Chart: Obama Tracks Bush on National Security Cases

by Christopher Weaver, ProPublica - March 3, 2009 9:00 am EST

In a half-dozen national security lawsuits we've been following, the Obama administration has so far largely stuck by the positions taken by the Bush administration. (The one significant exception has been the recent decision to file criminal charges against the only remaining U.S.-based "enemy combatant.")

These decisions may be a temporary fix that will buy the administration time to think through its views. Or, it could indicate that the new administration simply doesn't want to be squeezed into making policy in the court room.

We've decided to lay out the relevant cases, so you can see the positions on your own. If you know of more national security suits that belong on the watch list, let us know.


President George Bush	President Barack Obama
The habeas petition of four Bagram Air Base detainees
The Bush position: Four detainees at the prison in Afghanistan asked a federal judge to determine whether they have the right to challenge their detention in a civilian court, like their counterparts at Guantanamo Bay. The judge gave the new administration (PDF) an extra month to decide whether it would back the Bush administration's argument for dismissing the case.	Where Obama stands: Obama administration lawyersreplied (PDF) last Friday: "Having considered the matter, the Government adheres to its previously articulated position." That position includes the concept of a global battlefield that would allow indefinite detention of prisoners like the petitioners, who say they were picked up outside Afghanistan, far from any traditional battlefield.
The deleted Bush e-mails
The Bush position: President Bush's inner circle "lost" untold millions of e-mails that they were required to preserve as presidential records. The mysterious absence was discovered by prosecutors during the Valerie Plame leak scandal. The nonprofit National Security Archive sued the administration after they refused to recover an unknown number of the e-mails.	Where Obama stands: On Obama's first full day in office, he issued a memo to his entire administration proposing an "unprecedented level of openness." That same day, Justice Department lawyers moved to dismiss the case. The National Security Archive appealed last week.
Detainees' civil suit against a Boeing subsidiary
The Bush position: Five former detainees sued Jeppesen DataPlan Inc., a Boeing subsidiary, over its involvement in helping the CIA transport them to overseas prisons, where they say they were tortured. The Bush administration asserted the state secrets privilege in the case last year, saying that if the suit were permitted to go forward, it would undermine national security. It was dismissed.	Where Obama stands: When the detainees appealed earlier this month, Obama's Justice Department stuck to that line. The Los Angeles Timesreported, "The Obama administration [took] 'exactly' the same position as the previous White House..."
Islamic charity's suit over warrantless wiretapping
The Bush position: The Oregon chapter of Al-Haramain Islamic Foundation, a charity that made the Treasury Department's watch list of terror supporters, sued the Bush administration for eavesdropping on private conversations without a warrant. Documents that revealed the wiretapping were accidentally sent to the charity; the Bush administration said they were "state secrets" and sought to block the suit.	Where Obama stands: The Obama administration has so far taken the same stance as the Bush administration. Last month, administration lawyers filed an emergency motion to block the case, arguing that evidence in the lawsuit would reveal damaging national security secrets. A court last week denied that request, and though the Justice Department could appeal the ruling, the suit is now poised to go forward.
The interrogation of a now-free British resident
The Bush position: The British and U.S. governments possess documents describing the allegedly abusive interrogation of recently released Gitmo detainee Binyam Mohamed, who is British. Mohamed's lawyers have sought the disclosure of the documents, but officials from both countries have repeatedly blocked disclosure, citing national security risks.	Where Obama stands: The White House commended British authorities in a written statement on Feb. 4 for keeping the documents secret, thanking the British government for "its continued commitment to protect sensitive national security information and preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens." Mohamed was released from Gitmo this week, but his lawyers will continue to seek the documents.
Secret CIA detention and interrogation memos
The Bush position: In this FOIA lawsuit, the ACLU seeks documents describing the CIA's interrogation and detention practices. The Bush administration argued against disclosing the documents (PDF), because information about those practices would allow al-Qaida and other enemies to develop ways to resist interrogation methods.	Where Obama stands: The new administration hasn't weighed in yet, and the CIA has declined to comment on the case. Lawyers at the ACLU said in their appeal (PDF) this month that the government's argument against disclosure is now defunct because the Obama administration has limited the CIA's authorized techniques to those already published in the unclassified Army Field Manual.
The detention of an enemy combatant on U.S. soil
The Bush position: Ali Saleh Kahlah al-Marri was detained in Peoria, Ill., in 2001, and has been held in a naval brig in Charleston, S.C., without charges. Bush legal memos assert the president's total control over military operations, even domestically. In December, the Supreme Court accepted al-Marri's case, which would test a key part of that assertion, the military detention of U.S. residents.	Where Obama stands: The Obama administration made a clear break with the Bush position last week, charging al-Marri for conspiracy in a civilian court. The administration's decision to charge al-Marri does not, however, articulate its stance on the question of the president's domestic detention authority. Al-Marri's lawyers said they will still press to have the case heard by the Supreme Court.

President George Bush

President Barack Obama

The habeas petition of four Bagram Air Base detainees

The Bush position:

Four detainees at the prison in Afghanistan asked a federal judge to determine whether they have the right to challenge their detention in a civilian court, like their counterparts at Guantanamo Bay. The judge gave the new administration (PDF) an extra month to decide whether it would back the Bush administration's argument for dismissing the case.

Where Obama stands:

Obama administration lawyersreplied (PDF) last Friday: "Having considered the matter, the Government adheres to its previously articulated position." That position includes the concept of a global battlefield that would allow indefinite detention of prisoners like the petitioners, who say they were picked up outside Afghanistan, far from any traditional battlefield.

The deleted Bush e-mails

The Bush position:

President Bush's inner circle "lost" untold millions of e-mails that they were required to preserve as presidential records. The mysterious absence was discovered by prosecutors during the Valerie Plame leak scandal. The nonprofit National Security Archive sued the administration after they refused to recover an unknown number of the e-mails.

Where Obama stands:

On Obama's first full day in office, he issued a memo to his entire administration proposing an "unprecedented level of openness." That same day, Justice Department lawyers moved to dismiss the case. The National Security Archive appealed last week.

Detainees' civil suit against a Boeing subsidiary

The Bush position:

Five former detainees sued Jeppesen DataPlan Inc., a Boeing subsidiary, over its involvement in helping the CIA transport them to overseas prisons, where they say they were tortured. The Bush administration asserted the state secrets privilege in the case last year, saying that if the suit were permitted to go forward, it would undermine national security. It was dismissed.

Where Obama stands:

When the detainees appealed earlier this month, Obama's Justice Department stuck to that line. The Los Angeles Timesreported, "The Obama administration [took] 'exactly' the same position as the previous White House..."

Islamic charity's suit over warrantless wiretapping

The Bush position:

The Oregon chapter of Al-Haramain Islamic Foundation, a charity that made the Treasury Department's watch list of terror supporters, sued the Bush administration for eavesdropping on private conversations without a warrant. Documents that revealed the wiretapping were accidentally sent to the charity; the Bush administration said they were "state secrets" and sought to block the suit.

Where Obama stands:

The Obama administration has so far taken the same stance as the Bush administration. Last month, administration lawyers filed an emergency motion to block the case, arguing that evidence in the lawsuit would reveal damaging national security secrets. A court last week denied that request, and though the Justice Department could appeal the ruling, the suit is now poised to go forward.

The interrogation of a now-free British resident

The Bush position:

The British and U.S. governments possess documents describing the allegedly abusive interrogation of recently released Gitmo detainee Binyam Mohamed, who is British. Mohamed's lawyers have sought the disclosure of the documents, but officials from both countries have repeatedly blocked disclosure, citing national security risks.

Where Obama stands:

The White House commended British authorities in a written statement on Feb. 4 for keeping the documents secret, thanking the British government for "its continued commitment to protect sensitive national security information and preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens." Mohamed was released from Gitmo this week, but his lawyers will continue to seek the documents.

Secret CIA detention and interrogation memos

The Bush position:

In this FOIA lawsuit, the ACLU seeks documents describing the CIA's interrogation and detention practices. The Bush administration argued against disclosing the documents (PDF), because information about those practices would allow al-Qaida and other enemies to develop ways to resist interrogation methods.

Where Obama stands:

The new administration hasn't weighed in yet, and the CIA has declined to comment on the case. Lawyers at the ACLU said in their appeal (PDF) this month that the government's argument against disclosure is now defunct because the Obama administration has limited the CIA's authorized techniques to those already published in the unclassified Army Field Manual.

The detention of an enemy combatant on U.S. soil

The Bush position:

Ali Saleh Kahlah al-Marri was detained in Peoria, Ill., in 2001, and has been held in a naval brig in Charleston, S.C., without charges. Bush legal memos assert the president's total control over military operations, even domestically. In December, the Supreme Court accepted al-Marri's case, which would test a key part of that assertion, the military detention of U.S. residents.

Where Obama stands:

The Obama administration made a clear break with the Bush position last week, charging al-Marri for conspiracy in a civilian court. The administration's decision to charge al-Marri does not, however, articulate its stance on the question of the president's domestic detention authority. Al-Marri's lawyers said they will still press to have the case heard by the Supreme Court.