The non-war on terror remains a war on the Constitution...

From Jonathan Turley:

This has been a uniquely bad week for civil libertarians. The Obama Administration appears to be rushing to dispel any notions that Obama will fight for civil liberties or war crimes investigations. After Eric Holder allegedly assured a senator that there would be no war crimes investigation and seemed to defend Bush policies, Harvard Law Dean Elena Kagan, Obama’s Solicitor General nominee, reportedly told a Republican senator that the Administration agreed with Bush that we are “at war” and therefore can hold enemy combatants indefinitely. In the meantime, Obama himself seemed to tie himself in knots when asked about investigating war crimes and leading democrats are again pushing for a symbolic “truth commission.” I discussed these issues in this segment of Countdown this week.

Sens. Dianne Feinstein (D-Calif.) and Lindsey Graham (R-S.C.) both raised the issue with Kagan. Both supported Bush’s policies. Graham asked Kagan: “Do you believe we are at war?”

“I do, Senator,” Kagan replied....

Graham then asked “If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?” “Do you agree with that?”

Kagan replied, “I do” and the marriage with the Bush policies was complete. So much for change. Both Holder and Kagan have now taken such a vow with Senators in order to secure their confirmations. The message appears to be a uniquely English approach to government. We will continue policies and laws that can do great harm to civil liberties, but we will use them in a beneficent way. Your “change” is not that we will get rid of the policies. Your change is that you get us. This “trust us we’re the government” approach to civil liberties was precisely what Madison and other framers rejected. To have a well-respected academic voice such views is a terrible disappointment for civil libertarians, who are being offered a meaningful commission as a type of air kiss toward war crimes.

And as for those of you waiting for a Bush-era Truth Commission (hello, Dana):

Many of us have been alarmed by the obvious effort of the Obama staff to avoid any investigation of confirmed war crimes by the Bush Administration in the torture program. Obama and Attorney General nominee Eric Holder have been suggesting that a war crime investigation would be “uncivil” and “looking backwards.” It has not gone over well since torture is a crime under eight treaties and statutes. Now, General Michael V. Hayden claims that Obama secretly promised him that there would be no war crimes investigation or prosecution in a meeting in Chicago....

Hayden had a closed door meeting with Obama last month in Chicago. He said Obama made it clear that the Bush Administration and CIA staff have nothing to worry about. “He’s looking forward,” Hayden said, “and that’s very appropriate.” If true, it would be confirmation of a bait-and-switch by the democrats. For years, the Democrats insisted that they could not act on torture until they controlled Congress. Once they were given both houses of Congress, Democrats insisted that they could not do anything without control of the White House. When they won the White House, the Democrats insisted that there was not enough time before Inauguration. Now, they are insisting that they must “look to the future: and notably not to the war crimes in the immediate past....

Not surprisingly, Obama aides are denying the story, here.

Of course, there is a very easy way to dispel any such rumors. Obama simply needs to say that any war crimes will be investigated and, if evidence if found of such crimes, prosecuted. That is what it means when Obama and Holder repeatedly say “no one is above the law.” The fact that they have struggled to simply commit themselves to enforce the law is highly worrisome and only serves to confirm the Hayden story.

To those who keep saying we're being too hard, too fast on the Obama administration, two reminders:

1) Not paying attention to early indicators in the Dubya administration helped get us into this mess

2) When you make extraordinary claims for transparency, accountability, and substantive change--as Barack Obama did throughout the campaign--and pledge to be ready for prime-time from Day One, then you invite the scrutiny....