Obama and Executive Power: How's that Hope and Change Working Out?


It's been a rough few weeks for President Barack Obama's liberal supporters. Last week, former Bush administration legal official and notorious "torture memo" author John Yoo endorsed Obama's undeclared war on Libya as a perfectly acceptable exercise of presidential power. Now, as Radley Balko noted in today's morning links, the Obama administration has reversed itself and announced it will no longer try 9/11 mastermind Khalid Sheikh Mohammed in federal court but will instead give him a military trial at Guantanamo. Writing at Slate, liberal legal commentator Dahlia Lithwick gives voice to the outrage of countless betrayed Obama voters:

In reversing one of its last principled positions—that American courts are sufficiently nimble, fair, and transparent to try Mohammed and his confederates—the administration surrendered to the bullying, fear-mongering, and demagoguery of those seeking to create two separate kinds of American law. This isn't just about the administration allowing itself to be bullied out of its commitment to the rule of law. It's about the president and his Justice Department conceding that the system of justice in the United States will have multiple tiers—first-class law for some and junk law for others….

Say what you want about how Congress forced Obama's hand today by making it all but impossible to try the 9/11 conspirators in regular Article III courts. The only lesson learned is that Obama's hand can be forced. That there is no principle he can't be bullied into abandoning. In the future, when seeking to pass laws that treat different people differently for purely political reasons, Congress need only fear-monger and fabricate to get the president to cave. Nobody claims that this was a legal decision. It was a political triumph or loss, depending on your viewpoint. The rule of law is an afterthought, either way.