Emily Bazelon and Dahlia Lithwick discuss the state-secrets privilege and other issues facing Obama's Justice Department.

Real-time discussions with Slate writers.
Feb. 12 2009 12:39 PM

Courtroom Confidential

Emily Bazelon and Dahlia Lithwick take your questions on the state-secrets privilege and other tough issues facing Obama's Justice Department.

(Continued from Page 2)

Washington, D.C.: How would keeping the worst of the Bush administration's secrets hidden defer awkward questions about prosecuting the wrongdoers? Once the United States admits that the "not-so-bad" acts like waterboarding are torture, doesn't the United States have an obligation to prosecute the wrongdoers?

Emily Bazelon: Not necessarily. Identifying who exactly did what wrong is really hard, for starters. Also, prosecutors always have discretion. Political pressure for a prosecution can build, but in the end, the govt has to decide whether to throw its resources behind a criminal indictment. And in this case, where lawyers in the Office of Legal Counsel in the Department of Justice wrote memos approving tactics like waterboarding, the people who relied on that advice have a good defense.

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Elena Kagan + Bush doctrine: I was upset with what appeared to be Kagan's endorsement yesterday of Bush-era policies. Was she simply describing the law as she perceives it to be or is she really endorsing the divine rights and above-any-law status of the Presidency at least as far as the designation of "enemy combatants" goes?

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Dahlia Lithwick: I wasn't at Kagan's hearing but the accounts I have read suggest that she wasn't saying anything much different than Eric Holder said at his: that she believed the President could hold suspected terrorists without trial as war prisoners. In Hamdi in 2004, the high court agreed with the Bush administration that prisoners captured on the battlefield can be held for the duration of the war. We don't know much about what they thought beyond that, but I suspect Kagan was just stating what she believes the law to be.

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Winnipeg, Canada: What's the current state of habeas corpus in your country? Has the Obama team reinstated it yet?

Emily Bazelon: The Obama team halted the military commissions system for reviewing the enemy combatant status of the Guantanamo detainees. It hasn't said yet exactly how it plans to handle all the habeas petitions the detainees brought to try to show that they're not enemy combatants. Essentially, the whole thing is on ice for a little while. But that will change pretty soon, probably this spring, as the administration begins to make court appearances in individual cases. Basically, we can expect that the administration will not adopt the Bush position that the detainees have no habeas rights. But that doesn't determine how it will handle all the different cases.

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Washington, D.C.: Are there ANY Bush legal policies you wouldn't be in favor of Obama overturning?

Emily Bazelon: Well of course the Bush administration took positions in thousands of cases that weren't political in nature, and won't change with a new administration. If you're talking about the Supreme Court's docket this year, I don't think that the Obama DoJ should shift position in a couple of important voting rights cases.

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Washington, D.C.: Republicans should have done it in 2000 with Clinton...lets see, he started rendition, sold state secrets to China, committed perjury, White Water...etc.

I think people with Bush Derangement Syndrome is the political version of OCD...get help

Dahlia Lithwick: Washington. We have had a raft of questions today saying, in effect, that what the Bush Administration did to its prisoners was just not that bad. But having heard over and over that it's liberals who are moral relativists, I am still shocked when people equate authorizing water-boarding with perjury about sex with an intern. I wish we could look back at what happened in the Bush Justice Department without accusing one another of derangement syndromes. I don't think its irrational or ideological or deranged to believe that there should be accountability for that.

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he wants someone who has lived in the real world and engaged with real people and brings that perspective to the court. : How about Ralph Nader? (just kidding)

Dahlia Lithwick: I think that if Ralph Nader were a woman he'd have a better chance. Vegas sportsbooks say the next nominee is very very likely to be a woman.
Thanks folks for chatting with us! It's always a pleasure.

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