Americans’ surprise at the announcement may be best explained by a quick look at Obama’s domestic policies when it comes to the international war on terror — so let’s take a glance at Glenn Greenwald’s page today at Salon. Just below his discussion of Obama’s Nobel prize is a lengthy analysis of how the president, now with the help of Congress, has repeatedly suppressed evidence of war crimes committed by the previous administration.

From trying to exempt abuse photos from the Freedom of Information Act to dismissing torture cases on “state secrets” grounds, encouraging Congress to limit civil liberties protections against broad-based FBI snooping and refusing even to investigate cases where the Defense Department appears to have tortured detainees in its custody (let alone investigating the policymakers who approved of the abuse), the Obama administration has so far amassed a disappointing record on “peace”-related activities at home.

The Nobel Committee was obviously looking at different things when it made its award, and emphasized Obama’s ability to “capture the world’s attention” and offer people hope for the future. That’s a good start, and hopeful rhetoric is important and a welcome change for the so-called “leader of the free world.” But true diplomacy and progress and “peace” can’t come from hiding the brutality of the past.

So far, just as he’s promised a new diplomacy, the President has made lots of hopeful promises about a new transparency and accountability in government. He has yet to follow up on them.

That may be true, but there’s an aspect of one of Brennan’s recent speeches that, if actually implemented, would have the opposite effect.

As Spencer Ackerman reported here earlier, Brennan, in his speech to the Center for Strategic and International Studies, declared an end to the “war on terror.”

“This is not a ‘war on terror,’” Brennan said. “We cannot let the terror prism guide how we’re going to interact and be involved in different parts of the world.”

Well, if that’s the case, then how is the Obama administration going to justify “preventive detention” of terror suspects under the laws of war?

That power to detain supposedly “dangerous” people who can’t be proven guilty in any sort of court is a power the Bush administration relied on heavily and the Obama administration continues to claim. It’s at the core of President Obama’s claim that there’s a class of people who cannot be tried in criminal court or even by military commission, yet still must be held in prison because they’re “dangerous.”  That’s all been justified legally by saying that we’re at “war,” and terror suspects are warriors in the “war on terror.”

Now that the Brennan has declared an end to that war, is the Obama administration willing to relinquish its right to detain terror suspects picked up anywhere in the world?

So far, Obama has not made clear how he intends to use this “preventive detention” authority he claims that he has, though it’s as broad a detention authority as Bush Attorney General Michael Mukasey claimed over a year ago. But if Brennan really has the sway over the administration that Wheeler suggests he does, then maybe Obama will soon have to concede that the “war on terror” is over — and so is his corresponding power to seize and imprison its supposed “warriors” anywhere in the world.

Economists and media pundits — themselves mostly gentlemanly elites anxious to please corporate America — are slow to make the accusation that what happened here was truly criminal, and so miss the real story. The American people understand that when a group of bankers shuffle some paper unproductively and get away with hundreds of billions of dollars in bonuses, yet cause a loss of $40 trillion in global wealth and cause approximately 100 million people to become unemployed worldwide, there is only one word to describe it: criminal. [...]

Why isn’t the FBI breaking down the doors of the commercial and investment banks and grabbing computers so as to preserve incendiary e-mails that will most definitely implicate executives? Why are managements that caused this still in their jobs and still receiving bonuses? Are the bonuses paid to the folks at AIG that caused its collapse nothing more than hush money? How can the rating agencies still be in business? Why don’t we make one arrest and lean on the bankster to see if he will fold like the cheap suit that he is and name other conspirators? The FBI spends more time investigating $2,000 drug buys than they have to date investigating the biggest heist in the history of the world: $40 trillion, that’s trillion with a T, that’s 40 million bags each containing $1 million.

Talbott’s arguments bring to mind a recent investigative series by the Sarasota Herald-Tribune, which used public records to document who was behind the flipping and mortgage fraud that have decimated the area, with $450 million in defaulted loans.

Nearly 40 percent of the people involved in questionable flips in Sarasota and Manatee counties were industry insiders — real estate agents, developers, lawyers and mortgage brokers. Of the 37 groups discovered by the newspaper, 21 were organized by real estate agents or mortgage brokers.

Some of the people who organized or participated in flips were considered leaders of their profession. One was recognized as one of the top 50 Re/Max real estate agents in the world. Another won multiple awards from the Mortgage Bankers Association of Florida. Some flippers identified by the Herald-Tribune were seen as key clients by local banks and were allowed to pick their own appraisers or had loan approvals expedited to quickly close deals.

In the email thread, Johnson agrees that more criminal investigations are called for, but points out that investigations can be lengthy and more charges actually may be on the way. He adds that an equally worrisome problem were the actions during the crisis that were perfectly legal — such as campaign contributions to politicians who did the bidding of the financial industry.

That’s true, but the criminal piece of this shouldn’t get left behind. I’ve heard the argument before that numerous criminal investigations are ongoing and it’s just a matter of time before we begin to see more prosecutions — but I’ll believe that when I finally see it. In the meantime, the Sarasota stories point out that the real estate industry has a responsibility to do a much better job of policing itself. Award-winning agents who engaged in flipping schemes based on fraud should be hounded out of the profession. And if the industry won’t do it on its own, then someone else needs to do it for them, either by aggressive criminal investigations and prosecutions or some kind of public censure.

As it stands now, everyone up and down the line is getting away with it when it comes to predatory mortgage lending, from the brokers at the bottom to the investors at the top. As Talbott points out, it’s not hard for the American public to figure out that something criminal went wrong in a $40 trillion meltdown. Now it’s the justice system’s turn to do the same.

The Lieberman-Graham Amendment, also known as The Detainee Photographic Records Protection Act, is strongly supported by President Obama. It would amend the Freedom of Information Act — the same one Obama promised to construe liberally in favor of releasing information — to allow the president to conceal the photos of detainee abuse that the administration has already been ordered to produce in a pending lawsuit brought by the American Civil Liberties Union.

Oddly, the Obama administration and Senate Democrats seem to have followed the advice of Andy McCarthy at National Review, who a few weeks ago specifically suggested that the administration need not follow the court order requiring release of the photos; Congress, with the White House’s support, could just amend FOIA or adopt a new law to allow Obama to conceal the photos, and avoid having to bother with the pesky federal court system, which so far hasn’t given the administration its way.

The only problem is, how is the Obama administration going to reconcile this move with the President’s eloquent promises on his first days in office?

Remember this Memorandum on Transparency and Open Government?

Government should be transparent.  Transparency promotes accountability and provides information for citizens about what their Government is doing. Information maintained by the Federal Government is a national asset. My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use.

Or this statement by Attorney General Eric Holder during his confirmation process?

I firmly believe that transparency is a key to good government.  Openness allows the public to have faith that its government obeys the law.

So isn’t it strange that the government, rather than appealing a court order pursuant to its rights under the law, now wants to defy the court by asking Congress simply to change the law?

I agree with Glenn Greenwald on this one:

If, as Obama claims, there are legitimate reasons to suppress these photos under FOIA’s exemptions (including its very broad national security exemptions), then the Supreme Court can reverse the two lower court rulings ordering disclosure — as Obama is asking it to do.  But there is no good reason to vest the Obama administration with the unilateral power to simply waive FOIA requirements simply because it loses in court and decides it doesn’t want to comply with court rulings and with current transparency laws.

And Nick Baumann at Mother Jones, who calls the photo suppression bill “an abomination that is reminiscent of the worst Bush-era excesses.”

It gives the executive branch the power to withhold an entire category of information from public scrutiny without any review. This law is Example A of the theory of the Presidency that says citizens should just trust the benevolent executive to do the right thing. Even in you oppose releasing some of the photos, I don’t see why you would want to give the White House the power to unilaterally decide what’s best. It says a lot about the Congress that members are willing to give Obama this kind of power. It says a lot about Obama that he supports this bill. Thank God for Barney Frank.

Well, except that late last week, Frank switched his vote.

In his recent speech at the National Archives, Obama said:

I ran for President promising transparency, and I meant what I said. That is why, whenever possible, we will make information available to the American people so that they can make informed judgments and hold us accountable. But I have never argued – and never will – that our most sensitive national security matters should be an open book. I will never abandon – and I will vigorously defend – the necessity of classification to defend our troops at war; to protect sources and methods; and to safeguard confidential actions that keep the American people safe. And so, whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions – by Congress or by the courts.

Now that the court has refused to give the president what he wants, he’s hoping Congress will. He’s won in the Senate already. Let’s see if the House Democrats will stand their ground on this one.

“Civil liberties advocates are accusing the Obama administration of forsaking campaign rhetoric and adopting the same expansive arguments that his predecessor used to cloak some of the most sensitive intelligence-gathering programs of the Bush White House,” Johnson wrote.

No kidding.

While The Post has mentioned some of these issues in previous stories, it hasn’t given the Obama administration’s surprising position on “state secrets”  nearly the sort of sustained attention that it deserves.  The Obama administration’s use of secrecy privileges to protect the previous administration’s lawbreaking has been going on for months, as I’ve been writing about here, and other legal bloggers, such as Glenn Greenwald at Salon, have been extensively reporting on as well.

Most recently, in the al-Haramain case, in which an Islamic charity sued the government for wiretapping the group and its lawyers without a warrant, the Obama administration told a federal district court that it simply did not have the authority to do what the court ordered (turn over critical documents that would allow the suit to go forward) and hence, it was not going to comply. What’s more, the new, open, free information-loving administration basically threatened to send in the federal marshals to seize from the judge’s files the offending “secret” documents at issue in the case, if he planned to turn them over to al-Haramain’s lawyers. It didn’t matter that the organization’s lawyers had already seen them, and knew exactly what they revealed: that the Bush administration had been secretly wiretapping the Islamic charity and its attorneys, without a warrant, in violation of federal law.

This was the second major Obama Justice Department showdown over the “state secrets” privilege (explained here). The first, which TWI was first to write about, was in the case of Binyam Mohamed and other torture victims suing Jeppesen Dataplan, the Boeing subsidiary that assisted the CIA in transporting the men to be tortured. Represented by the American Civil Liberties Union, the men have pressed their claims against the company in part to avoid the broad range of immunities government officials usually claim — only to be thwarted by the Bush administration’s assertion that the “state secrets” privilege requires its dismissal.  Incredibly – even to the judges, it seemed — the Obama administration has continued to maintain that position.

In response, last month, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and ranking Republican Sen. Arlen Specter (Penn.) introduced a bill that would require judges to look at the classified evidence when the government makes the state secrets claim, rather than blindly accept the government’s claims about the sensitivity of the materials.

Now that the mainstream media is finally taking a serious look at this — as I’ve noted before, some in the press seem to have been willfully avoiding some of these troubling Obama administration positions — that legislation might have a chance.

Not only are most immigrants in detention centers imprisoned for months or even years despite not having committed a crime, as I wrote Monday, but, as Glenn Greenwald points out in Salon, while the heterosexual legal spouse of a U.S. citizen is allowed to live and work and apply for citizenship in the United States, gay spouses of U.S. citizens get no such privilege. Meanwhile, we have voters in California and elsewhere voting to make it impossible for gay people to get married and obtain that right. Whether intentionally or not, turns out they’re making an anti-immigration argument, too. The rule is estimated to be keeping thousands of people in committed same-sex relationships from even living in the same country.

While everyone’s expressing surprise and disgust at the various John Yoo and other Office of Legal Counsel memos that finally surfaced yesterday (with much-deserved disgust, I might add), it’s important, even for Obama supporters, to keep a close eye on what the new administration is still doing to cover up the illegal activities of the past.

Although the Obama administration insists it’s not engaging in warrantless wiretapping, as the Al-Haramain case demonstrates, it is still very much covering it up. And given that we all know warrantless wiretapping occurred, and that Al-Haramain already knows it was one of the program’s targets, it’s really not at all clear why.

As Greenwald points out, the arguments in the government’s brief are like Bush-Cheney-Yoo all over again:  the new administration is insisting on absolute, un-reviewable executive power in matters of national security.

The only logical reason for making those arguments now is because President Obama wants to preserve that broad view of executive power, just in case he decides he one day needs it. Even those who trust Obama to exercise it better than his predecessor did ought to realize that leaving that power in place is a serious risk.

So how might that affect the new Obama administration’s plans to respond to the Bush-era war crimes? In fact, not so much. As Mark Benjamin writes in Salon today, the Obama team has so far carefully avoided any plans to prosecute Bush administration officials, reportedly planning a bipartisan investigatory commission – a sort of “truth commission,” perhaps along the lines of one proposed by Rosa Brooks or even Stuart Taylor, who first publicly raised the Bush pardon idea in the first place – as a less politically charged alternative.

That won’t satisfy those who want to see the perpetrators of illegal torture policies behind bars. But if President Bush does decide to go ahead and issue a blanket pardon for all involved, the reported Obama plan has the benefit of at least airing the truth about what happened, (and perhaps publicly humiliating the perpetrators), even if President Bush tries to use his executive power to bury it.