THE BLOG

Moving Away from a Rogue State

04/17/2009 05:12 am ET | Updated May 25, 2011

Friday's decision by the Justice Department that the Obama administration has the right to detain enemies during wartime, and without charging them, comes as a disappointment to those who expect carte blanche change, and especially to those who have yet learned how to read the fine print.

For the first time in more than a decade, the fine print actually works in favor of those who want an executive branch that appreciates the fundamental value of separation of powers.

Importantly, apart from doing away with the label "enemy combatant" which, as you recall, was coined not by the executive branch, but by a former defense secretary, Donald Rumsfeld, Justice now says that the power to hold detainees must come from Congress and international law, not from the exercise of wartime power under the presidency.

Implicitly, then, the infrastructure for inflated power of the executive branch, the so-called "unitary presidency," used by Bush and Cheney to justify deconstructing the Constitution, is being slowly laid to rest.

While, in their court filing, government lawyers asserted the president's right to detain suspects at Guantanamo Bay without charges which isn't, on face value, radically different from the position taken by Mr. Obama's predecessor, it must be noted that the new administration's emphasis on international law, and a greater role for Congress, is a dramatic departure.

More importantly, there will no longer be a blanket policy toward detainees, but as government lawyers acknowledge the "particular facts and circumstances justifying detention will vary from case to case," so we're moving out of the realm of absolutes like "axis of evil," and "terror," and back to a place where individual cases will determine course of action.

We can't afford to forget, as journalist Seymour Hersh recently asserted, an assassination squad reported directly to Dick Cheney. An article in last week's New York Times acknowledges the existence of Joint Special Operations Command which is an independent wing of a special operations unit, according to Hersh, one that doesn't "report to anybody, except in the Bush-Cheney days, they reported directly to the Cheney office," and which is not subject to congressional oversight.

And, to add insult to injury, Cheney appeared on CNN Sunday morning to call his administration's use of "enhanced alternative" interrogation techniques "absolutely essential" to stopping future 9/11s. Too bad he wasn't asked if he didn't think clandestine assassination squads even more effective?

Moreover, under Bush-Cheney, checks and balances referred more to personal banking methods than governance. Under Obama, we may expect, once again, to see separation of powers. Isn't it reassuring to think we're witnessing a return to the rule of law, and away from executive lawlessness, even if it isn't happening fast enough for some of us.

While avoiding terms like "war on terror," and "enemy combatant," may not appear to be a sweeping changes, that our new president is now pressing for more congressional involvement, as well as adherence to international law, is positively revolutionary in light of what preceded him.

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