There have been a couple of actions taken by the Obama Administration that have left people scratching their heads. The first occurred soon after taking office when his Justice Department, instead of doing as everyone thought that they would and not continuing Bush’s State Secrets claims, instead pushed the idea of State Secrets even further than Bush’s lawyers ever went. Another occurred today with Obama reversing course on the lawsuit to release photos of Army’s abuses of prisoners. The Justice Dept had initially stated that it would not seek further appeals in blocking the photos release. However, today they pulled a 180 saying that they would indeed appeal the release.
Of course all of the talking heads on the news outlets talked about how this a complete reversal of policy by the Obama administration and that the transparency is gone. I’ve got a bit of a different opinion as to what’s going on though. Obama is a trained lawyer, married to a lawyer, and definitely believes in the rule of law. One of the things about the law is that it’s based in large part on previous case precedents. So given the facts of a case, you can predict with some degree of certainty how a judge will rule. I believe that Obama may be using the courts to appear to be a bit more of a centrist than he really wants to be.
With the State Secrets case, I’m fairly certain that he didn’t want to carry it forward. The problem was that by immediately reversing all of Bush’s policies he could lose the right half of the political spectrum. But if he pretends to take a tough stance on certain aspects, but has his lawyers push for an over the top result, that they know they’ll never get and will be thrown out by any judge, then it’s not him being weak, it’s the judges that the right already dislikes. So Obama scores political points, appears to be a centrist, even though he gets exactly what he wants.
With todays decision, the talking news heads kept going on as if this decision was up to Obama. What everyone seems to forget is that it’s a lawsuit in the courts and that Obama has no real power to influence the outcome. All he can do is to let the Justice Dept know that he would like them to continue with the appeals process. The case has already been ruled on by a judge and there’s no evidence that the government will win on appeal. But Obama scores all sorts of points with the military and can counter Cheney’s attacks that he’s releasing damning evidence of the Bush Administration’s wrong doing. Because it’s now not him releasing the photos, it’ll be the courts deciding that he must. I’m sure the Justice Dept lawyers have looked at the case and can be fairly certain what the outcome will be. But Obama gets to have it both ways with this strategy.
If this is indeed what he’s doing I’m not sure how I feel about it. In one sense it reinforces the rule of law, but it would also be using the court system as a political tool.