has reserved for himself the right to interpret what his constitutional powers are, and in so doing, reserved for himself the right to ignore provisions of laws passed by Congress that he feels are inconsistent with his interpretation of his own powers. This is the unitary executive theory in action (also inaction): whenever Congress attempts to place a check on the president’s power, the president sidesteps Congress, claiming that Congress cannot place any checks on the president’s constitutional duty to enforce the law.

I hope I don’t have to say that this is all highly questionable in terms of constitutionality. The president most certainly does not have the authority, constitutionally or otherwise, to interpret the law. That is the sole responsibility of the judicial branch of government. Chief Justice John Marshall, writing in Marbury v. Madison, put it simply and elegantly 205 years ago: “It is emphatically the province and duty of the judicial department to say what the law is.” No signing statement has ever been taken to federal court, but were that to happen, I can only hope that the court (which would be the D.C. Circuit Court) would refuse to grant the president judicial powers just like it refused to grant President Clinton legislative powers when he tried to use the line-item veto.

Back now to the attorney general. The next attorney general, who may very well be former Deputy Attorney General Eric Holder, knows what his role as AG would be. We know that he’s independent, meaning that, unlike Alberto Gonzales, he does not owe his entire career to the president. We know that he acknowledges that the AG is a unique office that, at times, requires “a closeness at the same time there needs to be distance.”

As Glenn Greenwald reports, though, Holder made some comments after the September 11, 2001 attacks that people who voted for Change should find disturbing. Of the inmates at the Guantanamo Bay prison, he said, “It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war.” Even the U.S. Supreme Court eventually recognized that prisoners at Guantanamo Bay were entitled to Geneva Convention protections.

Is there no one out there who has a more progressive view of indefinite detentions? The Constitution is quite clear: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” And yet there are still people out there — lots of them, apparently, all in positions of power — who believe that there’s nothing wrong with a little indefinite detention among friends.

Is this the change we voted for?

Cabinet Rundown: AG, DHS, and HHS

With the exception of the Hillary-Clinton-for-Secretary-of-State flirt tease, the rest of President-elect Obama’s cabinet is starting to take shape. Here’s a look at three of those who have been tapped so far (some pending a background check):

Attorney General–Eric Holder, 57, New York

Eric Holder will become the first African American Attorney General in United States history. He was a deputy attorney general and U.S. Attorney for the District of Columbia during the Clinton administration and teamed with Caroline Kennedy as the lead vetter of Obama’s potential vice presidential selections. Holder seems to be a solid, non-controversial choice. He will certainly have a tough job ahead of him as the various abuses of the past eight years come to light. Hopefully, Mr. Holder can restore some credibility to the job of  top law enforcer. The funny thing about the attorney general position is that this was John Edward’s job for the taking if he would have kept his zipper up. Ah well, he can take solace with Bill I suppose.

Grade: B

Secretary of Homeland Security–Janet Napolitano, 50, Arizona

Governor Napolitano is immensely popular in Arizona and will become only the third secretary in the brief history of the department of Homeland Security. Before serving as governor of Arizona (she is now in her second term), she was a United States District Attorney for Arizona and was Arizona Secretary of State.  Napolitano is Obama’s first high-profile female selection (Hillary is not official yet). It is likely that both the Secretary of State and the Secretary of Homeland Security will be women.  The one downside to this move for Democrats is that Governor Napolitano was polling strongly in a potential Senate matchup with Senator McCain in 2010. McCain has given initial indication that he plans to run for reelection.

Grade: B+

Secretary of Health and Human Services–Tom Daschle, 60, South Dakota

Tom Daschle is a great selection for this post. I wrote a lot about this selection yesterday.

Grade: A