RSS Feed MenuWhen I watched Obama’s speech at the National Archives, it occurred to me that Obama has an opportunity that he is not willing to truly invest in. Instead of embracing the reality that fear has altered our culture and fueled an intense debate questioning the limits of one’s right to privacy, due process and a fair trial vs. one’s basic assumption that the police power of the government is capable of protecting them, Obama defers to the status quo. He expounds on mistakes that the Bush administration made, the ad hoc legal system they proposed and mended on the fly, and the ‘realities’ of terrorism. He profoundly states that, “[terrorism] will be here 5, 10, and 20 years from now”. Understandably so. But that isn’t the only reality Americans deserve to hear.
Obama goes on to say “Let me begin by disposing of one argument as plainly as I can: we are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people”. But how can a determination such as that be made before all the detainees have been tried? If detainees are not going to be released regardless of the trial decision, then what’s the purpose of the trial?
Amongst the five categories that Obama outlines for the handling of detainees, there are two trial options. One in federal court, the other by military commission. No detainee in his right mind would choose a trial by military commission over a federal court. Not when a federal court assumes a detainee to be innocent until proven guilty – just like any other suspect – and provides more guaranteed protections and privileges. But that decision won’t be made by detainees, it’ll be made by the federal government. By having the option of venue the government is able to utilize evidence as they see fit - justice be damned.
Another reality is that Obama isn’t currently prepared to fully question the Bush enemy combatant policy. If he were, he would have to ask questions that no one really wants to hear an answer to, including himself.
Questions such as: if a suspected terrorist is acquitted at trial or a military commission and set free, then commits a deadly act of terrorism, who will have blood on their hands? Would the public hold Obama responsible? Or would the public be content with having granted a suspect their constitutional right to a fair trial, clothed in a presumption of innocence?
Would the police power of the government use a ridiculously broad definition of what constitutes terrorism to ensnare those suspected of much lesser crimes, if so, who would be responsible? (Let’s not forget that the Terror Watch List which prevents persons from boarding airplanes in this country has over 1 million people on it. That’s just the beginning of what we are likely to see in the future). Overly broad and expansive powers being misused for the “right” reasons. So, frankly, even if you are a supporter of Obama’s you should be leery of the proposal’s unprecedented aggregation of power. Long after he leaves office such power will reside in the executive branch.
Better yet, who can right the wrongs? While the Supreme Court has been willing to hear and rule on some recent terrorism cases, notably Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla, it’s still questionable how far the Court is willing to challenge the executive branch and Congress, especially in a time of ‘war’. Researchers at Duke Law School have concluded that historically “[t]he willingness of the Supreme Court to protect civil liberties in times of war has varied.” The case of Ex Parte Milligan included a petitioner bringing suit alleging a military commission did not have proper authority to try him. Jurisprudence trumped fear and he subsequently won and was tried in circuit court.
Obama has an opportunity to pose such questions and reassure Americans that the constitution has indeed done battle with analogous issues in a similar context. Terrorism didn’t start with 9/11, and we shouldn’t bury the Bill of Rights with the victims of it. If Obama isn’t willing to utilize this opportunity to transition from a fear-focused doctrine to a freedom-centered one, this opportunity will surely define him. The legacy of “prolonged detention” will be his and his alone.
Bulldoglover100 // Jun 2, 2009 at 9:04 pm
You can say it all day long but the American people will always consider it a mess that Bush & Cheney left on the rug in the White House….check the polls but hey if your one of those who thinks is someone says something enough times then people will begin to believe it…go ahead but it wont change reality.
balconesfault // Jun 2, 2009 at 11:25 pm
The writer has a point, that Obama must find his own solution to the mess that Bush left. But seriously, the conclusion of the piece is unsupportable. Any “legacy of ‘prolonged detention’ ” will be viewed by future generations as a Bush created problem that Obama could not find a solution for. It is like blaming a surgeon that a gunshot victim is paralyzed when he has to remove the bullet from the spinal cord, rather than blaming the gunman who pulled the trigger.
sinz54 // Jun 3, 2009 at 6:46 am
balconesfault: I agree with you. The “legacy of prolonged detention” was a direct consequence of a specific decision Bush had made: Taking terrorists out of circulation (so they couldn’t attack us) was more important than putting them on trial.Bush envisioned Gitmo as a POW camp for civilian terrorists. And POW camps don’t try prisoners; they just hold them in a stockade for the duration of the war.The problem was that Bush missed his chance to end the war quickly when Osama bin Laden escaped. So what we now have is a POW camp for a permanent war.
Bulldoglover100 // Jun 3, 2009 at 3:49 pm
Sinz54…Do you really feel that Bush envisioned a camp for “civillian terrorist”???? I don’t believe that for a minute and the facts do not back it up.The Bush White House never approached those held at Gitmo as simply civillian terrorist That is not what they relayed to the American people though they told so many lies that who really knows now? Cheney has now came out and stated for the record that there was never any corrolation between 9/11 and Iraq….which was the basis for Cheney and his endless war….that companies he owned stock in profitted from…..As for all of those at Gitmo being prisoners of war? Many were people we ’suspected” but never had any proof at all against……that’s not a POW in anyone’s book other than those who have no excuse for their actions.This use to be America but during the last 8 years? I had to question what was going on with the rule of law in this country.Some in our party talk about Obama as a socialist….what were we the last 8 years when we abused the constitution? and ignored treaties we had enetered into in good faith?
John Wilson // Jun 4, 2009 at 2:38 am
Balconesfault, thanks for reading. I don’t actually conclude that future generations will see this issue as solely created by Bush. What I do feel is that Obama’s stamp will be on it regardless. The question will be: will it be a legacy of supporting civil rights and the rule of law or one centered on policies shaped too often by fear.
Bulldoglover100 // Jun 4, 2009 at 6:05 am
Nice Mr. Wilson LOL only deal with the one post that might even come close to agreeing with your insanity…why how very right wing nut job of you!
Bulldoglover100 // Jun 4, 2009 at 6:08 am
You dont get it John. In our attempt to tar the President you distort the facts to fit your agenda and no one here believes or agrees with you apparently. You want to know what history will do or see? History will deal with the facts and the facts speak for theirself as did the American people.Obama will ALWAYS been seen as attempting to clean up Bush & Cheney’s mess. No more or less but hey if magical thinking gets you through the day be our guest just dont look for respect from educated people…only the unedcated nut jobs would have agreed with you on this one.
sinz54 // Jun 4, 2009 at 10:27 am
Bulldoglover100: Here’s the original Executive Order, signed by Bush on 13 November 2001, which outlines the purpose of a detention facility:”By the authority vested in me as President and as Commander in Chief….”Any individual subject to this order shall be –” there is reason to believe that such individual, at the relevant times,(i) is or was a member of the organization known as al Qaida;(ii) has engaged in, aided or abetted, or conspired to commit,acts of international terrorism, or acts in preparation therefor,that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy….”….shall be….”(a) detained at an appropriate location designated by the Secretary of Defense *outside* or within the United States;(b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria;(c) afforded adequate food, drinking water, shelter, clothing, and medical treatment;(d) allowed the free exercise of religion consistent with the requirements of such detention; and(e) detained in accordance with such other conditions as the Secretary of Defense may prescribe. “http://www.globalsecurity.org/security/library/policy/dod/011113-bush-military-order.htmPretty clear, isn’t it? Bush was handing over the treatment of detainees to the Defense Department, not the Justice Department.
balconesfault // Jun 4, 2009 at 11:50 am
John: “will it be a legacy of supporting civil rights and the rule of law or one centered on policies shaped too often by fear.”That is a great question, but since Obama is a politician, and not a member of the judicial branch, it is not surprising that whatever solution he arrives at will have a political component. A politician who is a civil libertarian, as I believe Obama to be, must balance his goal of defending those civil liberties with the goal of maintaining the support of the electorate for himself and his party – or he will be a politician who pisses away his ability to accomplish much of his agenda (see Clinton with his too rapid attempt to eliminate discrimination against gays in the military).In essence, Obama is dealing with a situation that has been created from fear, and he is striding into a strong headwind of the fear that Cheney and the rest of the Republicans are determined to keep whipping up. It does not surprise me that he moves forward at a cautious rate, conserving his energy, because there’s still a long trudge ahead.
John Wilson // Jun 5, 2009 at 11:26 am
Bulldoglover100: Ok, let’s assume as you have that voters solely view the detainee issue as a Bush one that Obama is cleaning up, do you think that then precludes voters from questioning whether or not Obama is actually doing a good job cleaning up the mess? One could argue that Obama was elected to clean up a big mess, whether it was unemployment, housing, the credit crisis, diplomacy with allies and enemies and so forth. Frankly, I don’t think it matters whether he is viewed as the clean up man or not because he will be judged in part on how well he cleans it up. Lastly, the point of my article wasn’t who’s fault it is – I believe that to be somewhat apparent – the point of the article is to directly question assumptions I believe the Obama administration is making and conversations they are avoiding.
John Wilson // Jun 5, 2009 at 11:29 am
balconesfault, sure I agree with your view. This article is merely about raising questions that the electorate should keep in mind. This is no time to fall asleep at the wheel as far as civil liberties are concerned. As a former constitutional law professor, Obama has more responsibility to uphold the constitution than his predecessor did. Why? Because he understands the nuance of the document better than Bush ever could.