Thursday, May 17, 2012

Call me crazy

Perhaps you've heard by now that yesterday U.S. District Judge Katherine Forrest (an Obama appointee) preliminarily enjoined enforcement of the sections of NDAA dealing with detention.

I've read several stories about this and they all contain descriptions like this.
The back-and-forth between Judge Forrest and Obama administration's lawyers that goes to the heart of the judge's ruling was stunning to behold. Forrest asked frepeatedly, in a variety of different ways, for the government attorneys to give her some, any assurance that the wording of section 1021 could not be used to arrest and detain people like the plaintiffs. Finally she asked for assurance that it could not be used to sweep up a hypothetical peaceful best-selling nonfiction writer who had written a hypothetical book criticizing US foreign policy, along lines theater the Taliban might agree with. Again and again the two lawyers said directly that they could not, or would not, give her those assurances.
Here's where you can call me crazy. Does anyone else think that perhaps the administration lawyers weren't really interested in defending this bill?

We all know that President Obama signed NDAA reluctantly and wrote a signing statement afterwards. We also know that the bill passed Congress with veto-proof majorities, so he didn't have much choice. What better way to challenge the bill's constitutionality than to have the courts say so?

Of course the only one's who are writing about this are the same folks who are using it to claim their moral high ground while feeding their Obama Derangement Syndrome. So they're the last one's we can expect to consider this possibility.

I could be wrong about it. But I think there's more to this than meets the eye.


  1. Well, I think that the President doesn't care how actual policy happens, just that it does. I take that back: he prefers passing law, but will rely on other means as well.

    I think that the President very much wants to undo some of the most egregious Bush era abridgements of Constitutional liberties, but there are two issues:

    1) He doesn't want to lay down any tools that he thinks will help him do whatever task is at hand as well as he can, and

    2) He also knows that if Congress passes a law negating Bush-era transgressions, Congress can later reinstate them just as easily with another law. It's worse if he were to do it by exec. order, in a similar way--the next GOP Pres could unilaterally reinstate what Obama took away.

    The only way to do it is through juridical principle, on a case by case basis. He is very big on the Constitution, though luke warm I think on the current Court. He gets more in a way by having DOJ fail in court on some things than if Congress passed a law he supported to the same effect.

    Send good vibes for my health. I'm sick, with a ton of work to do, and I don't like it.

    1. Take care Bill. always comes first! Hope you're better soon.

  2. Dear Ms. Pants: (you see, I remembered.)
    I am always so pleased when you make me think about something that I had not caught or didn't think through. You do that a lot, btw. It's why I enjoy your blog so much.

    1. And I am always so pleased when my simple writing makes people think.

      Thanks Sequana!