"Civil Liberties in the New Regime"
I think you have to admit that the Obama administration legal justification for why they can’t be forced to release innocent Uighur detainees currently held in Guantanamo Bay is pretty clever:
Petitioners’ continued presence at Guantanamo Bay is not unlawful detention, but rather the consequence of their lawful exclusion from the United States, under the constitutional exercise of authority by the political Branches, coupled with the unavailability of another country willing to accept them. Because the bar to petitioners’ entry into the United States is constitutionally valid, their resulting harborage at Guantanamo Bay is constitutional as well.
For all I know, this is even right as a matter of law. But as Hilzoy says, it clearly fails the “just do the right thing” test. I know some people who are “disappointed” with the Obama administration’s record on civil liberties. I’m not, frankly, because I don’t think it really makes sense to expect any administration to unilaterally divest itself of the powers that have been amassed by its predecessors.
Civil liberties have to be guarded by the courts and—especially—by Congress. Part of why it’s so problematic for congressional Republicans to be so busy attacking the Obama administration as too hesitant to torture people and so forth is that the natural order of checks and balances is totally turned on its head when the opposition is urging the executive to seize more power and become less transparent. Nobody’s going to wage a tough political battle to give up power.