Wednesday, March 4, 2009

Completely Unrelated To Mickey Kaus Blogging

Glenn Greenwald describing the Al-Haramin case:

Obama defenders take note: ... Obama lawyers have been running around for weeks attempting one desperate, extreme measure after the next to prevent this case from proceeding -- emergency appeals, requests for stays, and every time they lose, threats of still further appeals, this time to the U.S. Supreme Court.

During the controversy in the Jeppesen/rendition case, there were actually "defend-Obama-at-all-costs" advocates in the comment section offering the painfully ludicrous excuse that Obama only embraced Bush's State Secrets theory because Obama secretly hoped and expected to lose the case and thus create good judicial precedent. But in the Al-Haramin case, the Obama DOJ has now lost -- twice -- in their attempts to invoke secrecy to stop this case from proceeding, but they just keep searching for a court to accept their claims ...

Greenwald describing the Al-Marri case, in the same post:

[W]hether this is a positive step in a general sense is a different question. In the Jose Padilla case, the Bush administration kept a U.S. citizen in a cage for many years without charges of any kind, and then suddenly filed criminal charges against him right as the Supreme Court was set to rule on the constitutionality of imprisoning U.S. citizens as "enemy combatants" with no trial. Once they finally indicted Padilla, the Bush administration ran and argued that the indictment rendered the questions before the Court moot. The Supreme Court, in essence, agreed and refused to hear the appeal, thus leaving in place the Fourth Circuit's affirmation that the President has this power.

If that is what the Obama DOJ does here -- namely, if it succeeds in its efforts to convince the Supreme Court not to rule on this critical matter because, yet again, the individual who has been encaged for years without charges was, at the last minute, transferred to a civilian court (thus leaving standing the Fourth Circuit's horrendous ruling) -- that will be destructive for all the reasons that Bush critics cited when the same thing was done in the Padilla case.

In conclusion, the Obama administration shouldn't actively pursue an appeal that could get a terrible legal theory decisively defeated, except when they should.