Executive Privilege

The removal of General Stanley McChrystal from command provided President Barack Obama with the perfect opportunity to review the entire Afghan war strategy and declare it a failure.  That he did not do so means that the war now belongs fully to the president and he, in typical Washington fashion, will insist on something that he can describe as "mission accomplished."  The fighting will continue until Washington runs out of money and soldiers and is forced to craft together a phony peace settlement before leaving with its tail between its legs.  The whole world knows that United States foreign policy has become little more than a pathetic joke, a fact that is also becoming increasingly clear to many Americans who do not live inside the Washington beltway bubble.

Even if the long war finally ends some day, there will be no revival of the liberties enshrined in the United States constitution and the protections afforded by the rule of law.  This will be the most enduring legacy of George W. Bush and Barack Obama.  It hasn't mattered which party has been in power, the objective of both has been to establish an all powerful executive that can operate without any constitutional restraints.  Since 2001, the creation of just such a central authority, fueled by an exaggerated fear of terrorism, has led to the dismantling of many of the freedoms that Americans enjoyed for over two hundred years.

President Barack Obama promised more openness and accountability in government but he has not delivered.  He has failed to abolish or significantly amend the Patriot Acts and the Military Commissions Act, which together make it possible to detain anyone indefinitely based only on suspicion. Obama's Justice Department has defended the government's use of the state secrets privilege to avoid having to deal with pesky lawsuits from civil libertarians and whistle blowers.  The Obama White House is, as a result, just as secretive as that of his predecessor.  And all indications are that it will only get worse as the Supreme Court slides to the right on the issue of executive authority.

New Supreme Court nominee Elena Kagan has described retired Israeli Judge Aharon Barak as her "judicial hero."  Barak is sometimes described as a liberal, but a review of his decisions reveals that he has always sided with the Israeli government in cases where arbitrary behavior by the state was being challenged.  He also established the legal guidelines that enabled torture by the Israeli authorities.  Kagan herself is of a like mind, favoring government prerogatives, executive privilege and secrecy even when there is no clear legal reason to deny access to information.  In one recent case Kagan successfully argued that the Supreme Court should overturn a New York appeals court ruling to permit the release of photographs of foreign prisoners being abused by their American captors. The American Civil Liberties Union argued for the release of the photos while Obama and the Pentagon against. Kagan, in her role as solicitor general, argued that US military personnel would be endangered if the photos were to become public.

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