Thursday, May 21, 2009

Words never mentioned in the President's speech today

Bagram.

Extraordinary rendition.

The CIA network of secret detention facilities on foreign soil.

None of these issues has been acknowledged by the Obama administration.

Not to mention this passage on the State secrets doctrine that somehow neglects to mention how many times the Obama DOJ has already invoked it in court:

Now, along these same lines, my administration is also confronting challenges to what is known as the "state secrets" privilege. This is a doctrine that allows the government to challenge legal cases involving secret programs. It's been used by many past Presidents -- Republican and Democrat -- for many decades. And while this principle is absolutely necessary in some circumstances to protect national security, I am concerned that it has been over-used. It is also currently the subject of a wide range of lawsuits. So let me lay out some principles here. We must not protect information merely because it reveals the violation of a law or embarrassment to the government. And that's why my administration is nearing completion of a thorough review of this practice.


That one sentence in bold is true ... but exceptionally misleading.

Or this one on preventive detention:

Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.


You must understand, in reading this passage, that President Barack Obama is both an eloquent man and a legal scholar well aware of the niceties and limitations of language. The words due process never appear here. President Obama never explicitly limits his consideration of extended preventive detention to foreigners or non-citizens. There is nothing in the trial balloons so far released by the administration that would prohibit the use of long-term preventive detention on American citizens considered to be, say, rightwing extremists.

President Obama's supporters will hail the candor and nuance with which he made this speech; they will admire his grasp of the issues, his apparently reasoned approach. They will want us to give him time to work out the problems he has outlined, and they will relentlessly point out that he is cleaning up a mess not of his own making.

This is, on the surface of things, a rational set of arguments, but it is dead wrong.

There is no room for compromise and nuance on the basic constitutional issue at hand:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


That's from the 14th Amendment, for those who do not recognize it.

Strangely enough, after taking the unconditional surrender of Nazi Germany in 1945, the Allies were left with millions of prisoners associated with no recognized government, many of whom were guilty of quite heinous war crimes, and some of whom still offered a direct threat to our soldiers occupying central Europe. Surprisingly, even at the beginning of the Cold War, mechanisms of international law were found to prosecute, convict, and sentence them.

When the Soviet Union unilaterally continued to detain German prisoners until 1955 we condemned this act as contrary to those same precedents of international law.

Yet what we find here is a President asserting it is necessary to craft a new legal standard for indeterminate preventive detention without due process guarantees. This is simply unacceptable.

There are those--especially some of my friends--who will raise the issue of pragmatism. Am I one of those people who never places national security over civil liberties, one of the folks that President Obama today labeled as an absolutist?

No, but I find myself getting a lot closer to that position. Why?

Because during World War Two, when our enemies actually overran Europe and most of Asia, we didn't need these policies....

Because during the Cold War, when our opponents possessed the ability to incinerate 100,000,000 Americans in a single hour, we didn't need these policies....

But thanks to Presidents Bush and Obama, our political leadership has become convinced that we need them now....

The part that scares me about President Obama is that he his so much smarter than President Bush ever was.

He's very likely going to get what he wants.

1 comment:

tom said...

The Obama DOJ will argue that the quoted provision of the 14th is purely a restriction on the States and has no bearing on the Federal government.

And much as I would like to, I can't come up with an effective counter-argument based on anything stated in the Constitution, or from the underlying principles of constitutional law.

If similarly worded restrictions in Art I, Sec 10 applied to the Federal government (and it obeyed them) we would not have, for example, Legal Tender laws.

I am sincerely hoping, but not holding my breath, that someone more knowledgeable than me will tell me why I am wrong.