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Monday, September 28th, 2009

[digg-reddit-me]Last week, Glenn Greenwald felt compelled to make the same basic point that Jack Goldsmith did back in May just before the dueling speeches by Cheney and Obama – that the Obama administration’s national security policies do not make for as sharp a break from Bush’s as they have been portrayed. As Goldsmith described the similarity:

[T]he Obama practices are so close to the late Bush practices is that the late Bush practices were much different than the early ones. In 2001-2003, both fear of terrorism and Bush unilateralism were at their height. But in the last six years, the terror threat has appeared to fade (at least to the public), and Congress and the courts have engaged on terrorism issues, pushing back on some, approving others, and acquiescing in yet others…In these and many other ways, U.S. terrorism law looked wholly different at the outset of the Obama administration than in 2001-2003. The law was much clearer in 2009, and there was much greater consensus–across political parties and the branches of government–about permissible policies and their limits. Many Obama policies reflect that consensus.

Goldsmith doesn’t mention another relevant fact about the Bush administration’s approach – that even as it scaled back the vast powers it asserted in the aftermath of September 11 and rolled back certain practices, it was careful to never admit a mistake or repudiate the extreme measures it had used. At the same time, even to the extent that it did do so, the Bush administration had no credibility because they had lied about what they were doing in the first place – from warrantless wiretaps to torture.

Greenwald though omits this vast change of behavior between the worst practices of the early Bush administration and its later years. Because to bring that up would undermine his propagandistic purposes which involves attacking Obama. See what I mean:

This leads to a more general point:  when it comes to uprooting (“changing”) the Bush/Cheney approach to Terrorism and civil liberties — the issue which generated as much opposition to the last presidency as anything else — the Obama administration has proven rather conclusively that tiny and cosmetic adjustments are the most it is willing to do.  They love announcing new policies that cast the appearance of change but which have no effect whatsoever on presidential powers.  With great fanfare, they announced the closing of CIA black sites — at a time when none was operating.  They trumpeted the President’s order that no interrogation tactics outside of the Army Field Manual could be used — at a time when approval for such tactics had been withdrawn.  They repudiated the most extreme elements of the Bush/Addington/Yoo “inherent power” theories — while maintaining alternative justifications to enable the same exact policies to proceed exactly as is.  They flamboyantly touted the closing of Guantanamo — while aggressively defending the right to abduct people from around the world and then imprison them with no due process at Bagram.  Their “changes” exist solely in theory — which isn’t to say that they are all irrelevant, but it is to say that they change nothing in practice:  i.e., in reality.

Greenwald makes a big deal of the fact that the changes are in “theory” not “in reality” – but neglects to mention that most of the worst aspects of Bush’s abuses of power were only present in theory by the time Obama took office – due to pushback from Congress, the Courts, etcetera. Bagram is a serious issue – and Greenwald is entirely justified in talking about that particular hypocrisy. But the “ideological wind tunnel” that is Greenwald’s calling card causes him to omit key facts here – as it so often does.

And you n0tice – in setting up his own “spike,” Greenwald implicitly accepts Goldsmith’s contentions – that the Bush administration had stopped torturing, had reconstituted its wiretapping program with Congressional and court approval, and had otherwise already ceased the worst abuses of power.

A final note: Greenwald’s approach to Obama seems to have more to do with his discomfort with defending any establishment than with actual policy. There are certainly reasons for civil libertarians to be unhappy with Obama, but for Greenwald, there’s a strong sense he wishes no part in defending any Establishment. This makes him a gadfly – which while often useful does not make him right all the time.

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Posted in Barack Obama, Criticism, National Security, The Bush Legacy, The Opinionsphere, The War on Terrorism | 2 Comments »

Obama’s Dangerous Hypocrisy on Prisoners at Guantánamo and Bagram

Wednesday, September 16th, 2009

[digg-reddit-me]As a strong supporter of Barack Obama’s candidacy, and of his administration in general, I must concede that Glenn Greenwald yesterday proved why he is such a valuable commentator in taking the administration on. He kept his rhetorical tics to a minimum and avoided the “ideological wind tunnel” effect that so much of his writing produces – and this allowed his piece to have a broader impact.

Alright – he started off with the same weirdly exaggerated sense of perspective – proving my previous point that Glenn Greenwald uses hyperbole the way other writers use punctuation:

It’s now apparent that the biggest sham in American politics is Barack Obama’s pledge to close Guantanamo and, more generally, to dismantle the Bush/Cheney approach to detaining accused Terrorists. [my emphasis]

But Greenwald quickly got down to making the substantive case – which on this front is extremely strong. On my blog and elsewhere, I have brought up Bagram as an example of Obama’s most clear failure, though I haven’t yet made the sustained case as Greenwald does.

As I wrote earlier, the Supreme Court’s rulings on the rights of detainees to certain basic rights at Guantánamo was based on the idea that our government should not be able to deprive an individual of rights merely by moving them to a particular location. Yet this is exactly what the Obama administration is claiming. Our nation’s freedoms are grounded in our traditions, and at the base of these traditions is a single, fundamental restriction on the state. To quote Winston Churchill:

The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious, and the foundation of all totalitarian government whether Nazi or Communist.

Greenwald does not attempt to reconcile Obama’s views about Guantánamo as a candidate with the positions taken by his administration now – he simply hurls the well-justified charge of hypocrisy while tossing in a few snide remarks about those who continue to support Obama (which is a Greenwald staple.) He does not try to grapple with the issues the Obama administration faces in trying to deal with the political, legal, and strategic consequences of the radical actions taken by the Bush administration.

Greenwald is not the “fox” of Isaiah Berlin’s parable, but the very Bushian hedgehog. And on this issue, the hedgehog has grasped the basic truth: In condemning Bush for Guantánamo and the secret CIA prisons while expanding Bagram and using this different location for the same or similar purposes cannot stand, the Obama administration is engaging in rank hypocrisy which we cannot let stand. (As Greenwald points out, its unclear what exactly Bagram is being used for as the Obama administration has been keeping too many documents secret.) I highly reccomend you read Greenwald’s important post from yesterday.

By acting this way regarding detainees at Bagram, Barack Obama threatens the very Rule of Law that he came into office promising to protect – and that he swore to protect when taking the oath of office. Liberals must oppose this; conservatives must oppose this; libertarians must oppose this; Americans must oppose this, and be guided by “Something wiser than our own quick personal impulses… [&] sweeter than the taste of a political victory.”

We must be guided, simply, by Our Lady of the Law.

[Image by DVIDSHUB licensed under Creative Commons.]

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Posted in Barack Obama, Criticism, National Security, Politics, The Bush Legacy, The Opinionsphere, The War on Terrorism | No Comments »

Obama and the Rule of Law

Monday, May 18th, 2009


[digg-reddit-me]Right-wingers and some conservatives are trying out a new approach in their attacks on Obama – as you can see from the growing meme on the right that Obama has no respect for the Rule of Law. I’ve come across this meme in a George Will column, a Wall Street Journal editorial, and in a blog post by Jim Manzi for the National Review / The American Scene all last week. All three authors have focused on one particular event – Obama’s role in the Chrysler sale/bankruptcy/bailout. I for one am glad to see the National Review and Wall Street Journal finally coming around to accepting the importance of the Rule of Law after eight years of promoting George W. Bush’s blatant disregard for the law – but I digress.

The past eight years have demonstrated to many Democrats and liberals the vital importance of the respect for the Rule of Law to a well-functioning state – as President Bush concentrated more and more power in the White House and asserted authorities both beyond and over the law – which is why an accusation that President Obama is not respecting the Rule of Law must be taken seriously.

It is hard though to take the example all three authors use seriously – Obama’s intervention in the Chrysler mess. I can understand why people might object to what Obama did – if you consider unions to be a malevolent force, you certainly don’t want them helped out – and it is unseemly that they donated so much to Obama only to be rewarded now (of course, the creditors also gave Obama a great deal of support.) But neither of these objections is based on Obama disrespecting the Rule of Law.

Certainly, even these authors are not accusing Obama of disrespecting the Rule of Law in the same manner as George W. Bush – who did not believe he was bound by law when acting to protect Americans. The unitary executive theory he accepted and Cheney, Addington, and others used, is a direct assault on the idea that the president is bound by the law. Obama does not take this position.

These authors make a big point of the fact that Obama is abrogating contracts – but this objection is a bit silly. Obama is not a party to these contracts – and thus has no obligation to honor them personally. The Contracts clause of the Constitution – the Law which it is being alleged Obama has broken – was meant to constrain the individual states rather than the President or even the Congress. Congress was in fact given the power to abrogate contracts through bankruptcy proceedings in the Constitution. Obama – in intervening in the case of Chrysler – helped to negotiate an out-of-court settlement of the matter. Out-of-court settlements happen all the time – and are welcomed by overburdened judges who see it as better to allow all sides to come to an agreement rather than having to order them to agree.

To call this a violation of the Rule of Law is disingenuous at best.

What these authors are right to be concerned about is the concentration of power that undermines the system of the Rule of Law – as the government’s role in backstopping the finance and auto industries leaves it with enormous leverage. But their fears should be allayed by the fact that most of these interventions are temporary. (Of course, George Will is on the record disbelieving this based on the old adage – as are all of Will’s beliefs – that once government has taken a power, it will not give it up.)

Liberals have continued to voice a different set of concerns about Obama’s respect for the Rule of Law – pointing to the many Bush administration positions Obama has accepted. But they key difference between Bush and Obama is that even as Obama may be putting forward positions on these issues which are controversial, Obama has given the sense he will concede if his legal means of asserting these claims are defeated. Bush in at least one instance refused to end a clearly illegal program despite the fact that his own Justice Department had declared it illegal. 

I do find a few areas of concern. The power of the executive branch has grown enormously in the financial crisis – between the Stimulus Bill and the bank bailout. While in the short-term this may be necessary, if steps are not taken, this would undermine the balance of power between the federal government and the states. While this in itself is not a violation of the Rule of Law – it does weaken the system which together helps maintain the Rule of Law. And it is this that conservatives and right-wingers seem to be ojecting to – but their rhetoric about the Rule of Law being disregarded is hyperventilationist – and for those who did not likewise say the same of our previous president, hypocritical.

But by far the most disturbing manner in which Obama is undermining the Rule of Law is in how his administration is keeping Bush’s policies on the matter of Bagram. The Supreme Court’s ruling on the rights of detainees to certain basic rights at Guantanamo was in a large part based on the idea that our government should not be able to deprive an individual of rights merely by moving them to a particular location. But this is exactly what the Obama administration is claiming with regards to the detainees brought to Bagram from around the world. Our nation’s freedoms are grounded in our traditions. This includes a respect for contracts, a balance of various powers, and an energetic chief executive – but at it’s base, our traditions are grounded in a single, fundamental restriction on the state. To quote Winston Churchill:

The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious, and the foundation of all totalitarian government whether Nazi or Communist.

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Posted in Barack Obama, Financial Crisis, Law, Politics, The Opinionsphere | 1 Comment »

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