Hopeful Signs

From the Washington Post:

“In one of its first actions, the Obama administration instructed military prosecutors late Tuesday to seek a 120-day suspension of legal proceedings involving detainees at the naval base at Guantanamo Bay, Cuba — a clear break with the approach of the outgoing Bush administration.

The instruction came in a motion filed late Tuesday with a military court handling the case of five defendants accused of organizing the Sept. 11, 2001, attacks on the United States. The motion called for “a continuance of the proceedings” until May 20 so that “the newly inaugurated president and his administration [can] review the military commissions process, generally, and the cases currently pending before military commissions, specifically.”

The same motion was filed in another case scheduled to resume Wednesday, involving a Canadian detainee, and will be filed in all other pending matters.

Such a request may not be automatically granted by military judges, and not all defense attorneys may agree to such a suspension. But the move is a first step toward closing a detention facility and system of military trials that became a worldwide symbol of the Bush administration’s war on terrorism and its unyielding attitude toward foreign and domestic critics.”

This is wonderful news. And so is this, from Jack Balkin:

“Some of you may have noticed that Marty Lederman has not been blogging recently at Balkinization. The reason is that he has been working on the Department of Justice Transition team. As of today, the commencement of the Obama Administration, he begins work as Deputy Assistant Attorney General in the Office of Legal Counsel. (…)

Needless to say, I am very pleased for the country by Marty’s new job. I do not exaggerate when I say that Marty is one of the finest lawyers I know, and there is perhaps no better time to put his remarkable talents to use in helping to reform a Justice Department that so badly needs reform.”

Marty Lederman has been one of the most forthright and vocal opponents of the Bush administration’s policies on torture and detention. I have never met him, but you can tell a fair amount by someone from his blog, and the knowledge that Marty Lederman will be taking over John Yoo’s old job is one of the most heartening pieces of news I’ve had in a transition that has had more than its share of them.

One other point about this appointment: at various points during the Presidential campaigns, I recall people arguing that whatever Obama might say about Bush’s expansions of executive power, if he became President he would probably find those powers pretty convenient, and would want to hold onto them. In that light, it’s worth noting that Marty Lederman is the co-author of a set of two articles (1, 2) that considers, in exhaustive (!) detail, the main conceptual foundation of the argument that the President has the right to set aside laws passed by Congress when conducting a war, and (basically) finds it to be baseless. The other co-author, David Barron, has also been appointed to a position in the Obama administration’s Office of Legal Counsel.

In other words: the people who have been appointed to two of the most senior positions in the OLC, which (basically) tells the Executive branch what is legal and what is not, have explicitly and publicly rejected some of the Bush administration’s central arguments in support of its expansive view of executive power. It’s hard for me to see how they could reverse themselves on that score with a straight face, or why Obama would have appointed them if he had the slightest intention of adopting the Bush administration’s views on this topic.

Both of these developments leave me feeling pretty hopeful.